Ijcla Vol 1 Issue I 1

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INDIAN JOURNAL OF CONTEMPORARY LEGAL AFFAIRS ( www.ijcla.com)
Indian Journal of Contemporary Legal Affairs
VOLUME 1 ISSUE 1
Website – www.ijcla.com
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CONTACT: 9674408697
Indian Journal of Contemporary Legal Affairs
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EDITORIAL NOTE
" The precepts of the law are these : to live honestly, to injure no-one and to give everyone his
due." - Cicero
This year we witnessed some extraordinary changes in legal sphere of our country. From porn
ban to beef ban, everything came in a flash and had a substantial impact on the socio-political
scenario of our country. Though we cannot say that this is the first time that changes on such a
large scale is witnessed by us, but changes which happened this year had huge political as well as
religious out lash. These changes can be because of the change in the government or due to shift
in popular consensus, but whatever it was these issues were widely debated in the legal as well as
non-legal spheres.
As the name of our journal suggests, it has been primarily established with the aim of critically
analyzing and debating about such legal changes. We, the team Indian Journal of Contemporary
Legal Research intend to bring about consciousness and recognition towards contemporary
national & international issues in the global legal arena, foster innovative research and discover
groundbreaking solutions to the problems prevalent worldwide.
Indian Journal of Contemporary Legal Research is a quarterly peer-reviewed journal that seek
contributions from legal practitioners, scholars, judges, academicians, students from all over the
globe. Areas covered in this issue include recent issues related to constitutional law, air space
law, international law etc. Special importance has been attached to the fact that the language in
each article is free of legalese, thus even a layman can browse through it and gain some valuable
information. Though this issue does not streamline the themes of the journal and depends on a
broad theme titles ‘contemporary legal affairs’, we promise you to provide theme based issue in
the next quarter.
We are glad to receive articles from various law schools across the country including some legal
practitioners. We never knew starting and publishing a journal would be such a tedious task but
with the help and support of an excellent advisory panel everything came out well. We wish
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everyone to enjoy the fruits of our labour both in our journal and our newly started website. We
welcome your comments and suggestion. You may reach us at ijclajournal2015@gmail.com or
post your suggestions on our Facebook page
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ADVISORY PANEL
 Saurabh Ajay Gupta (Additional Advocate General, Punjab and

Haryana High Court,Advocate-on-Record Supreme Court)
 Abhishek Mishra (Former Assistant Professor (WBNUJS), pursuing PhD
from Hamburg University, Germany)
 Dr. M.P. Chengappa, {LL.B, LL.M, M.A. (Public Administration)}
 Belu Gupta {Professor, Delhi University (Faculty of Law)}
 Eash Sahapathi (Associate, Fox Mandal)
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BOARD OF EDITORS
Karan Mittal (WBNUJS, Kolkata)
{Editor-in-Chief, Indian Journal of Contemporary Legal Affairs}
Siddharth Bagul
(Managing Editor, Indian Journal of Contemporary Legal Affairs)
Siddhant Sharma
{Executive Editor, Indian Journal of Contemporary Legal Affairs}
Samarth Sandilya
(Associate Editor, Indian Journal of Contemporary Legal Affairs)
Ankit Sikarwar

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Rohit Sharma
Prakhar Mittal
(Associate Editor, IJCLA)

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CONTENTS
TITLE OF THE PAPER AUTHOR PAGE

SECTION 5D: THE SHRADDHA GOME 9
CONSTITUTIONALITY OF AND HARPREET
MAHARASHTRA “BEEF
SINGH
BAN”
FRAUD ON THE LILAT GOEL 13
CONSTITUTION:
CONSTITUTIONALISM OR
JUDICIAL
TRANSGRESSION
PROPERTY RIGHTS OF PREETESH SINGH 19
ADOPTED CHILD UNDER
HINDU LAW
INDIAN CONSTITUTION SHUBHI BHANDARI 30
ON EDUCATION AND
EDUCATIONAL
INSTITUTIONS- A STUDY
OF TEXUAL PROVISIONS
AND CASE LAWS
RIGHT TO BE ARUN SINGH 45
FORGOTTEN: BHADAURIA
DISCERNING THE
CONTROVERSIES AND
THE WAY AHEAD
A COMMON SPACE KARAN MITTAL AND 54
FORUM FOR ASIA: AYUSH JHA
FEASIBILITY STUDY
THE GANDHIAN MUKUL KRISHNA 64
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INTELLECT AND GERMAN VYAS AND DEEKHA

ENCROACHMENT JAIN
VOTING PROCEDURE OF AYUSH JHA 78
UNITED NATIONS
SECURITY COUNCIL
ADULTERY AS A GROUND KESHAV PAREKH 86
OF DIVORCE: RECENT
TRENDS
INTERPRETATION OF APOORV 96
“CONTROL” UNDER CHATURVEDI AND
VARIOUS COMMERCIAL
KARAN TIBREWAL
LAWS IN INDIA
CRITICAL ANALYSIS ON ANISHA REDDY 105
FREEDOM OF
ELECTRONIC MEDIA
UNDER ARTICLE 19 OF
CONSTITUTION OF INDIA
A COMPARISON OF PARTY
TRISHNA MENON 114
AUTONOMY IN AD HOC
ARBITRATION AND
INSTITUTIONAL ARBITRATION
WITH RELATION TO THE ICC
INTERNATIONAL COURT OF
ARBITRATION
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SECTION 5D: THE CONSTITUTIONALITY OF MAHARASHTRA “BEEF

BAN”
SHRADDHA GOME1 AND HARPREET SINGH GUPTA2
The Maharashtra (Preservation of Animals) Act, 1976 was passed to give effect to the policy of
the State towards securing the principles specified in Article 48 of the Constitution of India.3
Article 48 of the Constitution mandates that “the State shall endeavour to organise agriculture
and animal husbandry on modern and scientific lines and shall, in particular, take steps for
preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and
other milch and draught cattle.”4 The Act prohibited the slaughter of cow, while the slaughter of
bulls, bullocks was allowed based on fit for slaughter certificate. On March 2, 2015, the
president assented to the twenty year long pending Maharashtra Animal Preservation
(Amendment) Act, 1995.5 The amendment has banned the slaughter of bulls and bullocks as
well. Interestingly, the amendment has also added Section 5D which seeks to ban the possession
of flesh of cow and its progeny slaughtered not only inside but also outside the state of
Maharashtra.6 The amendment has been subjected to a lot of debate and constitutional challenges
recently. However, most of the petitions against the beef ban are in fact against Section 5D. In
essence, by challenging Section 5D, the amendment has now been targeted from the point of
view of “beef eaters” rather than “butchers.” This is because in 2005, the seven judge bench of
Supreme Court in State of Gujrat v. Mirzapur Moti Qurasi,7 has already rejected the petition by
butchers and upheld the total ban on slaughter of bovines in the state of Gujarat.
Section 5D, as introduced by the amendment states that “No person shall have in his possession
flesh of any cow, bull or bullock slaughtered outside the state of Maharashtra.”8 The new policy
1
3rd Year, NLSIU Bangalore.
2 rd
3 Year, NLSIU Bangalore.
3
Section 2, Declaration of state policy, The Maharashtra (Preservation of Animals) Act, 1976, (India).
4
Article 48,The Constitution of India, 1950.
5
The Maharashtra Animal Preservation (Amendment) Act, 1995, (India).
6
Section 5D, The Maharashtra Animal Preservation (Amendment) Act, 1995, (India).
7
State of Gujrat v. Mirzapur Moti Qurasi, AIR 2006 SC 212.
8
Section 5D, The Maharashtra Animal Preservation (Amendment) Act, 1995, (India).
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is far broader than the policy such as in section 5C which prohibits the possession of flesh of
cow, bull or bullock, slaughtered in “contravention of this Act.”The question is whether such a
policy is in consonance with the constitution? Since, the legal justification of the Act lies in
Article 48 of the constitution, attempt has been made to scrutinise the agricultural claims of the
state while determining the validity of possible arguments against Section 5D.
CHALLENGE 1: ARTICLE 14
One of the possible challenges to the constitutionality of Section 5D is violation of right to

equality guaranteed under Article 14. The jurisprudence on Article 14 mandates that to conform
to the principles of Article 14, the classification must pass two tests i.e. the test of intelligible
differentia and the test of reasonable nexus.9 The first test requires that the classification must be
founded on an intelligible differentia which distinguishes those that are grouped together from
others left out of the group. While, the second test requires that the classification must have
reasonable nexus with the state purpose. Now, let us examine Section 5D on the touchstone on
Article 14.
Section 5D seeks to create a distinct class consisting of people of Maharashtra who have been
prohibited from possessing flesh of cows, bulls, bullocks, even if the cow, bull or bullock has
been slaughtered outside the state of Maharashtra. Thus, section 5D places the people of
Maharashtra in a different category from the people in several other states where consumption of
beef has been allowed. As per the affidavit filed by the state, the law was brought into effect for
two reasons, first, to protect cow and its progeny who are the backbone of Maharashtra's agrarian
economy andsecond, to prevent cruelty to animals.10 Now, let us examine whether the
prohibition under Section 5D has reasonable nexus with the two objects state claims to achieve.
First, examining the claim that cow and its progeny are the backbone of Maharashtra’s economy,
there seems to be no “reasonable nexus” between the kind of prohibition under this section and
the object sought to be achieved. Section 5D not just prohibits possession of flesh of cow, bull or
9
M.P.Jain, Indian Constitutional Law, 880 (7th edn., 2014).
10
Shibu Thomas, Maharashtra to HC: Beef ban does not violate Constitutional rights, The Times of
India( April 21, 2015), available at http://timesofindia.indiatimes.com/india/Maharashtra-to-HC-Beef-
ban-does-not-violate-Constitutional-rights/articleshow/46994991.cms, last seen on November 6, 2015.
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bullock slaughtered in the state of Maharashtra but prohibits the possession of beef per se.
However, the ban on possesion of a cow slaughtered in any other state has no nexus with the
agrarian interest of the state of Maharashtra; therefore, such a classification violates Article 14.
Second, cruelty to animals cannot be accepted as avalidobjectbehind the legislation because then
it would mean that any kind of slaughter of animal would amount to “cruelty.”This would go
against the view of the Supreme Court, which itself has recognised the fundamental right to
profession of butchers in various decisions including the recent 2008 decision in Hinsa Virodhak
Sangh v. Mirzapur Moti Kuresh Jamat.11 Further, by using this ground, state of “Maharashtra”
cannot treat its citizens discriminately since in several other states slaughter of bovines does not
amount to cruelty and equally placed citizens are allowed to consume beef. Thus, there is no
reasonable nexus between the prohibition under Section 5D and the object state aims to achieve.
For these reasons, assuming that the classification passes the first test of Article 14 i.e. being an
“intelligible differentia”, it may fail the second test of “reasonable nexus.”
It may be argued that beef being a cheap source of protein is crucial to the poor, particularly
Muslims. Hence, such a blanket ban on possession of beef which has no nexus with the agrarian
interest of the state violates a person’s right to choose a quality life and therefore violates Article
21. However, the sustainability of such an argument in light of 2005 judgement is contentious.
Over riding the 1978 position, the Supreme Court in 2005 held that Beef contributes only 1.3 per
cent of the total meat consumption pattern of the Indian society and therefore a total ban cannot
be held as depriving poor of its protein diet.12 Further, the court held that “real problem facing
India is not availability of protein-rich diet, but unequal distribution.” In light of this, challenge
under Article 21 based on deprivation of “quality life” is weak, until, “right to choice of food” is
accepted as a valid ground under Article 21. However, if we look at the 2008 decision of Hinsa
Virodhak Sangh v. Mirzapur Moti Kuresh Jamat, the Supreme Court has itself recognised that
“what one eats is one’s personal affair and it is a part of his right to privacy which is included in
Article 21 of our Constitution as held by several decisions of this Court.” Thus, it may be argued
that depriving a person of the personal choice to eat beef even if it’s slaughtered outside the state
11
Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat, AIR 2008 SC 1892.
12
State of Gujrat v. Mirzapur Moti Qurasi, AIR 2006 SC 212.
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i.e. without any reasonable nexus with the object behind the law, amounts to violation of Article
21.
Another possible challenge to Section 5D is that it violates Article 29 i.e. right to have one’s own
culture. However, such a challenge seems unsustainablein light of the 2005 judgement. The court
held that it is not a part of religious requirement for a Muslim that a cow must be necessarily
sacrificed for earning religious merit on BakrI'd. Such a holding that since cow slaughter is not
essential, there being other animals, in turn means that eating beef is not part of their culture,
there being other meats.Thus, challenge under Article 29 might fail.
Thus, the petitions against the ban targeting Section 5D are most likely to succeed since the
prohibition under Section 5D has no reasonable nexus with the agrarian interest of the state of
Maharashtra. In the meanwhile, it can only be hoped that the state government complies with the
direction of the court and not take coercive steps for possession of beef.
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FRAUD ON THE CONSTITUTION: CONSTITUTIONALISM OR JUDICIAL

TRANSGRESSION?
-LILAT GOEL13
INTRODUCTION
The Doctrine of Fraud on the Constitution was discussed at length in D.C. Wadhwa vs. State of
Bihar14. The case involved the repeated re-promulgation of three different ordinances on a
massive scale by the Governor.
The court held that an ordinance under Article 213 is passed only during emergencies by the
executive and after its expiry if it is to be converted it is to be carried forward, it has to be given
the shape of law by getting it passed by the legislative assembly. If the government ignores the
legislature and re-promulgates ordinances and continues to regulate the life and liberty of the
citizens through an ordinance promulgated by the executive, it will be transgressing its
constitutional limits and encroaching upon the domain of law making exclusively reserved for
the legislature. Such a stratagem is contrary to the constitutional scheme and must be held to be
invalid as “fraud on the constitution”. The gist of the doctrine was stated as:
“It is settled law that a constitutional a authority cannot do indirectly what it is not permitted to
do directly. If there is a constitutional provision inhibiting the constitutional authority from
doing an Act, such provision cannot be allowed to be defeated by adoption of any subterfuge.
That would be clearly a fraud on the constitutional provision.”
13
3rd Year, WBNUJS Kolkata.
14
AIR 1987 SC 579
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This paper in the light of this proposition seeks to review the Second Judges15 case. It argues that
the Supreme Court, which is a constitutional authority, by interpreting the word “consultation” in
Article 124(2) and 217(2) of the Constitution as “concurrence” and bringing in the Collegium
system transgressed its constitutional mandate of interpreting law and entered into law making. It
is argued that the word “consultation” was wrongly stretched beyond its ordinary meaning as
intended by the Constitution framers and held to mean as “concurrence” The collegium system
was a result of law making by the Court rather than interpretation. As a result the Court has
committed a fraud on the constitution within the definition laid down by itself.
WRONGLY INTERPRETING “CONSULTATION” AS “CONCURRENCE”
Wrong interpretation of Legislative History of Article 50
Article 50 of the Constitution which endorses the principle of separation of executive and
judiciary was seen as the basis of the proposition that in appointing high court judges, the
opinion of the Chief Justice of India is determinative. However the majority opinion missed the
point that Article 50 being only a Directive Principle of State Policy, cannot “enshrine any
principle” and cannot be enforced in court as per article 38.
Further the intended effect of article 5016 when read in the light of its legislative history17 was to
relieve the district collector of the function of trial of criminal cases under Criminal Procedure
Code. Therefore the “public services of the state” in Article 50 refers to district collectors
conducting criminal trials while holding an executive office. It does not suggest that in
appointing high court judges the Chief Justice and not the Governor has the determinative
opinion.
Wrong interpretation of Precedence
15
Supreme Court Advocates on Record Association vs. Union of India,(1993) 4 SCC 441
16
Art. 50- “Separation of Judiciary from the executive- The state shall take steps to separate the judiciary
from the executive in the Public services of the State.”
17
14TH Law Commission Report Vol.2 Chapter 41 at page 851-852.
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In his concurring opinion Kuldip Singh J sighted Samsher Singh’s18 Case where Krishna Iyer J.
held that in appointments, last word must belong to the Chief Justice19 and further Kuldeep J.
held that this was confirmed in Sheth’s case20. However in this case, Krishna Iyer J. himself held
that
“Consultation is different from consentaneity. They may discuss but may disagree; they may
confer but not concur….. although the opinion of the Chief Justice of India may not be binding
on the government, it is entitled to great weight.”
Thus the conclusion drawn by Kuldeep J. from the precedence relied upon was contrary to what
it laid down. This passage from Sheth’s case was never discussed by him.
Consultation Did Not Mean Concurrence Even In GoI Act, 1935
Justice Verma in Para 469 of his judgment laid down the provisions for appointment of judges of
federal court and high courts in order to show that the question of consulting the Chief Justice
arose for the first time under the Constitution and thus the Supreme Court had a wider ambit of
interpreting the word “consultation”.21 However H.M. Seervai points22 that even under GoI act,
the chief justice only initiated proceedings for appointing judges. But His Majesty actually
appointed the judges on advice of Secretary of State who was supposed to give due weight to the
advice of the Chief Justice. Thus not only was there a process of consultation under the GoI Act,
consultation was never equated with concurrence or primacy as was sought to be established by
this judgment.
Problem with giving primacy to opinion of the Chief Justice
With regard to draft Article 193(1), (the present Article 217) Ambedkar commented:
“With regard to concurrence of Chief Justice, I think to allow the Chief Justice practically a veto
with regard to appointment of judges is to transfer the authority to chief justice which we are not
18
AIR 1974.S.C. 2192
19
AIR 1994 SC at page 411-412
20
AIR 1977 SC 2328
21
H.M. Seervai,CONSTITUTIONAL LAW OF INDIA 2956 (4TH ed. 2012)
22 Id
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prepared to vest in the government or the president. I therefore think that this position is also
dangerous”23
For this reason, the amendment by Mr.Pocker to this article was also rejected.24
To avoid such a position the judgment had made it obligatory for the chief justice to form his
opinion after consulting other judges. However this arrangement too is flawed. In case of
disagreement between the chief justice and other judges, if the opinion of the chief justice is too
prevail, then the whole consultation becomes meaningless and ultimately he will get a veto
power over the appointments, a position feared by Ambedkar above and which led to rejection of
Pocker’s amendment. On the other hand, if consultation is to mean concurrence of all those
consulted, a difference of opinion can lead to impasse in the appointment.
This conflict is easily resolved by a plain reading of Article 217(2) and 124(2) which distinguish
between the president’s obligation to consult the chief justice of a high court and the his
discretionary power to consult other judges, which he may find necessary to consult. The opinion
of the Chief justice which has to be mandatorily sought can be given precedence over the
opinions of other judges, sought under discretionary powers.
CREATION OF CONSULTATIVE PROCESS IN FORMATION OF THE OPINION OF THE CHIEF

JUSTICE OF INDIA AND THE CHIEF JUSTICE OF HIGH COURT (COLLEGIUM SYSTEM) IS NOT
SUPPORTED BY THE LANGUAGE OF THE CONSTITUTION
Article 124(2) only makes it obligatory on the President to consult the Chief Justice of India
while he may consult other judges if he deems it necessary to do so. Thus an appointment made
not following the directions stated in the above judgment cannot be held to be invalid as the
President is not under an obligation to consult any other judge other than the CJI. The judgment
purports to rewrite the Article 124(2) in the following manner:
23
Constitutional Assembly Debates Vol. 8 at p. 258
24
Id at page 658. The proposed amendment sought to make concurrence of the chief justice a condition
precedent to appointing a judge
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“Every Judge of the Supreme Court shall be appointed by the President by warrant under his
hand and seal after consultation with two senior most judges of the Supreme Court and the
Senior most judge of the Supreme Court whose opinion is likely to be significant in adjudging the
suitability of the candidate by reason of the fact that he has come from the same High Court or
otherwise.”25
It is to be submitted that no court can enjoy power to add to the requirements of consultation
under a constitutional provision.
Similarly in so far as the judgment requires the Chief Justice of India to consult certain of his
brother judges and Chief Justice of a High Court to do the same, it purports to add on to his
constitutional obligations which a judicial decision is incapable of.
Also wherever the framers of the constitution intended the consultation with a wider body of
judges, provisions of the constitution have expressly stated so. For example in Article 233(1) of
the constitution dealing with appointment of district Judges, requires the governor of the
concerned state to appoint such judges in consultation with the high court. This shows that
appointment of district judges is to be made by the governor in consultation with all judges of
the high court.
Further following the directions laid down in Justice Verma’s judgment will be contrary to the
practice followed under other provisions of conferring powers of appointment on chief justice of
a high court. For example under Article 229 of the Constitution, the power to appoint officers
and servants of a High Court is given to the Chief Justice or to such other judge or officer as he
may direct. No consultation process is followed when the Chief Justice exercises power under
this provision as the language of the article gives this power exclusive to the Chief Justice. It is
submitted that the same language has been used when the Chief Justice of a high court is to
furnish his opinion on suitability of a candidate for appointment to the high court26. Thus
consultation with other judges being made obligatory exclusively in this case is inconsistent
interpretation of the language of the constitution.
25
Supra n.8at page 2954
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CONCLUSION
This project discussed how the Shelath’s case incompletely discussed as a result of which a
conclusion contrary to what it laid down was arrived by the court. Further the ignorance of
rejection of Pocker’s amendment to make the Chief Justice’s concurrence necessary for
appointment (rejection of amendment is a valid tool of interpretation27), wrong construction of
the legislative history of Article 50 and the GoI Act (as not embodying process of consultation
with the Chief Jusitce) lead the Court to hold “consultation” as used in the constitution as
concurrence. Furthermore the creation of collegiums system, unsupported by the Constitutional
language leads to the conclusion that the Judiciary itself committed a fraud on the constitution
(which the judiciary laid down in DC Wadhwa to protect the constitutional scheme of
distribution of power). As a result second judges case is seen as an instance of transgression by
the judiciary into the domain of the legislature.
27
Supra at note 8 at page 2953
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PROPERTY RIGHTS OF ADOPTED CHILD UNDER HINDU LAW

28
PREETESH SINGH
INTRODUCTION
Under the Shastric Hindu Law, adoption was considered sacrament. The need for a son to
perform various rites and ceremonies such as pitri rina, gave rise to the need for adoption.
Sometimes, the need was simply to have an heir who could succeed to the property of the father.
Today the law governing adoption by an Indian Hindu is Hindu Adoptions and Maintenance Act,
1956 (HAMA). It lays the requirements for a valid adoption, the effects of adoption, etc.
Earlier, the adopted child had full rights in the ancestral or coparcenary property. Under the old
Hindu law, the adopted child had equal rights with that of a natural born child. Under the
Mitakshara School of Hindu Law, the adopted son can claim a share in the joint family property
even if partition has already taken place. Thus, adoption was to be traced back to the adoptive
father’s lifetime. On the other hand, now adoption is effective only from the date of adoption.
Moreover, the status of an adopted child is that of a legal heir rather than a natural heir. This has
the effect of limiting his rights in the property as compared to the biological child. For a long
time, the doctrine of relation back was observed in all instances of property disputes between the
adopted child and the rest of the family members. The doctrine of relation back is a concept
which is now almost obsolete. In the 1974 Supreme Court ruling29, it was observed that the
complexity arises from the application of this legal fiction of "relation-back" and the limitations
on the amplitude of that fiction vis a vis partition. As to the question of whether a partition could
be retroactively invalidated by the plaintiff on the application of the legal fiction of "relation-
back", Krishnaiyer V.R., stated, ‘The fact of partition cannot be drowned by the subsequent
28
Advocate, Delhi High Court { NLU Jodhpur,(Gold Medallist)}
29
AIR 1974 SC 878
P a g e | 20
adoption because when it was entered into there was no legal impediment in doing it.’ Therefore
this doctrine finds limited and restricted application under the present law.
The major question that intrigues the law relating to property rights of an adopted child is
whether the differentiation between a natural-born and an adopted child is valid, and this has
been held to be a reasonable classification in various judgments.30 It is common notion that ties
of blood are stronger than those of adoption and this is the basis of much of the law that we have
today.
The present legal position as to the adopted child’s coparcenary rights has been shaped by the
Supreme Court’s judgment 31
, and it has been reiterated in the recent Karnataka High Court
judgment, Siddamma v. Rayanagouda.32 The ratio of the Siddamma case which lays down the
present position is as follows, “Where a son was adopted by the widow of a deceased coparcener
after the death of sole surviving coparcener by which time the properties had already been
vested in his heirs, the adopted son by virtue of his adoption after the death of sole surviving
coparcener could not divest the properties vested in the heirs of the sole surviving coparcener so
as to claim his share during their life time.”
This paper delves into the present legal position of the rights of an adopted child vis a vis the old
Hindu law. This paper also seeks to get a perspicuous insight into rights of an adopted child in
coparcenary property. Thus, an overall analysis of the status accrued to the adopted child has
been sought to be achieved in this paper.
VALID ADOPTION
The concept of Valid Adoption needs to be discussed before starting with the discussion on
property rights of the adopted child under Hindu law as these rights would only arise if the
adoption is valid in the eyes of law. Whether it is under old or modern Hindu law, validity of the
adoption has to be proved and the onus is on the adoptee itself. For this purpose, a person who
30
B. Sivaramayya, Coparcenary Rights to Daughters: Constitutional and Interpretational Issues, (1997)
3 SCC (Jour) 25
31
Namdev Vyankat Ghadge and Anr. v. Chandrakant Ganpat Ghadge and Ors.AIR 2003 SC 1735
32
Siddamma v. Rayanagouda 2008 (3) Kar LJ 549
P a g e | 21
seeks claim in the property on the basis of adoption and tries to displace the rights of the natural
successors, has to prove the factum of adoption and its validity. The burden of proof to show the
legitimacy of the adoption lies on the adoptee itself. The evidence should be such that it should
be free from all suspicion of fraud and misrepresentation. Adoption should be done according to
the requirements as per section 6 of The Hindu Adoptions and Maintenance Act, 1956. There
should be actual physical giving and taking of the child followed by a ceremony33. The requisites
of the said section has to be fulfilled otherwise the adoption cannot be considered as legal and
consequently adoptee will not be able to have access over the property.
OLD HINDU LAW
According to old Hindu law, with the adoption the adopted son loses all his ties with the natural
family and acquires the status of natural born son in the new family with all intent and
purposes34. It can be observed that Shastra did not mean the adopted child to severe all his ties
with the natural family, but in certain situation the natural family can seek for him to accomplish
certain spiritual duties and services35. As per Manu, “Adopted son shall never take the family
(name) and the estate of his natural father, the funeral cake follows the family (name) and the
estate; the funeral offerings of him who gives (his son in adoption) cease (as far as the son is
concerned).”36 All the inheritance and succession rights will be divested from the adopted child,
which he has in the property of his natural father before adoption37.
There are conflicting opinions of different schools; Dayabhaga school thinks that an adoption
does not divest the property which is already vested in the adopted child before adoption38.
33
Madhusudan Das v. Smt.Narayani Bai and others 1983 AIR 114, 1983 SCR (1) 851
34
S.V. Gupte, “Hindu Law of Adoption, Maintenance, Minority and Guardianship”, 87 (1st ed. 1970).
35
Sarkar, 384: John Duncan Martin Derrett, “Essays in classical and modern Hindu law”, 1st ed. 1977,
available at http://books.google.com/books (last seen on 29th August, 2011)
36
Manu, IX 142: supra 6.
37
Srinivasa v. Kuppanayyanagar (1863) 1 Mad. H.C. 180; Muthayya v. Minakshi (1902) ILR 25 Mad
394
38
Behari Lal v. Kailas Chunder (1896) 1 C.W.N 121; Rakhalraj Mondal v. Debendra Nath, AIR 1948
Cal.356
P a g e | 22
Whereas in Mitakshara school, Calcutta, Madras and Punjab High court have concurring
opinions as that of Dayabhaga school39 but according to Bombay High Court the right to
property will be divested from the adoptee on adoption40, if the estate belongs to the natural
father41. In case if the adopted child who has already obtained the share in the property by
inheritance or succession, it cannot be taken away on adoption as the property does not remain
the estate of natural father. But if the adoptee has only the right on property as of being an heir,
this right has to be divested as the property still belongs to the natural father42.
In the old Hindu law, it was very much clear that on adoption the adoptee acquires all rights and
liabilities in the adoptive family as of a natural born son. In the joint Hindu family an adoptive
son becomes the part of the coparcenary. It was evident that existence of a son prior to adoption
definitely hinders the adoption of a second son43. For instance if a widow adopts a son, then the
son will acquire all the coparcenary rights of the deceased husband of his adoptive mother and
will further divest the rights of those whose privileges arose due to survivorship44. Sometimes
the rights of adopted child are not equal to the natural son. When a natural son takes birth after
adoption of a child then the division of property is quite unequal and the adopted son ends up
taking lesser share. In Mitakshara School the adopted child takes half the share of the natural
born share, whereas in Dayabhaga School he takes one-third of the whole property45. It is also to
be noted that only in this case an adopted son gets lesser share otherwise he is entitled for the
equal distribution46.
39
Kunwar Lallajee v. Ram Dayal, AIR. (1936) All.77; Chandra Kunwar v. Norpat Singh (1907) 34 IA 27
40
Dattaraya v. Govind (1916) 40 Bom.429 followed in Bai Kesharba v. Shivsangji (1932) 56 Bom.
619,638,655
41
Mahabaleshwar v. Subramanya (1923) 47 Bom. 542; Manikbai v. Gokuldas (1925) 49 Bom.520
42
Vijaysanghji v. Shivsangji (1935) 62 IA 161, 165-166
43
Parmanand v. Shiv Charan Das (1921) 2 Lah. 69; (1927) 54 IA 248; Sunder Lal v. Baldeo
Singh (1931) 41 Lah. 78 (Jains)
44
Supra 6, at 90
45
Birbhadra v. Kalapataru (1905) 1 C.L.J. 388,404,
46
Ananthari v. Krishanswami, I.L.R. (1938) Mad.410.
P a g e | 23
There is one more aspect attached to adoption in old Hindu law. On adoption of a married
person, his wife also passes to the adoptive family47, but a child born prior to the adoption does
not acquire the rights of inheritance in the adoptive family and his rights remain in his father’s
natural family48. Whereas a child born after adoption then he will be considered in the adoptive
family and will be accrued with all legitimate rights49. A Hindu even after adopting a child has
the inherent power to dispose off his property through gift or will; adoption does not take away
this right50. The will made by the adoptive father is binding on the adopted son; even the son
adopted by the widow of the testator cannot attack the will and has to follow it. If the testator has
sole authority on the property and has disposed off its part then after adoption it cannot be
challenged by adopted son51.
In case of joint Hindu family property, adoption made by the widow of the deceased coparcener
relates the adopted son back to the adoptive father and all the rights and share of the adoptive
father in joint family property at the time of his death will be accrued to the adopted son52.
However this principal does not apply in case where the alienation of the property has been made
prior to the adoption, simply adopted child cannot reopen the partition made before his
adoption53. Nevertheless, it has also been held that adoption done after partition does not infringe
the right or interest of the adopted child in his father’s share. He can claim for the same even
after the partition is done54. The estate which was vested in the collateral heirs will get divested
on adoption as the adopted child was not there at the time of adoption55. A valid adoption made
by the widow will entitle the adopted child up to that extent of the share to which his adoptive
47
Vijaysangji v. Shivsangji (1935) 37 BomL.R .562; Lekhram v.Mt.Kishno, AIR. 1951 Pepsu 99
48
Kalgavda v. Somappa (1909) 33Bom.669; Jesa v. Kumbha, AIR. 1958 Raj.186
49
Adivi v. Fakirappa (1918) 42 Bom. 547; AIR. 1951 Pepsu 99
50
Basant Kumar Bose v. Ram Shankar Ray (1932) 59 Cal.859 (Mitakshara); Venkatanarashna v. Subba
Rao(1923) 46 Mad.300
51
Krishnamurthi v. Krishnamurthi (1927) 54 IA 248,262
52
Veeranna v. Sayamma (1929) 52 Mad. 398
53
Srinivas Krishnarao v. Narayan Devji AIR. 1954 S.C. 379
54
Anant v. Shankar (1944) 70 IA 232
55
Vijender Kumar, “Doctrine of Relation-Back under Hindu Law: A Case Law Study”,Volume 4, Andhra
University LAW JOURNAL, p.78, (2003)
P a g e | 24
father had access before his death even if that property is vested in the surviving coparcener
through inheritance56 including his separate property57. On the other hand if the property has
devolved through will of the deceased adoptive father, then the adopted son cannot divest the
property after his adoption58.
MODERN HINDU LAW
Gradually the law regarding adoption and its effect has developed. Section 12 of the Hindu
Adoptions and Maintenance Act, 1956 talks about this, it would not be wrong to say that the law
more or less has changed. It was held by the Supreme Court that upon the death of a brother, the
other brother does not become the sole owner of the joint family property and the rights also vest
with widow of the deceased brother. If she adopts a son, then he becomes coparcenary with his
uncle in the joint family property and can claim for partition59.
THE DOCTRINE OF RELATION BACK
The major difference between the old law and the modern law is that in old law the adoption of a
child relates him back at the time when his adoptive father dies and accrued him all the rights of
his deceased adoptive father what he had at the time of death, whereas in the Hindu Adoptions
and Maintenance Act, the adoption will come into effect when the actual adoption is made. Since
according to this new act women are allowed to adopt, it has caused various inconveniences and
prejudices. It has been seen under modern Hindu law that after adoption the adoptee does not
loose the property vested him or her prior to adoption. It was decided that in case where the child
given in adoption was the sole owner of the property, then even after adoption the property will
be vested in him. But if there was an existence of coparcenary in his natural family, then he will
loose his coparcenary rights over the estate after adoption gets effected60. Here the dilemma is
56
Supra 6, at 101
57
Ibid
58
Ibid
59
Sitabai v. Ramachandra AIR 1970 SC 343
60
Vasant v. Dattu AIR 1987 SC 389; Agalawe v. Agalawe AIR 1988 SC 849
P a g e | 25
regarding section 12 (b) of the Hindu Adoptions and Maintenance Act, 1956, which talks about
the vested property before adoption and it should also hold true in case of coparcenary rights by
birth61.
Section 12 (c) of the Hindu Adoptions and Maintenance Act, 1956 directly attacks the old
Mitakshara law which says that the adoption made by widow will divest the property vested in
the heirs of his deceased husband and the adopted child will gain the rights of his deceased
adoptive father. But as per the said section an adopted child cannot divest any property vested in
any other person prior to his or her adoption. For instance if an adoption is made by a widow
after four months of the death of his husband and the property got vested in his heirs, then the
adopted child cannot divest such property62. Even if a widow who is absolute owner of a
property under section 14 of the Hindu Succession Act, 1956, the adopted child cannot divest her
from the right which she had in that property63. With the implementation of new law with its full
effect has almost made the doctrine of relation back obsolete. Section 12 is heart and soul of the
act regarding property rights of the adopted child. No doubt it is true that a child adopted by a
widow relates him back to the death of his deceased husband for the requirement of determining
rights of the adopted child. But again he cannot divest the estate which is already vested in the
heirs before adoption. If the partition has not been done and his deceased adoptive father’s share
is there then in this case he can certainly ask for his share equivalent to that of his deceased
adoptive father. In some previous judgments given by Supreme Court, it has been observed that
there was quite unfair treatment with the doctrine of relation back and the adopted child divested
the property vested in the heirs prior to his adoption through the application of this doctrine.
Similarly in the case of self acquired property of his deceased adoptive father then the adopted
child will be treated as natural born child in this case and he will get the property through
intestate succession by the rules given under Hindu Succession Act, 1956. But if the adoptive
father has died after making a will, then the estates will be devolved according to the will and the
adopted child would have no say in this.
61
Supra 6, at 607
62
Namdev Vyankat Ghadge v. Chandrakant Ganpat Ghadge AIR 2003 SC 1735
63
Dinaji v. Dadde AIR 1990 SC 1153
P a g e | 26
NAMDEV VYANKAT GHADGE AND ANR. V. CHANDRAKANT GANPAT GHADGE AND ORS.64
FACTS IN BRIEF
Vyankat and Anand Rao were brothers and coparceners of the joint family property. Anand Rao
passed away in 1930, and Vyankat passed away on 8.2.1978. On 10.6.1978, i.e., four months
after the death of Vyankat, Krishnabai, the wife of Anand Rao adopted Dattatraya. After the
death of Vyankat, Krishnabai got her name mutated in records showing half share in the suit
property. Thereafter the plaintiffs filed a suit for partition for their share in the suit property. It
was contended by the plaintiffs that after Anand Rao’s death it was contended that Vyankat
became the sole surviving member of the joint family and accordingly the widow of Anand Rao
was entitled only to maintenance. This was opposed by the defendants who argued that they had
a larger share in the suit property. The trial court held that the adoption of Dattaraya was valid
and it decreed the suit of the plaintiff. The District Courts dismissed the appeal filed by the
plaintiffs. The second appeal before the High Court was also dismissed. Therefore, the plaintiffs
appealed before the Supreme Court which set aside the impugned judgment of the High Court
and decreed the suit of the plaintiff-appellants.
INTERPRETATION OF §12 (C) OF THE HAMA, 1956
The major question that was there before the Court in this case was whether the adopted son
Dattatraya could divest the property, which devolved on the heirs of Vyankat and vested in them
prior to his adoption so as to claim share in the suit property. The first appellate court had relied
upon the judgment in Dharma Shamrao Agalawev.Pandurang Miragu Agalawe and Ors.65 . It
interpreted proviso (c) of §12 which states that the adopted child shall not divest any person of
any estate which vested in him or her before the adoption. However this judgment needed to be
66
distinguished in light of the different fact situation involved in this. In the Dharma Case the
adoption had taken place during the life of the sole surviving coparcener but in the present case
Dattaraya was adopted after the death of sole surviving coparcener. Hence, the question was
64
Supra 34
65
Dharma Shamrao Agalawev.Pandurang Miragu Agalawe and Ors[1988] 2 SCR 1077
66
Ibid
P a g e | 27
whether adoption of defendant No. 6 (Dattaraya), after the death of sole surviving coparcener,
makes any difference in determining the rights of adopting son in relation to the family
properties. The court relied upon the judgment of Chinappa Reddy J. where he interpreted §12
(c) and stated that where a coparcener dies, it does not have the effect of actual vesting of the
property in the rest of the coparceners although their share might have increased. Likewise, when
a child is taken in adoption, the share of the coparceners only decrease and it does not have the
effect of divesting any person of any property. This was followed in the Dharma case also. In the
present case on the date of death of Vyankat the properties of the joint family in this hands
devolved on his heirs, i.e., his sons and daughters subject to rights of maintenance of defendant
No. 2 Krishnabai67.Opening of succession and devolving of properties operated immediately on
the death of Vyankat and the joint family properties stood vested in the heirs of Vyankat. So by
the time Dattatraya had been adopted, the property was already vested in the heirs of Vyankat.
Therefore Dattaraya cannot divest the heirs of Vyankat of the property.
DOCTRINE OF RELATION BACK: DISCUSSED
It is clear that an adopted child shall be deemed to be the child of his or her adopted father or
mother for all purposes with effect from the date of adoption as is evident from the main part of
§12. The court then discussed the doctrine of relation back as it was in Jiyaji Annajiv. Hanmant
Ramchandra.68 Adoption relates back to the death of the adopting father and an adopted son
must be looked upon as if he was in existence at the date of the death of the adopting father. But
it is not a correct proposition to say that the rights of adopted son are in all respects identical with
that of a natural born son. The principle of relation back is not an absolute principle but it has
certain limitations. Privy Council decision in Bhubaneswari Debi v. Nilkomul Lahiri69. expressly
held that according to Hindu law an adoption after the death of a collateral does not entitle an
adopted son to come in as heir to the collateral. The HAMA also restricts this doctrine and hence
when the child is adopted after the death of the sole surviving coparcener, he cannot claim his
coparcenery rights.
67
Section 6, The Hindu Succession Act, 1956
68
AIR 1950 Bom 360.
69
12 Cal 18 P.C.
P a g e | 28
Thus the court discussed all the relevant case-laws relating to the doctrine of relation back and
came to the conclusion that there are certain limitations to it. Although it appears that, by making
such a provision [§12 (c)], the Act has narrowed down the rights of an adopted child as
compared with the rights of a child born posthumously. As it was observed in the
Bhubaneshwari70 case, “Under the Shastric law, if a child was adopted by a widow, he was
treated as a natural-born child and, consequently, he could divest other members of the family of
rights vested in them prior to his adoption. It was only with the limited object of avoiding any
such consequence on the adoption of a child by a Hindu widow that these provisions in Clause
(c) of the proviso to Section 12, and Section 13 of the Act were incorporated."
Therefore, the Court held that in light of the present legal position, the adopted son cannot divest
the heirs of his collaterals if he is adopted after the death of the sole surviving coparcener.
CONCLUSION
Adoption is an arrangement through which the couples who are deprived of the God’s most
beautiful gift can access to that later on. A couple without child is considered to be incomplete
and cannot be given the status of family. Couples adopt son or daughter as per their wish when
they do not have either but if they have one child then it will be governed by the rules given
under Hindu Adoptions and Maintenance Act, 1956. Effects of adoption are not that simple as it
seems to be but its quite complicated especially regarding devolution of property. It becomes
more complex when the child is adopted by the widow of the deceased adopted father. After the
adoption if the natural son takes birth, then the process will reach the heights of complicatedness.
The old Hindu law basically governed by Shastras and believed in the doctrine of relation back,
thus giving power to the adopted child to divest the property which is vested in the heirs of his
deceased adoptive father on his adoption. This was objected by the modern Hindu law which is
enacted in laws like Hindu Adoptions and Maintenance Act, 1956 etc. and they restrict the
adopted child to divest the already vested estates in the adoptive family.
Section 12 of the Hindu Adoptions and Maintenance Act, 1956 vehemently deals with the effect
of adoption. An adopted child should be considered as the natural child in the adoptive family for
all purposes as soon as the adoption comes into effect. Section 3 of the Hindu Succession Act,
70
ibid
P a g e | 29
1956 also talks about relationship by adoption in ‘the definitions of cognate’ and ‘agnate’. This
clearly shows the intention of the legislature that they intended to equate adopted child with
natural son in almost every aspects. In special cases like adoption made by widow, which can be
validated by section 8 of the Hindu Adoptions and Maintenance Act, 1956 should be given due
consideration. A proviso should be added contending to include the adopted child in the family
of her deceased husband and to make him a coparcener as of natural son and to be accrued with
all the rights and liabilities which his adoptive father had at the time of his death. Legislation is
quite ambiguous on the question of the property rights of the adopted child. None of the section
deals with the property interests of the adopted child in detail thus causing various problems in
deciding the disputes relating to property division. Lacunas in legislation gives an open invitation
to judicial activism and it is the courts which have to decide relying mostly on circumstantial
evidences, but it has become almost impossible for judges to presume and interpret a lot in
absence of proper legislation. Errors during delivering judgments cannot be negated in such
cases.
This is quite pertinent that the doctrine of Relation Back has also become redundant due to the
application of Modern Hindu Laws. Various judgements given by Supreme Court subsequently
overruled by itself and this clearly indicate towards the dilemma of the court over this issue. This
poses heavy demand before the Parliament to come up with a separate legislation or proper
amendments in the Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act,
1956.
P a g e | 30
INDIAN CONSTITUTION ON EDUCATION AND EDUCATIONAL INSTITUTIONS -

A STUDY OF TEXTUAL PROVISIONS AND CASE LAWS.
SHUBHI BHANDARI71
Right to Education Act 2009, and Constitution (Ninety-Third Amendment) Act 2005.-
INTRODUCTION
Education is exhaustively respected not just for its characteristic quality in moving the lives of
people, likewise for its utilitarian worth in the progress of the human capital of a country.
Educational investment in students has been displayed to have high private and social return72.
The private return is joined with amplified efficiency and pay in adulthood. The social premium
to rule wires further efficiency option ascending out of information surges, gets in well being for
one time that spill out of extensions in get ready for the past, and enhanced working of urban
culture and democracy73. Their result to approach immediately goes up in light of the way that
side interests in bearing at any one time have a multiplier impact, yielding extra central focuses
later on. The expression "education" moreover got a wider outline in relationship with its vitality
in Sole Trustee, Lok Shikshana Trust v. C.I.T.74 which states “the systematic instruction,
schooling or training given to the young in preparation for the work of life”. To be perfectly
honest, the enormity of education was given due certification by righteousness of Francis
Coraile v. Union Territory of Delhi75" We think that the right to life include, the right to live with
human dignity and all that goes along with it”, where it was Justice Bhagwati who observed that
“It is generally acknowledged in contemporary discourse that access to good quality elementary
education, must be treated as a fundamental right".
71
2nd Year, NLIU Bhopal.
72
‘An Analysis of the Problem of Illiteracy in India’ (1954). Kalathiveetil, Teresa K., Master's Theses.
Paper 1064. http://ecommons.luc.edu/luc_theses/1064.
73
‘Estimating the Returns to Education: Models, Methods and Results’, Richard Blundell Lorraine
Dearden Barbara Sianesi, Centre for the Economics of Education, London School of Economics October
2001.
74
1976 SCR (1) 461.
75
1981 AIR 746.
P a g e | 31
Lack of education in our nation is by a long shot the most major issue. We all perceive that
absence of education is awful and that it keeps the social development of an individual at stake76.
Be that as it may, absence of education in our nation keeps on existing on a horrifying scale. We
tinker at the issue as opposed to handling it completely. Of lately, the country had aspiring
projects of setting up elementary schools in each town, however these were yet in the driving
rain shade of disregard77. Yet, absence of education can be uprooted, if coordinated endeavours
are made both by private associations and the states. For this, training must be made free and
necessary in any event upto the age of fourteen. That is the plain mandate of our Constitution. As
of late, a bill was embraced in the Parliament of India to make essential training a principal right.
Be that as it may, even where instruction is free in India, it is not necessary; and it is free just at
the lower essential stage here and there78. The outcome is that the majority of the individuals,
who surrender learning after this stage, are the drop-outs, slip back, into lack of awareness.
Obviously, making rudimentary training necessary requests cash. Offspring of labourers and
workers need to consider procuring before they can consider learning.
It is pitiful that our remarkable country neglects to eradicate the menace of illiteracy despite
completing 66 years of independence. It was the 86th constitutional amendment effected by the
Parliament and Article 21A in 2002 which made Right to Education an essential right. This act
binds all stakeholders like individuals, schools, society, states and additionally along with the
Central Government to expect their part with a specific choosing goal to give free and required
education to the children between 6-14 years old79. In the event that we take a gander at the
reasons responsible for portraying demarcations in the midst of developed and developing
countries, education rise as certainly the most key fragment turning the wheel of movement in
the developed countries. The Universal Declaration of Human Rights (1948) under the Article 26
states80, "everyone has the advantage to free rule at any rate at the major and the essential
stages and it should be compulsory". Similarly, various rights of children aimed at their
76
‘India: Economic Development and Social Opportunity’. Drez, Jean and Sen, Amartya (1995), Oxford
University Press, Delhi.
77
Gupta, Shaibal (2000), Status of Literacy in India. Asian Development research Institute (IJTBM)
2012, Vol. No. 1, Issue No. 5, Jan-Mar
78
‘ Illiteracy in India’, Dolly jaitly, Achala Prasad, Dr. D.B. Singh, International Journal of
Transformations in Business Management, Vol. No. 1, Issue No. 5, Jan-Mar’12.
79
http://ecommons.luc.edu/cgi/viewcontent.cgi?article=2063&context=luc_theses.
80
"UN Online," http://www.un.org/Overview/rights.html (accessed October 2, 2008).
P a g e | 32
development have been defined under various articles of the Indian Constitution81 like Article 24
limits work of children in any sort of industry or some different hazardous occupation. Article 39
avoids manhandle and misuse of kids and Article 45 gives free and compulsory education up to
14 years and by Article 47, states have been taken off responsible for development in the level of
sustenance, living conditions and open health. In an epoch-making Public Interest Litigation,
M.C. Mehta v. the State of Tamil Nadu82, the Supreme Court, handed over to the nation a
landmark judgement the essence of which is that “children below 14 years cannot be employed
in any factory or mine or hazardous work and that they must be given education as mandated by
Article 45”. The legislature played an extensive role in universalising elementary education in
India by enacting the Right of Children to Free and Compulsory Education Act, 2009 which
came into force on April 1, 2010.
Education is a feasible device for diminishing poverty, unemployment and disparity, redesigning
health and sustenance and advancing sustained human development driving to growth83.This is
especially relevant in India, where the boundless irregularities in achievement of education are a
remarkable level of illiteracy of preparing existing together with extensive research in science
and progression. The article tries to bring out the meaning Right to Education Act, 2009 and tries
to surface the critical appraisal of the Act with reference to the recent amendments in the Act and
its relation to the reservation policy in schools in India. It also delves into account the various
provisions of the Constitution (Eighty-Sixth Amendment) Act, 2002 and Constitution (Ninety-
Third Amendment) Act, 2005.
CONSTITUTIONAL VALIDITY OF THE ‘THE CONSTITUTION (NINETY THIRD AMENDMENT ) ACT,

2005’ WHICH INSERTED ARTICLE 15 (5).
The basic structure doctrine is an Indian judicial principle that the Constitution of India has
certain basic features that cannot be altered or destroyed through amendments by the parliament.
81
‘Returns to education in India: Some recent evidence’, Aggarwal, T. (2012), Journal of Quantitative
Economics, Vol. 10, No. 2.
82
1988 AIR 1115.
83
‘Post elementary education, poverty and development in India’, Tilak, JBG (2005), 8thUKFIET Oxford
International Conference on Education and Development: Learning and Livelihoods.
P a g e | 33
Key among these "basic features", are the fundamental rights granted to individuals by the
constitution. The Ninety-Third Amendment Act, 2005 introducing Article 15(5) to the COI84 is
not in violation of the basic structure of the COI. The amendment is in essence an enabling
provision aimed at bringing about substantive equality in society. In order to establish this, a
two-fold argument has been advanced. Firstly, it is Article 14 of the COI is not violated, in that;
the classifications made by the amendment are not arbitrary. Secondly, the amendment imposes
reasonable restrictions on the right guaranteed under Article 19(1) (g) of the COI and adjudging
the width of the amendment and identity of the right, the basic structure of the COI has not been
infringed upon.
The article 15 (5) is an enabling provision aiming to bring about substantive equality, which
reads as ‘Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the
State from making any special provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes
in so far as such special provisions relate to their admission to educational institutions including
private educational institutions, whether aided or unaided by the State, other than the minority
educational institutions referred to in clause (1) of article 30.’This article has been enacted with
the intention of giving effect to Article 46 of the COI and thereby bring about substantive
equality85.It is laid down in Article 46 that “the State shall promote with special care the
educational and economic interests of the weaker sections of the people and protect them from
social injustice”. The Supreme Court has conceded a liberal interpretation of Article 46 vis-a-vis
Articles 15 and 16, particularly in respect of special provisions for Scheduled Castes and
Scheduled Tribes86.
Time and again, the constitutional validity of amendments seeking to introduce affirmative have
been consistently upheld. This is seen in the case of Indira Sawhney and Ors. v. Union of India
and Ors.87, where this court relying on previous decisions88 held that Article 16(4) was not an
exception to Article 16(1), but was an enabling provision to give effect to the equality of
84
Constitution of India, hereinafter ‘COI’.
85
Statement of Objects and Reasons of the Constitution (Ninety-Third Amendment) Act,2005.
86
State of Kerala v. N. M. Thomas, (1976) 2 SCC 310; Akhil Bharatiya Sochit Karamchari Sangh (Rly.)
v. Union of India, (1981) 1 SCC 246.
87
N.M. Thomas, supra note 15.
88
Indra Sawhney and Ors. v. Union of India and Ors., 1992 Supp (3) SCC 217.
P a g e | 34
opportunity in matters of public employment. In consonance with this judicial approach, Ashoka
Kumar Thakur v. Union of India89 held that Article 15(5) of the COI is not an exception to
Article 15(5), but may be taken as an enabling provision to carry out the constitutional mandate
of equality of opportunity. In light of this, the finding of this Hon’ble Court in Pramati
90
Educational and Cultural Trust v. Union of India must not be taken lightly. The Court held
that despite the provisions in Article 15 of the COI as originally adopted, some classes of
citizens, Scheduled Castes and Scheduled Tribes have remained socially and educationally
backward and have also not been able to access educational institutions for the purpose of
advancement. In order to amplify the provisions of Article 15 of the COI as originally adopted
and to provide equal opportunity in educational institutions, Clause (5) has been inserted in
Article 1591. Therefore, it is right to say that the amendment serves the purpose of bringing about
substantive equality in the sphere of education.
VALIDITY OF EXCLUSION OF AIDED AND UNAIDED MINORITY INSTITUTIONS FROM THE

PURVIEW OF ARTICLE 15(5) OF THE INDIAN CONSTITUTION
The right to equality has been recognized as a feature of the basic structure of the
constitution92.However, the framework of Article 14 is such that it permits reasonable
classification of persons. In order to test whether such classification is reasonable, it must be
based on intelligible differentia with a rational nexus to the object it seeks to achieve93.In any
case, exclusion of minority institutions from the ambit of Article 15(5) is a reasonable
classification and therefore not ultra vires the basic structure since minorities are a class unto
themselves. Article 30 (1) of the COI confers upon minorities the right to establish and
administer educational institutions of their choice. In the case of T.M.A. Pai Foundation and
Ors. v. State of Karnataka and Ors.94. an eleven judge bench held that the only imposition on
minority educational institution is that it must permit admission of citizens belonging to the non-
minority class to a reasonable extent based on merit, even though the institution admits students
of the minority group of its own choice for whom the institution was meant. In the St. Stephen's
89
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1.
90
Pramati Educational and Cultural Trust v. Union of India, AIR 2014 SC 2114. 11 Id; C
91
Id.
92
Raghunathrao Ganpatrao v. Union of India, 1994 Supp (1) SCC 191.
93
In re: The Special Courts Bill, 1978, (1979) 1 SCC 380.
94
T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., (2002) 8 SCC 481.
P a g e | 35
case95 it was held that the fact that Article 29(2) applies to minorities as well as non-minorities,
does not mean that it was intended to nullify the special right guaranteed to minorities in Article
30(1). In addition to this, the minority character of institutions has not been compromised for
reasons of purported national interest. If every order which, while maintaining the formal
character of a minority institution, destroys their power of administration is held justifiable
because it is in public or national interest, though not in its interest as an educational institution,
the right guaranteed by Article 30(1), will be an illusion96.If national interest in matters of
education always coincides with minority interests, there is no need for Article 30 because the
article in itself is a national interest97. In regards to the validity of Article 15(5) insofar as it
concerns the exclusion of minority institutions, the character of the minority educational
institutions referred to in Clause (1) of Article 30 of the COI, whether aided or unaided, will be
affected by admissions of socially and educationally backward classes of citizens or the
Scheduled Castes and the Scheduled Tribes.
It is for this reason that minority institutions, aided or unaided, are kept outside the enabling
power of the State Article 15(5). It may be said that the exclusion of minority schools is based
on an intelligible differentia i.e. the fact that they are a minority school with a rational nexus to
the object it seeks to achieve i.e. protection of the minorities from laws made by the majority.
SCOPE OF INCLUSION OF PRIVATE UNAIDED NON- MINORITY INSTITUTIONS FROM THE

PURVIEW OF ARTICLE 19(1)(G) OF THE INDIAN CONSTITUTION.
Article 19(1) (g) confers a right upon all citizens to carry on any occupation, trade or business. It
was held in the cases of T.M.A. Pai 98 and P.A. Inamdar99 that the fundamental right to carry on
any occupation under Article 19(1)(g) of the COI includes the right to run and administer a
private unaided educational institution. The decisions also held that the government could not
impose reservations on such institutions. It is contended that an argument stating that the
impugned amendment reverses the decisions of this Court in the above mentioned cases are of
95
St Stephen’s College v. Delhi University, (1992) 1 SCC 558.
96
16 Sidhrajbhai Sabbai v. State of Gujarat, AIR 1963 SC 540; Dipendranath v. State of Bihar, AIR 1963
Pat 54.
97
Malankara Syrian Catholic College v. T. Jose, (2007) 1 SCC 386.
98
TMA Pai,supra note 23.
99
P.A. Inamdar and Ors. v. State of Maharashtra and Ors. AIR 2005 SC 3226.
P a g e | 36
no merit. An argument to the same effect has been previously struck down on the grounds that
the power of amendment has been guaranteed to the Legislature and so long as it complies with
the mandated procedural constraints and does not violate the basic structure100, such amendment
would be valid. Therefore, the validity of the amendment must be considered based on the
consequence it has on the basic structure as opposed to what the earlier judicial interpretation
was. The rationale based on which the restrictions on private unaided educational institutions
was considered invalid in TMA Pai and Inamdar was because it would amount to an
unacceptable restriction, beyond the permissible limit in Article 19(6) of the Constitution 101.
However, the Parliament has stepped in and in exercise of its amending power under Article 368
of the COI inserted clause (5) in Article 15 and thus vests a power on the State, independent of
and different from, the regulatory power under Clause (6) of Article 19. It has to be examined
whether this new power vested in the State which enables the State to force the charitable
element on a private educational institution destroys the right under Article 19(1)(g) of the COI.
The doctrine of basic structure provides that there are certain fundamental tenets enshrined in
our COI that may not be abridged under any circumstance because of the fact the very essence of
our constitution will change with the change in such basic features102.With the continuous
interpretation of this doctrine, twin tests, i.e. width test and identity test have been developed to
determine if the basic structure of the constitution is being infringed or not103. Applying the
width test, it is seen that this affirmative action provision is qualified by the existence of social,
economic backwardness or that the persons must belong to a Scheduled Caste or a Scheduled
Tribe. In consonance with judicial precedents104, creamy layer has also been excluded from the
benefit of the Article105. Further, the right under Article 19(1)(g) of the COI does not stand on
the same footing as freedom of speech or expression106. Therefore, a minor restriction on the
same would not imply that the width of the power that the legislature has conferred upon itself is
too great. In analyzing if the identity of the right under Article 19(1)(g) of the COI has been
100
M. Nagaraj and Ors. v. Union of India (UOI) and Ors. (2007) 1 SCC (LS) 1013.
101
Pramati, supra note 19.
102
His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (1973) 4 SCC
225.
103
M. Nagaraj, supra note 21
104
Indira Sawhney, supra note 17.
105
Ashok Kumar Thakur, supra note 18.
106
Bennet Coleman and Co. v. Union of India, (1972) 2 SCC 788
P a g e | 37
destroyed, one must understand the nature of the right. The right conferred by the Article has
always been subject to reasonable restrictions107. Further, the element of voluntariness embedded
in the provision has been abridged only very slightly. Administrative autonomy is still vested
with the educational institute. The schools may still make their own rules and regulations, add to
the curriculum and appoint their own teaching staff subject to certain minimum qualifications so
as to not dilute the standard of education. Any law that is enabled by Article 15(5) will be
mandatorily subject to the test of basic structure. Therefore, where the Courts feel that the
obligation imposed on the private entity is in violation of the basic structure, the law is liable to
be struck down.
Moreover, the addition of Clause (5) to Article 15 is not about the truncation of one activity that
was previously deemed by this Court to be one of the essential features guaranteed in the
freedom code. Hence, there arises a need not only have to assess the negative impact, but also
the positive impact of an amendment. The preamble of the amendment elucidates the truth of the
situation when it states that greater access to higher education including professional education
to a larger number of students belonging to the socially and educationally backward classes of
citizens or for the Scheduled Castes and Scheduled Tribes has been a matter of major
concern108.At present, the number of seats available in aided or State maintained institutions,
particularly in respect of professional education, is limited in comparison to those in private
unaided institutions109.Therefore, Article 15(5) acts as a true enabling provision balancing
individual rights vis-à-vis other vital constitutional vision.
CONSTITUTIONAL VALIDITY OF THE RIGHT TO EDUCATION ACT, 2005.
The RTE Act was introduced to provide free and compulsory education to all children aged six
to fourteen years110.It was enacted keeping in mind the crucial role of universal elementary
education for strengthening the social fabric of democracy through provision of equal
opportunities to all111.The constitutional validity of an act can be challenged on several grounds
107
Constitution of India, Art. 19(1)(g), (1950).
108
Statement of Objects and Reasons, supra note 14.
109 Id.
110
Hereinafter, ‘RTE Act’.
111
Section 2(c) read with Section 12(1)(b), RTE Act
P a g e | 38
including the contravention of any right specified in Part III of the Constitution112 or if there is
legislation on any subject which is not assigned to the relevant legislature by the distribution of
powers read with the connected Articles113.
Article 21-A of the COI reads as “The State shall provide free and compulsory education to all
children of the age of six to fourteen years in such manner as the State may, by law, determine”.
Thus, Article 21A enables the Parliament to enact a legislation to provide free and compulsory
education. Further, under the Article, the manner in which the said obligation will be discharged
by the State has been left to the State to determine114. Thus, the Parliament is free to decide the
mode and manner of the provision of education115.Further, it is submitted that the Directive
Principles of State Policies in Articles 45 and 46 provide for the provision of free and
compulsory education to all children up to the age of 14 years. To protect and give effect to this
right to education, the Parliament has enacted the RTE Act. Therefore, the RTE Act has been
enacted by the competent authority.
SCOPE OF INCLUSION OF PRIVATE UNAIDED SCHOOLS UNDER SEC.1(4) OF THE RTE ACT AND
VALIDITY UNDER THE PURVIEW OF ARTICLE 21A OF THE CONSTITUTION OF INDIA.
Section 1(4) read with 12(1)(b) and (c) of the RTE Act makes it mandatory for private unaided
schools to reserve 25% seats for children belonging to the weaker sections and provide them free
education. Article 21-A of the COI imposes an obligation on the State to provide free and
compulsory education to children between the 6-14 years of age. Education is a public policy
concern116 and private educational institutions perform a function akin to those of the State
within the meaning of Article 12117. Therefore, the obligation of providing free and compulsory
education cannot be passed on by the State to private educational institutions has no substance
112
Constitution of India, Art. 21A (1950).
113
State of W.B. v. E.I.T.A. India Ltd., (2003) 5 SCC 239, 244.
114
Report of the Central Advisory Board of Education (CABE) Committee on Free and Compulsory
Education Bill And Other Issues Related to Elementary Education, June 2005; Society for Un-aided
Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1.
115
Public Services Tribunal Bar Association v. State of UP, (2003) 4 SCC 104, 120; State of A.P. v.
McDowell and Co., (1996) 3 SCC 709. 35 State of W.B. v. E.I.T.A. India Ltd., (2003) 5 SCC 239, 244.
116
Unni Krishnan, J.P. and ors. Etc. v. State Of Andhra Pradesh, 1993 AIR 2178; Jiby P. Chacko v.
Principal, Mediciti School of Nursing, Ghanpur, Ranga Reddy District and Anr., 2002(2)ALD827.
117
Sainik School Employees v. Sainik Schools Society (1989) Supp. 1 SCC 205; Zee Telefilms Ltd v.
Union of India (2005) 4 SCC 649.
P a g e | 39
and private unaided schools have rightly been included under Section 1(4) of the RTE Act 118.
The Hon’ble Court in the T.M.A. Pai119 case has held that while private unaided educational
institutions have the right to admit students of their choice, a small percentage of students
belonging to the weaker sections of society should be admitted on scholarships/freeships if the
Government doesn’t do so. Therefore, the inclusion of private unaided institutions under the
RTE Act is within the ambit of Article 21A of the COI, as has been interpreted by the judiciary.
Hence, the Section is constitutionally valid in light of Article 21A.
VALIDITY OF EXCLUSION OF UNAIDED MINORITY INSTITUTIONS UNDER SECTION 1(4) OF THE

RTE ACT.
The 2012 Amendment120to the RTE Act, excluded unaided minority schools from the purview of
the Act. Such exclusion is valid in the light of the mandatory requirement of 25% reservation121
and the prohibition of establishment without recognition122which would violate Articles 26, 29
and 30 of the COI. Therefore such exemption does not violate Article 14 of the COI. It is
submitted that Part III of the Constitution guarantees the right to every religious denomination or
a section thereof, to establish and maintain institutions for religious purposes and to manage its
affairs in matters of religion123.Further, Articles 29 and 30 of the COI confer minorities certain
educational and cultural rights as fundamental rights. The right of minorities to set up their own
educational institutions, established by Article 30(1) has been constructed using the phrase of
their choice. It is therefore a fundamental right which is absolute and cannot be abridged. Thus
minority educational institutions are a separate category of institutions which need protection 124.
25% reservation in an unaided minority school would result in changing the character of the
schools. This would imply that the right to establish and administer such schools which flows
from the right to conserve their language, script or culture would stand violated125.It is also
submitted that such exemption cannot be extended to aided minority schools in the light of
118
Society for Un-aided Private Schools of Rajasthan, supra note 43.
119
T.M.A.Pai, supra note 23.
120
Section 2, RTE (Amendment) Act, 2012.
121
Section 12(1)(c), RTE Act.
122
Section 18, RTE Act.
123
Constitution of India, Art. 26 (1950).
124
Society for Un-aided Private Schools of Rajasthan , supra note 43.
125 Id.
P a g e | 40
Article 29(2) of the COI. The said Article confers right of admission upon every citizen into a
state-aided educational institution and is therefore an individual right and not a class right. The
RTE Act aims at removing barriers which restrict access to education126.Therefore any school
run by the State cannot be beyond the purview of the RTE Act and such exemption can only
extend to unaided minority institutions. Therefore the RTE Act was rightfully made inapplicable
to unaided minority institutions by applying the doctrine of severability127 and such exemption
does not violate the right of equal treatment under Article 14 of the COI.
SECTIONS 12(1) (B) AND 12 (1) (C) OF THE RTE ACT ARE AND PART III OF THE CONSTITUTION
OF INDIA.
Sections 12(1) (b) and (1) (c) do not violate Article 19(1)(g) of the COI. Section 12(1)(c) of the
RTE Act provides for the reservation of seats amounting to 25% of the total class strength for
the admission of children belonging to the weaker and disadvantaged sections in the
neighbourhood of the school. Section 12(1)(b) provides for the free and compulsory elementary
education to them. These sections do not violate a non-minority's right to establish and
administer an unaided educational institution128. The Article 21 of the COI grants the right to life
and liberty. A child who is denied right to access education is not only deprived of his right to
live with dignity, but also of the right to freedom of speech and expression129.Such deprivation
can be prevented by the operation of Section 12(1)(b) and (c) and they are therefore backed by
Article 21A of the COI. Further, the right guaranteed by Article 19(1)(g) is not an absolute
right130. The setting up of educational institutions by private persons supplements the primary
obligation of the State131.Thus, the State can regulate the activities of the private institutions by
imposing reasonable restrictions132.To oblige unaided non-minority school to admit 25%
children to protect their fundamental rights cannot be termed as unreasonable. It is in the interest
126
CABE Report, supra note 43.
127
R.M.D. Chamarbaugwalla v. Union of India, [1957 SCR 930].
128
Constitution of India, Art. 19 (1) (g) (1950).
129
Constitution of India, Art. 19 (1) (a) (1950).
130
Communist Party of India (M) v. Bharat Kumar, (1998) 1 SCC 201; Bharat Kumar K. Palicha v. State
of Kerela, AIR 1997 Ker 29.
131
132
Constitution of India, Art. 19 (6) (1950); Cooverjee B. Barucha v. Excise Commissioner, AIR 1954 SC
2.
P a g e | 41
of public policy133 and therefore does not transgress any constitutional limitation. Further, by
virtue of Section 12(2) of the RTE Act, the private unaided school would be entitled to be
reimbursed for the expenditure incurred by it in providing free and compulsory education to
children to ensure the right guaranteed by Article 19(1)(g) of the COI to administer educational
institutions is not violated. Thus the Section 12(1)(b) and (c) are constitutionally valid and the
sections are not in violation of Article 14 of the COI. Article 14 of the COI guarantees the right
to equality before the law and equal protection of the laws. This principle does not take away the
power from the State the power of classifying persons for a legitimate purpose134 and the
legislature is competent to exercise its discretion and make such classifications135.Therefore, in
order to provide free and compulsory education, earmarking of seats for children belonging to a
specified category who face financial barrier in the matter of accessing education satisfies the
test of classification136 and is line with Article 14.
SECTION 12(2) OF THE RTE ACT AND ARTICLE 19(1)(G) OF THE CONSTITUTION OF INDIA.
Section 12(2) provides for the reimbursement of the expenditure incurred by it to the extent of
per child expenditure incurred by the State, or the actual amount charged from the child as may
be prescribed. Therefore the Section strikes a perfect balance between the rights available under
Article 19(1)(g) and Article 21A of the COI. An unaided school is a school to who’s
establishment, the government did not contribute any land, building, equipment or other
facilities, either free of cost or at a concessional rate137. Such reimbursement as provided for by
Section 12(2), even if of a lesser amount, upholds the fundamental right of private persons to
establish an unaided educational institution. It also secures the interests of the children in the
locality, in particular, those who may not be able to pursue education due to inability to pay fees
or charges of the private unaided schools. Therefore the Section does not violate Article 19(1)(g)
and is constitutionally valid.
133
Bannari Amman Sugars Ltd. v. Commercial Tax Officer, (2005) 1 SCC 625.
134
State of Bombay v. Balsara F.N., 1951 SCR 682; Gopi Chand v. Delhi Administration, AIR 1959 SC
609.
135
Anukul Chandra Pradhan v. Union of India (1997) 6 SCC 1.
136
Hathising Mfg. Co. v Union of India, AIR 1960 SC 923.
137
Report Of CABE Sub-Committee For Assessment And Implementation Of CCE In The Context Of
The No Detention Provision in The Right of Children to Free And Compulsory Education Act, 2009;
P a g e | 42
SECTIONS 13, 15 AND 16 OF THE RTE ACT, 2009 AND ARTICLE 19(1)(G) OF THE
CONSTITUTION OF INDIA.
Section 13(1) prohibits charging of capitation fee and a screening procedure for admission. The
provision thus ensures that schools adopt an admission procedure which is non-discriminatory,
rational and transparent especially in relation to children belonging to disadvantaged groups. The
provision aims to make education universally accessible and is in line with the object of the RTE
Act and Article 21A of the COI. Thus Section 13 is a reasonable restriction and is not in
violation of Article 19(1)(g) of the COI. Section 15 of the RTE Act prohibits the denial of
admission to any child irrespective of late application after the expiration of the admission
period. This provision ensures access to education to the weaker sections of society. To deny
admission to a child solely on the basis of lack of knowledge about the school admission
procedure or late application, would be unjust and in violation of Article 21-A of the COI.
Therefore Section 15 is necessary to prevent such gross injustice and does not violate Article
19(1)(g) of the COI. Section 16 of the Act prohibits expulsion of children, only at the level of
elementary education. The respondents submit that holding back in a class or expulsion may lead
to large number of drop outs from the school138.63 This will defeat the very purpose and object
of the RTE Act, i.e., to strengthen the social fabric of democracy and to create a just and humane
society. The section seeks to prevent the unjust mortification of a child’s personality in his or her
early stages of education139,64 and is in line with the object of Article 21A. Therefore it does not
violate Article 19(1)(g) of the COI.
VALIDITY OF SECTIONS 21 & 22 OF THE RTE ACT, 2009 READ WITH RULE 3 OF THE RIGHT OF
CHILDREN TO FEE AND COMPULSORY EDUCATION RULES, 2010, AND ARTICLE 30(1) OF THE
CONSTITUTION OF INDIA?
The real import of Article 29(2) and Article 30(1) of the COI is that they contemplate a minority
institution with a sprinkle of outsiders admitted into it140.65 By admitting a non-member into it
138
Id; Society for Society for Un-aided Private Schools of Rajasthan, supra note 43.
139 Id.
140
Department-Related Standing Committee on Human Resource Development, supra note 62; Society
for Un-aided Private Schools of Rajasthan, supra note 43.
P a g e | 43
the minority institution does not shed its character and cease to be a minority institution 141.
Further, the 2012 Amendment to the Act, amended Section 21(1) and clearly lays down that the
committee will only perform advisory functions vis-a-vis minority schools142. Therefore there is
no infringement of Article 30(1) and any such contention raised by the petitioners does not lie.
To say that ‘a thing is constitutional is not to say that it is desirable.’143The Indian judiciary has
interpreted fundamental rights in the light of the Directive Principles of State Policy. There is
always a presumption of constitutionality in favour of legislation and declaring the law
unconstitutional is one of the last resorts taken by the courts144. The provisions challenged under
the Act are reasonable and strive to achieve the objective the Act. Hence, The RTE Act is
constitutionally valid.
CONCLUSION
The 93rd Amendment to the Constitution straightforwardly or by implication influences a great

many natives of this nation. On the off chance that Article 15(5) is allowed to stay in power,
then, rather than accomplishing the objective of a casteless and boorish society, India would be
changed over into a standing ridden society. The nation would everlastingly stay partitioned on
rank lines. The Government must look to deny this contention. To achieve a libertarian culture,
we need to earnestly evacuate financial imbalances. Mahatma Gandhi said: "The position
framework as we probably am aware is a time misplacement. It must go if both Hinduism and
India are to live and develop from everyday." The Prime Minister, Pt. Jawahar Lal Nehru, said
that "nobody ought to be left in any uncertainty that the future Indian Society is to be casteless
and ridiculous". Dr. B. R. Ambedkar called position "against national".
After just about four many years of autonomy, while taking an interest in the Parliamentary
Debate on the Mandal issue, then Prime Minister Shri Rajiv Gandhi on sixth September, 1990
again emphasized the same slants: "I think, no one in this House will say that the evacuation of
casteism is not some portion of the national objective, along these lines, it would be in the bigger
enthusiasm of the country to dispose of the stations as right on time as could be allowed". It is
141
142
Section 5, RTE (Amendment) Act, 2012.
143
Dennis v. United States, (1950) 341 US 494.
144
People’s Union for Civil Liberties v. Union of India, (2004) 2 SCC 476.
P a g e | 44
our bounden obligation and commitment to counter the legitimacy of the 93rd Amendment out
of sight of the Preamble with due consideration to the Right to Education Act, 2005 and a
definitive objective that goes through the pages of the Constitution.
RIGHT TO BE FORGOTTEN: DISCERNING THE CONTROVERSIES AND THE WAY

AHEAD
ARUN SINGH BHADAURIA145
Abstract
145
3RD Year, GNLU.
P a g e | 45
The recent ruling of the European Court of Justice (hereinafter ECJ) in ‘Google Spain SL,
Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González’ reaffirmed the
unparallel commitment of Europe for the privacy protection. The right leverages an EU citizen to
have his inaccurate, irrelevant, and excessive past erased from the internet. The right above its
other significant uses could be highly functional in securing protection to the victims of domestic
violence or revenge porn. However, the enforcement agencies, particularly Google, are facing a
tough time in the implication of this ruling. This certainly raises a question as to the viability of
the right.
This paper attempts to pursue two questions. Firstly, does ECJ enforce the ruling on ‘right to be
forgotten’ outside Europe? If not, why Google has fell prey to the judgment, intriguing itself in
an unprecedented dilemma. Secondly, could internet actually forget some parcels out of its
memory bag in such a manner as to exclude every possibility of its use in future? Following the
address to these questions, the Author suggests how this legal nodus on the privacy law could be
relaxed in a more suitable way through the intervention of respective state authorities.
INTRODUCTION
Europe is known to have one of the wisest legislations in the area of data protection. The Data
Protection Act 1998 safeguard personal information such as medical records and copyright law
has been used to permanently eliminate copied information and images on websites.146 Under
article 8 of the Human Rights Act 1998, everyone has the right to "respect for private and family
life" from the state. The EU states, under European Data Protection Directive (Directive
95/46EC), already guarantee every data subject the right to obtain from the controller, the
rectification, erasure or blocking of data the processing of which does not comply with the
provisions of this Directive, in particular because of the incomplete or inaccurate nature of the
data. Article 17 of the EU Proposal (2012) for a General Data Protection Regulation extends the
right of erasure provided in the Article 12(b) of Directive 95/46/EC, including the obligation of
the controller which has made the personal data public to inform third parties on the data
subject's request to erase any links to, or copy or replication of that personal data.
146
Data Protection Act, 1988
P a g e | 46
The recent Judgment of European Court of Justice in the Google Spain SL, Google Inc. v
Agencia Española de Protección de Datos, Mario Costeja González’,147 does not represent an
unseen feat in the area of data protection, altough, it certainly has had insulated the existing EU
legislations on data protection and privacy laws like never before. The decision affirms the ‘right
to be forgotten’, a privilege in line of General Data Protection Regulation
GOOGLE’S CONTROVERSY: DELINEATING THE BACKDROP

Mario Costeja had never anticipated that his pursuit for anonymity would make him the prey of
‘Streisand effect’. The seeds of the famous litigation were sown in 1998, when the Spanish
newspaper ‘La Vanguardia’, on the order of the Spanish Ministry of Labour and Social Affairs,
published two proclamations in its printed edition regarding the forced sale of properties arising
from social security debt. A version of the edition was later made available on the web
afterwards.148 One of the properties described in the concerned articles belonged to Mario
Costeja
González. In November 2009, Costeja contacted the newspaper to complain that when his name
was entered in the Google search engine, it directed to those articles which alluded his historical
debts. After a failed attempt with the Newspaper and Google, he requested the national regulator
(APED) that either the newspaper or Google be required to remove or conceal the personal data
relating to him, as the data had became ‘irrelevant’.149
ISSUES BEFORE THE COURT

After AEPD upheld the complaint in so far as it related to Google, the company brought claims
in the Spanish High Court. The Spanish High Court made a preliminary reference to the Court of
Justice of the European Union (CJEU), asking it to consider inter alia, whether the rights set out
in the Data Protection Directive 95/46/EC enable a data subject to ask search engines to stop
indexing information relating to him personally, published on the web pages of third parties,
even where that data has been made available lawfully.150 The opinion of the member states-
147
ECLI:EU:C:2014:317, C-131/12.
148
Subhasta D’Immobles, La Vanguardia (19/1/1998), available at
http://www.lavanguardia.com/20140714/54411076983/primera-subhasta-d-immobles-de-l-estat-a-l-
octubre.html, last seen on 18/10/15.
149
Right to be forgotten, essex court (14/11/ 2015), available at
http://1essexcourt.wordpress.com/2014/05/15/the-right-to-be-forgotten., last seen on 15/11/2015.
150
ibid.
P a g e | 47
Spain, Greece, Poland, Austria, and Italy was sought. The Attorney General Nillo Jaskinen also
aided the Court on these issues-
i. firstly, whether Google.inc and its subsidiary comes into the territorial scope of directive;
ii. secondly, if so, whether the activity of the search engine in collecting, caching, indexing
and retrieving data constituted “processing” under the Directive, for which the search
engine would be the ‘data controller’; and
iii. lastly, if so, whether the individual could invoke rights under the Directive to seek
erasure or object to processing to have the data removed.151
JURISDICTION OF THE COURT

First question was impressed by the Hon’ble Court against the search giant, seizing them within
its jurisdiction. Here Google contended that though the issue concerns Google’s Spanish
subsidiary, the question raised by Costeja via APED could only be considered by Google.inc, it
being the parent company, and so far it has its seat in Washington D.C., it is way beyond the
jurisdiction of ECJ. Here the decision of the Hon’ble Court seems to be viable as Google,
perhaps, was pushing a loose explanation with open hands.
GOOGLE IS THE ‘DATA CONTROLLER’

Answering the second question, the Hon’ble Court inclined to the view that the activities of the
search engine in collecting, caching, indexing and retrieving data constitutes “processing”, for
which the search engine would be the ‘data controller’. The Hon’ble Court placed its reliance on
the article 2(b) of the Directive 95/46 which explicitly includes the operations such as collection,
recording, storage, adaptation or alteration, retrieval, consultation, use, disclosure by
transmission, dissemination etc. of the personal data within the surface of ‘processing’. 152
The
Hon’ble Court also decided observed that it is the search engine operator which determines the
purposes and means of that activity and thus of the processing of personal data that it itself
carries out within the framework of that activity and which must, consequently, be regarded as
the ‘controller’ in respect of that processing pursuant to Article 2(d).153 Moreover, it is
undisputed that that activity of search engines plays a decisive role in the overall dissemination
151
Supra 4
152
Article 2(b), Directive 95/46/EC of the European Parliament and of the Council, 1995.
153
Art. 2(d), Directive 95/46/EC of the European Parliament and of the Council, 1995; Supra 4
P a g e | 48
of those data in that it renders the latter accessible to any internet user making a search on the
basis of the data subject’s name, including to internet users who otherwise would not have found
the web page on which those data are published.154
The Attorney General Nillo Jaaskinen, however, dissented with this view on the reasoning that
the search giant could not be regarded as the controller for the controller is aware of the
existence of a certain defined category of information amounting to personal data and the
controller processes this data with some intention which relates to their processing as personal
data. Hence Google's search activities involve the processing of personal data, but Google does
not thereby become a data controller for the content of the material when the processing is
carried out in a haphazard, indiscriminate and random manner.
DO CITIZENS HAVE ‘RIGHT TO BE FORGOTTEN’?

Having dubbed Google as the data controller, the most vital question which stood before the
Hon’ble Court was whether a data subject has a right to object and erasure of the personal data
processed by the data controller (Google). The answer of the Hon’ble Court on this issue
affirmed the ‘right to be forgotten’ of a data subject in Europe. The right to be forgotten "reflects
the claim of an individual to have certain data deleted so that third persons can no longer trace
them."155 The Hon’ble Court while answering the controversial ‘right to be forgotten’ had
emphasized significantly on the Article 7 and Article 8 of the Charter of Fundamental Rights of
the European Union as these provisions respect private life and protects personal data of a
citizen.156 These fundamental privileges have been offered to the citizens through the directive
95/46. Article 12(b) of Directive 95/46 provides that Member States are to guarantee every data
subject the right to obtain, from the controller, the rectification, erasure or blocking of data the
processing of which does not comply with the provisions of Directive 95/46, in particular
because of the incomplete or inaccurate nature of the data.157
154
Ibid, C-131/12.
155
M. Van Hoecke, The harmonization of private law in Europe, 237 (3rd ed., 2000),
156
Supra 4
157
Article 12, Directive 95/46/EC of the European Parliament and of the Council, 1995.
P a g e | 49
The decision, within the days of its advent, has had goaded the whirlwind of controversies, with
the media giants agitating the censoring of their ‘freedom of expression and speech’. “It seems
equivalent of going into libraries and burning books you don't like", Martin Clarke, Mail Online's
publisher, agonized over the ruling.158 Although, a small syndicate, including the exponent of the
right to privacy, has applauded the judgment for strengthening the right to privacy, whilst
denying its possible effect on ‘right of speech and expression’.159 Both the views, perhaps, seem
to be viable, but in the close observation, one certainly dilute the other.
UNDERSTANDING THE RIGHT TO BE FORGOTTEN

The Working Party Guidelines released by the EU Assembly clarifies the judgment in certain
aspects. Accordingly, data shall be removed from the search engines, but the information would
still be available be able to the users at the original website by using the search term other than
the name (including nicknames and pseudonym) of the data subject.160 As a thumb rule, the right
of the data subject prevails over the economic interest of the search engines as well as the right
of the users to have access to the personal data of the data subject.161 Even when publication of
data by the original publisher is lawful and without any prejudice to data subject, its widespread
dissemination and accessibility by the search engine could be unlawful due to the adverse impact
on privacy.162 However, to avoid the conflict of the right to be forgotten with the right of
freedom of speech, the result of the request may depend upon the nature and sensitivity of data.
In other words, if the general interest of public outmatches the personal liberty, request could be
rejected. If the data subject plays a significant role in ‘public life’ (to be more accurate, having a
degree of media exposure), then the data about his activities relating to his professional concern
would not be erased, i.e. news regarding corruption scam of a politician; however, situation
would be different if the data is with respect to his personal life, i.e. information relating to
marriage life, sexuality or religious belief of an actor. The data in the first illustration could
apparently affect the decision of a citizen in casting vote, whilst the data in the next illustration
could hardly qualify to be a data that concerns the mass.
158
Leone Watson, MailOnline publisher says right to erase history is a nonsense, daily mail (4/7/14),
available at http://www.dailymail.co.uk/news/article-2678376/Google-deletes-MailOnline-searches-lying-
referee-right-forgotten-kicks-European-searches.html, last seen on 15/10/15
159
Supra 3
160
ARTICLE 29 DATA PROTECTION WORKING PARTY, 14/EN WP225
161
Ibid
162
Supra 2
P a g e | 50
JURISDICTIONAL OUTREACH IN THE CASE

It is EU Assembly’s mandate that the ruling of the ECJ would also be applicable to the universal
domain of Google- ‘Google.com’.163 There is no doubt that the ECJ had the jurisdiction to hear
the case for the action concerning Costeja was endorsed by Spanish domain of Google. The EU
laws are applicable to the non-European companies doing business in EU.164 However, universal
domain of Google or the other non-European domains cannot said to have doing business in
Europe for they carry out their substantial activities outside the Europe. According to the
principles of private international law and Article 60 of the Convention on Jurisdiction and the
Recognition and Enforcement of Judgments in Civil and Commercial Matters, there should be
‘clear link between data subject and the EU’ for the jurisdiction of the ECJ to apply. Therefore,
the ECJ could not legitimately pressurize Google to remove the data available on the non-
European domain on request from an European citizen as it clearly contradicts the principles of
private international law.
GOOGLE’S PUZZLE/ ABSENCE OF UNIFORM PROCEDURE IN

IMPLEMENTATION
The aftermath of the Costeja judgment has never been easy for Google to deal with. Firstly they
conveyed their resources to agitate the judgment and finally had been left with no choice to
resist. Further the decision did not prescribe any particular method for considering the delisting
request and left the room open for broader interpretation. This worsened the situation for the
search giant as it was harshly criticized for adopting a clumsy approach while considering the de-
listing requests.
In August, Google removed links via searches on an unspecified name to pages from 2010 and
2011 on the Guardian and Daily Mail. The stories covered a referee in Scotland, Dougie
McDonald, who admitted lying about awarding a penalty in the Scottish FA Cup. The links have
163
Supra 6
164
R.LAKE, V.P. NANDA, EUROPEAN UNION LAW AFTER MAASTRICHT, 348 (1ST ED., 1996).
P a g e | 51
since been reinstated and can be found on searches for McDonald's name.165 Responding
vehemently, news media outlets, including the BBC and the Guardian, had protested Google's
erasure of several of their stories in consonance with the "right to be forgotten" laws.
Although, after the adoption of the Working Party guidelines (in late November this year)
clarifies the relevant terms like ‘accurate’, ‘relevant’, and provides several other instruction
regarding implementing the ruling, situation might allay for the search giant. Nonetheless, the
Working party guidelines too are silent on adopting any uniform procedure to implement the
judgment. It approves any ad hoc procedure that may be used by the search engines. This puts
companies in all but unfeasible and omnipotent position in deciding what data meets the vague
threshold. Holding intermediaries responsible for determining what information is in the public
interest is unsafe and unworkable.
For considering the de-listing requests Google has hired some private paralegals and the whole
onus to implement the crucial ruling lies on their judgment. It goes without saying that the
Private players like Google would like to approve the request that might have the possibility of
going other way round; after all it operates for profit and won’t take any risk to incur the extra
costs in litigating the illegitimate requests. The statistics so far affirms this contention as Google
has received more than 174,000 requests concerning more than 602,000 links and the company
claims it has removed 51.5 per cent of these links.166
COULD INTERNET FORGET ANYTHING?

In addition to the jurisdictional issue, it is the viability of the right that stands questionable. It is
hard to believe with the loopholes in the judgment and the Article 29 Guidelines, that internet
could forget anything. As the intended search result could be obtained by using the terms other
than name, in reality, all the ruling establishes is "the right to not be indexed by a search engine."
165
Steve DelBianco, No Easy Answer for Enforcing the European "Right To Be Forgotten", Forbes
(16/8/14), available at http://www.forbes.com/sites/realspin/2014/10/06/no-easy-answer-for-enforcing-
the-european-right-to-be-forgotten/, last seen on 10/10 2015.
166 Matt Chorley, Terrorists are trying to use Google 'right to be forgotten' law to cover up their trials
in 'censorship by the back door’, Mail Online (27/8/14), http://www.dailymail.co.uk/news/article-
2830082/Terrorists-using-right-forgotten-cover-trials-European-courts-created-censorship-door.html, last
seen on 26/10/2014,
P a g e | 52
In other words, the information intended to be forgotten is not effaced, but rather remains on the
site where it is. The only obligation search engines have is that we not be directed to that site. 167
Hence the ruling only intensifies the existing disparity between those who know where to find
the information and look for it directly, and those who do not, and therefore reach it via search
engine. Some cannot access information, while many others can.
RESOLUTION FOR THE PROBLEM

Currently search engines have been bestowed with the responsibility to execute the crucial ‘right
to be forgotten ruling’ and the Data Protection Agencies of concerned nations acts as the
supervisory authority, meaning thereby the DPAs can take further action if the search engine
refuses to accept the erasure request.
If the EU commission and Court, the custodians of entire Europe, wishes to confer a privilege to
its people then it should refrain itself from employing a half hearted approach by conferring the
vital responsibility in the hands of private players. Instead rather it should call upon the DPAs to
assume the primary responsibility of considering the de-listing request. This will also be in
conformity with the article 28(4) which empowers the DPAs to hear the claims lodged by any
person for protecting his personal data, making it the body of first redressal. Hence according to
this if a data subject objects to the information available on internet relating to him, he should
first approach the concerned DPA via electronic form or any other procedure (although online
process could costume the privilege in the best way), to contest the listing of information. And if
the concerned DPA consider the request to be legitimate it can order the search engine to de-list
the content.
The acceptance of the responsibility by the concerned DPAs would possibly serve the best
purpose with regard to the said right. Firstly, it will certainly make the de-listing process more
transparent and trustworthy. Secondly it will ease down the job of the search engine as their task
would be limited to follow the command of the DPAs without going into the merit of the request.
Thirdly, it would mitigate the ‘unnecessary’ cost of the search engine in engaging the
167
Eduard Bertoni, The Right to Be Forgotten: An Insult to Latin American History, THE HUFFINGTON
POST (10/8/14), available at://www.huffingtonpost.com/eduardo-bertoni/the-right-to-be-forgotten,last
seen on 27/10/2014.
P a g e | 53
‘paralegals’ to ensue the ruling. And, more importantly, it would make the process more
authenticated as the concerned DPAs perhaps would contemplate more upon the merits of the
request, in stark contrast to the approach of the search engines, for whom the primary interest
would always be ‘ carry the business, avoid litigation’.
CONCLUSION
When the EU commission resoundingly states that the legitimate interest between the rights will
be maintained, there is no escape without justifying the liability sincerely. In short, the state
regulatory agencies would have to take over the elementary task of considering the requests for
data erasure, for leaving it to the private corporate would make the process cumbersome and
questionable. Alongside this, the Working Party’s mandate to besiege ‘Google.com’, the global
index of the search engine, within the effect of the ruling also demands a cogent revision. For
now, there are several questions that could make it increasing difficulty for the famous ruling to
save itself from the spate of asymmetries, inequalities and conflicts with the right to free speech.
Nonetheless, considering the EU commission’s unwillingness to take a step back or ahead from
its current stance ensures that the debate over delineating the distinction between private life and
the public good in light of this ruling will play out over the long term.
A COMMON SPACE FORUM FOR ASIA: FEASIBILITY STUDY

AYUSH JHA168 AND KARAN MITTAL169
There is a clear divide on the basis of political grounds in the space cooperation in Asia. The
Asia-Pacific Space Cooperation Organization (APSCO) is dominated by China and it is
primarily sponsored by it. On the other hand Asia-Pacific Regional Space Agency Forum
168
LL.M Graduate, WBNUJS Kolkata.
169
3rd Year, WBNUJS Kolkata.
P a g e | 54
(APRSAF) is the idea of Japan and is sponsored by it. These two organizations have a lack
proper coordination. This paper will primarily focus on these two Asian regional initiatives and
try to crystallize that there is a need of a stronger and a better representative organization in Asia
and assess the role of other regional organizations in Asia which are not exclusively working in
the field of space activities but which are inter-governmental organizations, such as SAARC.
The feasibility of a common space forum in Asia will be assessed by the analyzing the already
existing regional organizations of the globe which are working successfully, in particular the
ESA and its comparison with the APSCO and APRSAF. There is a need of integration of these
two regional agencies and formation of a new regional space organization in Asia. Further, it
analyzes the question what should be the model for such a common space forum on which its
structure should be made and discusses structural aspects of various agencies to the extent it
establishes the feasibility of a common space forum in Asia.
I. INTRODUCTION
Under the umbrella of international space law, the two major players conducting activities in the
outer space are considered to be the United States and Russia. But with the passage of time new
players entered into the field of space activities. Amongst these were the developing countries
with less technical and economical capacity. Yet in order to mark their presence in the
international domain with regard to outer space activities, these countries started to conduct
space related activities. The Asian countries, in particular, China, Japan and India, have
conducted a myriad of space programs from telecommunication satellite to mars rovers.
Presently all these countries are economically and technologically sound to perform such
activities unilaterally. Yet international cooperation between the countries can play a major role
in an efficient space missions.170 The countries have realized that in order to avoid conflicts there
is a necessity of co-operation.171 International cooperation may be regional or universal or
multilateral or bilateral.
Due to increase in outer space activities there is need of cooperation amongst the nations,
especially those who are in geographical proximity as it will be easy for them to pool their
170
N. Jasentuliyana, International Space Law and the United Nations, Kluwer Law International, p. 351
(1999).
171
James Clay Moltz, Asia’s Space Race, Columbia University Press, p. 206 (2012).
P a g e | 55
resources. 172
According to Outer Space Treaty, Article 1, “the exploration and use of outer
space, including the Moon and other celestial bodies, shall be carried out for the benefit and in
the interests of all countries, irrespective of their degree of economic or scientific development,
and shall be the province of all mankind.”173 Also, the International Cooperation Declaration,
1996 states that such cooperation shall be done taking into account the needs of developing
countries.174 This declaration also suggests that “International cooperation should be conducted
in the modes that are considered most effective and appropriate by the countries concerned.”175
In order to achieve international space cooperation the countries are required to have a common
platform to discuss and negotiate the matters of cooperation any to resolve any conflicts. Just like
any other international field, Space law also should also be dealt by the regional mechanisms so
as to check the concentration of space activities in few hands and ensure adequate representation
of the smaller nations who are otherwise unable to voice themselves in space activities.
In Asia, there have already been attempts of regional cooperation, such as South Asian
Association for Regional Cooperation (SAARC), Association of South East Asian Nations
(ASEAN). Apart from these organizations, there are two space related regional organizations in
Asia, namely, APRSAF and APSCO. APRSAF was formed in 1993 following the Asia-Pacific
International Space Year Conference (APIC) in 1992.176 While APSCO is a relatively recent
body established in 2005 and started functioning in 2008, its seeds were sown in 1992 in form of
Asia-Pacific Workshop on Multilateral Cooperation in Space Technology and Applications (AP-
MCSTA), an initiative of China.177 In contrast with the APRSAF, APSCO is properly
institutionalized and is the 2nd largest space international organization, after European Space
Agency (ESA).178
II. THE NEED FOR A SPACE REGIONAL ORGANIZATION

172
Ibid.
173
Article I (1) of the Outer Space Treaty 1967.
174
GA res. 51/122, UN Doc. A/AC.105/572/Rev. 1 (1996).
175
Ibid.
176
Marco Aliberti, Regionalisation of Space Activities in Asia?, ESPI Perspectives 66, European Space
Policy Institute, (2013), available at
http://mercury.ethz.ch/serviceengine/Files/ISN/163952/ipublicationdocument_singledocument/80f6d684-
f79f-4eb3-9954-68c1f30c3d79/en/ESPI_Perspective_66.pdf (last visited on 17th January 2015).
177
Marco Aliberti, Supra
178
Ibid.
P a g e | 56
There is a clear divide on the basis of political grounds in the space cooperation in Asia. The
APSCO is dominated by China and it is primarily sponsored by it. On the other hand APRSAF is
the idea of Japan and is sponsored by it. In terms of institutionalization the former is at a better
pedestal than the latter, but when it comes to equality and openness, the latter seems to be having
more representation and openness.179 In contrast with APSCO, which is fully institutionalized on
the model of ESA, having a Council and a Secretariat, the APRSAF is a forum that is not
institutionalized but having discussions and meetings on a regular basis.180 It is also blamed for
not focusing on the needs of developing countries such as transfer of technology.181 The problem
with the APSCO is that it is largely dependent on China to function as a body and it is also
alleged that it is merely a Chinese tool to demonstrate its power related to space.
It is apparent that these two agencies have never tried to cooperate with each other because of the
political divide between China and Japan, with India not particularly selecting sides, even though
it has hosted one of the Sessions of APRSAF. Because of this division in cooperation, there are
chances of hostility amongst the already hostile nations.
According to J.C. Moltz “The APSCO-APRSAF rivalry, and their split largely along the lines of
political orientation, bodes poorly for new forms of region-wide integration in space activities.
There is no evidence yet of close engagement and cooperation among leading Asian states that
might allow true burden-sharing and the reduction of competitive space impulses through mutual
interdependence, as seen in Europe”182
Another area of concern is that some of the smaller countries opt to take help of the non-Asian
countries with regard to civil and commercial space activities. This further prolongs the idea of
Asia’s Common space forum. The other problems associated with the lack of a comprehensive
space organization are- lack of technical knowledge, and because of the divide the smaller
countries are unable to gain access to the technological advancements; also there is a lack of
179
Ibid.
180
Rong Du, Space Cooperation in Asia: a Mystery, available at
http://swfound.org/media/187608/rong_du_paper_iac_2014.pdf (last visited on 15th January 2015).
181
Ibid.
182
J.C. Moltz, China, the United States, and Prospects for Asian Space Cooperation, in Journal of
Contemporary China, Volume 20, Issue 68, 2011, pp. 69-87 in supra note 7.
P a g e | 57
technical personnel. In sum, there appears to be a lack of decision making process on space
programs in Asia.183
In the present international setting there is no concentration of powers in few hands but there are
many great powers which are capable of conducting space activities. With the Chinese Human
flight in 2003 and its Anti satellite Test in 2007,184 it was set to be believed that the Asian
countries are well within the space race. With India sending rovers to moon and mars it has
successfully gained the lime light in the international arena. The two other major players in the
outer space activities in Asia, namely China and Japan have failed previously in their attempt to
send Mars missions which costed them more than what India has spent in its Mars Mission.
There is a clear competition between these countries to demonstrate their presence in the outer
space activities. These countries have also not participated in any talks with each other on the
issue of space security.185 And because of globalization there has been a trade of information and
technology resulting into a need of cooperation.186 There is another reason for cooperation that is
the presence of debris and pulse radiation into orbital environment which is seen very harmful.
There are certain motivations to the Asian Countries which has led to the space race in the
region. Firstly the scientific-technical motivation that has urged the countries to have access to
the foreign technology and subsequently developing their own. This will require an influx of
huge budget for the development of infrastructure, employing the scientific and technical
personnel and training and education related aspects.187 The space technology is particularly
beneficial to these countries in terms of broadcasting, telecommunications, disaster warning,
transportation and navigation , etc. There is a great social need of the space technology in the
field of national security as well. The knowledge related to development and improvement of
weapons, guidance technology for military purposes, etc are taken seriously by the major Asian
countries. And because of the constant rivalry in the region there also appears to be an issue of
international prestige which will earn them support from other nations in future space related
183
Chukeat Noichim, Promoting ASEAN space cooperation , Space Policy, 2008; in supra note 11.
184
J. C. Moltz, “It’s On: Asia’s New Space Race”(2015),available at
http://www.thedailybeast.com/articles/2015/01/17/why-china-will-win-the-next-space-race.html last
accessed on 15th February 2015.
185
P. 13 infra.
186
Asia space race p. 14
187
Asia space race, Ibid 26.
P a g e | 58
initiatives especially those countries who are yet to make a mark in the field of outer space
activities. Because of this reason precisely China and Japan have sponsored two different
organizations in Asia as a means to demonstrate their power and their participation in
development of space law and outer space related activities.
Because of the increased competition and the above said factors and motivations it becomes
important that the activities should be monitored and regulated by a regional organization. This
will also ensure the balance of power which since most of the major players have divided
themselves on the basis power relationship. Therefore, presence of a common space forum in
Asia will not only help the smaller countries but also the space faring nations as they will be able
to pool the resources and develop their own common space programmes. A common space
forum will also look into the capacity building exercise for the smaller nations which are yet to
make a mark in space activities. A regional cooperation may also be useful in
III. TAKING EXAMPLE OF ESA
Amongst all the Space organizations the European space agency is considered to be the real
space organization which has conducted space activities in all areas. It was established by the
Convention establishing ESA 1975. It took over the rights and obligations of European Space
Research Organization (ESRO) and the European Organization for the Development and
Construction of Space Vehicle Launchers (ELDO).188 Because of the failure of these two, the
participants in the European Space Conference decided to create a new organization, the
European Space Agency, which would aim at giving Europe a flexible and efficient organization,
with the aim of harmonizing and to coordinating national programmes with the joint effort of
European member states as given under Art 2 of its convention.189 The main purpose of the ESA
is to provide and promote, for exclusively peaceful purposes, cooperation among European states
in space activities and applications, with a view to their being used for scientific purposes and for
operational space application systems:
‘1. By elaborating a long-term European space policy and concerting the member states’ policies
with respect to other national and international organizations and institutions;
188
Supra note 1 at p. 88.
189
P a g e | 59
2. By elaborating and implementing a common European space programme;
3. By coordinating the common European space programme and the national programmes, and
by integrating the latter progressively and as completely as possible into the common European
space programme, in particular with regard to the development and construction of application
satellites;
4. By elaborating and implementing the industrial policy appropriate to its programme and
recommending a coherent industrial policy to the Member States.
In contrast with Asian trends ESA members cooperate extensively with each other. The whole
ESA is jointly financed with a yearly budget of over 5 billion USD.190
As an international organization, the European Space Agency has a legal personality and
capacity. Hence, it is able to cooperate with other international and national organizations and
with non-member states and to conclude agreements with these entities. Structure of ESA is
divided into a decision making organ i.e. the Council and an Executive organ which is the
Director General.191 The agency also has some establishments such as European Space Research
Technology Centre European Space Operations centre and the European Space Research
Institute.192
ESA has been elemental in the field of Space rescue, registration of space objects Direct Satellite
broadcasting and remote sensing.193 It also takes part in the work of other space organizations
and the United Nations. It has created a committee called committee on international relations
which coordinates with these international bodies. In contrast with Asian counterparts ESA has
also played the role of regional legislator in the field of space law. For example it has adopted
certain internal laws to adopt international laws and has also adopted some resolutions for the
same.
In sum it has been the most successful space activities related entity with a great number of
participants. There is homogeneity in the organization and the countries are having greater
190
Ibid.
191
Ibid.
192
Ibid.
193
P a g e | 60
political coherence as compared to Asia. Also, because of the equality in the power relations
amongst the member states, there is not one single country which can be said to dominate the
whole organization. Moreover, the experience of European Union has paved way for a regional
cooperation in Europe which has proved to be successful for the European nations.
IV. THE TWO SPACE AGENCIES OF ASIA
Japan Proposed, the creation of the Asia-Pacific Regional Space Agency Forum (APRSAF), at
the Asia-Pacific International Space Year Conference in 1992 which was established in 1993.
Initially, it was intended to be a forum for exchange of views by having coordination and
cooperation among the space agencies of various nations in the region. 194
The participation in the meetings and other activities of APRSAF is open to agencies involved in
space science, technology and its applications and governmental bodies, as well as companies,
universities and research institutes.195
The decisions are made in following manner:196
1. Any decision and agreement of APRSAF that affects its work and activities is reflected in the
set of recommendations adopted in the plenary at the annual session.
2. The recommendations of APRSAF also reflect the collective views of the participants of
APRSAF session.
3. APRSAF adopts its recommendations by consensus
In response to Japanese led APRSAF, China has led the formation of Asia-Pacific Space
Cooperation Organization (APSCO), which was established in 2005 and has been operational
since 2008.197 The predecessor of APSCO is the Asia-Pacific Workshop on Multilateral
Cooperation in Space Technology and Applications (AP-MCSTA) 1992 which had the aim of
194
About APRSAF, available at http://www.aprsaf.org/about/ (last visited on 5th February 2015).
195
Ibid.
196
Ibid.
197
About APSCO, available at
http://www.apsco.int/AboutApscosS.asp?LinkNameW1=History_of_APSCO&LinkNameW2=Initializati
on_Stage_of_APSCO&LinkCodeN3=11171&LinkCodeN=17 (last visited 5th February 2015).
P a g e | 61
regional scientific and technological exchanges between China and other developing states.198
APSCO is the second largest space international organization, after ESA. Currently nine
countries are signatories of the APSCO Convention: Bangladesh, China, Indonesia, Iran,
Malaysia, Mongolia, Pakistan, Peru, Tajikistan, Thailand, and Turkey, while Kazakhstan,
Malaysia and Tajikistan are expected to accede to the Convention soon. Moreover, other
countries have been participating as observers.199 As for APRSAF, the composition of the
organization reflects the openness of Asian regionalism. Compared to APRSAF, APSCO
presents a more formal structure, modeled on the ESA, with a permanent council and a
secretariat headquartered in Beijing. It also enjoys full international legal status. The main
purpose of this intergovernmental organization, Article 4 of its Convention, is “to promote and
strengthen the development of collaborative space programmes between Member States, to assist
Member States, to promote cooperation, joint development, and to share achievements among
the Member States”. There are some similarities between ESA and APSCO but because of the
Chinese hand in APSCO it seems that there is only one country which runs the organization. It
also sustains the major part of the financial cost. The fields of cooperation identified by article 6
of the Convention are space technology and applications, earth observation, space science
research, education and training, space law, policy and regulations. Together with a
Development Plan, concrete projects have been approved by the Council meetings in each of
these fields.200
In addition, training and education activities are carried out on a regular basis, contributing to the
exchange of information and the sharing of knowledge. Concerning space law activities, APSCO
is currently promoting the establishment of a Research Centre for Space Policy and Space Law
intended to benefit Member States and to promote regional peaceful uses of outer space.
While it seems that APSCO is a more stable body it is also accused of being a tool of China to
demonstrate its power. It was also speculated that China intentionally excluded other major
198
Ibid.
199
Ibid.
200
Programs, available at
http://www.apsco.int/program.asp?LinkNameW1=Development%20Plan%20for%20Space%20Activities
%20of%20APSCO&LinkCodeN=89 (last visited 5th February 2015).
P a g e | 62
players of Asia like Japan and India in order to manipulate APSCO, so that it may have a greater
autonomy.201
Because of the political divide there are many problems with regard to the feasibility of a
common space forum in Asia. In the event of a voting in the legislative body of the forum, there
will be tension and one or the other country may become hostile owing to its own interests and
advantages. The nations which are not space faring will be having a lower hand in such a big
organization, given the size of Asia. There is also a problem of the national space programmes
being in conflict with the Forum’s space policies. Some countries might not accept the policies
and decisions which are not in consonance with their national policies. Also, by looking at the
previous attempts at regional co operation, it can be said that there is lack of willingness to
cooperate amongst the big nations. There is always some disputes amongst the nations with
regard to state boundaries like India-Pakistan and India-China, which, however, has nothing to
do with space activities, but it always creates tension between these countries which may be
reflected in the negotiations of the Forum. The Two space agencies have also not shown any
signs of cooperation between themselves which again prolongs the idea of a common forum.
With China and Japan holding no talks on co operation there is no possibility of integration of
the two agencies and making a common forum.
V. CONCLUSION
The Asia’s regional Space need may be fulfilled by establishing a space agency on ESA’s model.
However, given the size of the continent it will be wise to have more than one agencies but there
ought to be a greater coordination between the two competing agencies. There is also a
possibility of merging these two into one on the ESA’s model but to that end China and Japan
must negotiate and settle their differences in order conduct to peaceful outer space activities for
the benefit of the region and also they should not see themselves as competitors but partners and
the competition must be with the rest of the world rather than with each other. India has also a
role to play in harmonizing the Space related issues in Asia. It has better relations with the South
Asian countries and with the Japan.
201
Supra note 11.
P a g e | 63
India also looks at harmonizing relations with China in the field of outer space activities. During
the visit of Chinese President, the two countries have signed MoU with regard to peaceful use of
outer space.202 Indian Prime Minister has also voiced about a SAARC satellite during his visit to
Nepal and also giving assistance to other SAARC nations in field of Space technology.203
In a nutshell, as of now, a common space forum for Asia is not a feasible idea. Rather, the space
faring nations of the region must take steps to strengthen the existing forums and harmonize the
relations amongst themselves. The focus should be on capacity building and technical assistance
to the disadvantaged nations. When a large amount of nations are well equipped, then only there
is a possibility of a common space forum in the region.
THE GANDHIAN INTELLECT AND GERMAN ENCROACHMENT
MUKUL KRISHNA VYAS204 AND DEEKSHA JAIN205
ABSTRACT
Khadi has been a symbol of India’s well fought independence struggle. It has been the most important
tool for Mahatma Gandhi to attain unity and self reliance in India. Post Independence, the Government of
India set up the Khadi Village and Industries Commission, to channelize the small and medium khadi
enterprises and help them make their presence internationally. Since then the KVIC has left no stone
unturned to promote Khadi all across the globe. Recently, a German company named ‘Khadi
202
India, China sign 16 MoUs during Xi Jinping's visit, available at http://www.business-
standard.com/article/news-ani/india-china-sign-16-mous-during-xi-jinping-s-visit-114091801001_1.html
(last visited 5th February 2015).
203
Ajey Lele , India’s SAARC satellite proposal: a boost to a multilateral space agenda (2014), the Space
review, available at http://www.thespacereview.com/article/2579/1 (last visited 5th February 2015).
204 th
4 Year, NLU Jodhpur.
205 th
4 Year, NLU Jodhpur.
P a g e | 64
Natureprodukte GBR’ registered Khadi as a trademark for its products across various nations such as
Spain, Germany, USA, etc. This is resulting into a major dilution of goodwill of the Indian Khadi in the
international markets. This paper analysis how Indian Khadi is a well known trademark across all
jurisdictions and discusses at length, different aspects of protection of Well-known trademarks flowing
from various international treaties such as TRIPs, Paris Convention, Madrid Convention, etc. It elaborates
as to how the Khadi GBR is reaping the fruits of the Indian Khadi. The paper further endeavours to find
out the obligations of EU and Germany with regards to guaranteeing protection to Khadi. Mere discussion
of a problem is no step towards its solution. Therefore the paper also provides for a future course of
actions which the Government of India and the KVIC should follow in order to protect the struggling
‘Gandhian Intellect’.
"We cannot claim to have understood the meaning of Swaraj till Khadi becomes as universal as
currency."
- M.K. Gandhi
INTRODUCTION
Trademark is an unusual feature in both industrial and commercial markets. Trademarks are a valuable
intellectual asset which is readily associated with the quality and consumer expectations in a product or
service. The use of trademarks possibly dates back to the last millennium when craftsmen in India, China
and ancient Rome used special marks to distinguish their products.206 Scientists have come across
excavated artefacts from places such as ancient Egypt with various symbols carved thereon for religious
and superstitious reasons. "Potters marks" appeared in relics left from the Greek and Roman periods and
were used to identify the maker (potter) of a particular vessel).207
In the earliest time, such marks used to indicate ownership but with advancement in the industries and
media, consumers tend to associate such marks with a particular manufacturer expecting certain quality
and hence ‘from being a source of liability, it has become an indicator of quality’ 208. Trademarks are
‘relational’, in the sense that ‘it is a right created by the confluence of a mark, the goods or services to
206
Jayashree Watal, Intellectual Property Rights: In the WTO and Developing Countries, 243, (1st ed.,
2001).
207
Dr. Shoen Ono, Overview of Japanese Trademark Law, 1, (2nd ed., 1999); Available at: Overview of
Japanese Trademark Law, Institute of Intellectual Property, available at
http://www.iip.or.jp/e/e_publication/ono/index.html , last seen on 31/10/2015
208
Lionel Bently & Brad Sherman, Intellectual Property Law, 712, (3rd ed.,2009)
P a g e | 65
which the mark refers, and the identification of the source of the product by the mark’.209 The trademark
serves the public interest by protecting them from confusion and this is achieved by enforcing the private
rights of the trademark holder against such infringement.
With the transition of time, marks which were earlier indicating quality now suggest the origin or source
of a product and acquisition of a vast reputation in the market invite a misuse of such well known mark
which is evident when one tries to take in fruits of the build up goodwill of any empirical trademark.
Thus, ascending globalisation and free trade regimes posed a necessity of carving an international
regulation governing the trademarks system.Paris Convention for the Protection of Industrial Property,
1883 has quite fairly accommodated the standards of protection of trademarks. It applied the principle of
national treatment ensuring foreign protection of trademark but non-creation of a mechanism for
international application of trademarks disappointed the traders. However, Madrid Agreement on the
International Registration of Marks, 1891 and the Madrid Protocol of 1989 kept the hope of traders. It
provided that after making a registration of the said trademark in the home country, a company or an
individual may apply to WIPO for an international registration.
With the outlook that if a business operates at ‘transnational’210level then it will typically have all means
to register their trademark and thus, the concern of protection of such unregistered trademark was much a
headache of small industries. With the expansion of businesses across one geographical boundary, the
misuse of such trademark has increased. To prevent such pervert use, Paris Convention imposes an
obligation to recognize and protect well-known marks even where they have not been registered.211TRIPs
tweaked the standards with the growing positive changes in competition in international trade and
commerce. It extends protection to famous marks without a need for registration for both similar as well
as dissimilar goods and services.
Khadi being a symbol of Indian National Freedom Struggle and idealising Mahatma Gandhi has gained a
reputation of well known mark in India and across the globe. Recently, a German Company registering
itself as ‘Khadi Naturprodukte Gbr’ sliced the reputation and goodwill of this Indian symbol. It has
claimed itself to be a manufacturer of Khadi products through our well known ayurvedic intellect.212 Not
only Germany, the company is encroaching upon the “Khadi Goodwill” in other countries like Spain, US,
209
Neil J. Wilkof, Trademarks and the Public Domain: Generic Marks and Generic Domain Names, 6,
European Intellectual Property Review 571(2000)
210
Lionel Bently& Brad Sherman, Intellectual Property Law, 722, (3rd ed., 2009)
211
Article 6bis, Paris Convention for the Protection of Industrial Property; 1967, (WIPO)
212
About Our Khadi Products, Khadi Natureprodukte Aus Indien, available at http://www.indien-
produkte.de/shop_content.php/coID/10/product/About-Khadi, last seen on 31/10/2015
P a g e | 66
Hungary. Such an invasion on Khadi is largely been criticised all over world and there is an urgent need
of the hour to take an action against Germany by the Indian Government.
This paper discusses about how can Khadi, being a well Known mark in India protect itself from being
vanished and exploited. It also throws a light on the development of recent legal protection for well
known marks.
THE CONTROVERSY
Khadi, a special type of hand-spun cloth made in India, was popularized by Gandhi as a symbol of self-
sufficiency and Swaraj (self-rule) in the midst of the Indian National Freedom Movement. The German
company ‘Khadi Naturprodukte’ has established its European base in various Ayurvedic products which
incidentally, are products marketed and sold by Khadi and Village Industries Commission (KVIC), an
arm of the Ministry of Micro, Small and Medium Enterprises (MSME), in addition to fabric. Indian Khadi
under the name of Khadi Village and Industrial Commission (KVIC) is registered as a Trademark under
the Indian Law and has been formally also manufactures and sells similar Ayurvedic products such as
Khadi oil, cream, medicines and cosmetics.
It all started in November 2014 when the Indian Government was informed about a German company
encroaching upon the Gandhian intellect of ‘Khadi’. The German company acquired a trademark as
‘Khadi Natureprodukte ’Indian government objected to the German company's attempt to use the khadi
trademark for selling a range of Indian-origin products, including shampoos, soaps and oils in European
markets. The company’s trademark is registered with Office for Harmonization of Internal Markets
(headquartered in Belgium), which registers designs and trademarks in EU. It claims inter alia that
“Thousands of years ago India’s great sages compiled together hundreds of herbs and their combinations
along with oils that heal and rejuvenate……Our products to reflect that sentiment of going back to a
heritage and tradition which is pure, handmade and which incorporates the best from the most ancient
teachings in the world. Khadi is a unique brand for the European market and only exclusively available
with us.”213The company claims that it brings out its products from India and Indian medicinal and herbal
techniques.
213
Ibid
P a g e | 67
Not only in Germany, but the company has spread its routes even upto United States of America. On
Friday, December 09, 2011, a U.S. federal trademark registration was filed for KHADI by Khadi
NaturprodukteGbR, Rinteln214. The current federal status of this trademark filing is registered. The
company stepped even further by registering “KHADI NATURAL PRODUCTS FROM INDIA” as a
trademark for its products in USA.215 The khadi trademark is filed in the category of Cosmetics and
Cleaning Products . The description provided to the USPTO for KHADI is Bath oils for cosmetic
purposes, Cosmetic nourishing creams, Cosmetic oils, Cosmetic preparations and other such cosmetic
products.
To this, the government of India has filed objections with the Belgium-headquartered Office for
Harmonization in Internal Markets (OHIM).It asserts that Khadi is a well known trademark all over the
world and has gained a distinct identity. It says that “Khadi” is not just a “Trademark” but it is an icon of
National pride, a symbol of economic independence and a means of employment to thousands people
especially in villages where livelihood depends on “Khadi. Thus, the Government claims that Germany
along with other member nations to various international regulations has a legal obligation to provide
protection to Khadi and accept it as a Well Known Trademark (WTM).
THE INTERNATIONAL JURISPRUDENCE: UNDERSTANDING THE LEGAL REGIME OF WELL

KNOWN MARKS VIS-À-VIS OBLIGATION.
Khadi has been registered as a trademark in various European Union countries by a German Company.
Therefore the controversy majorly revolves around application of EU laws and specifically to that of
Germany. Therefore it is better to understand the international law in light of EU and German regime.
INTERNATIONAL TREATIES UNDER TRIPS

The conclusion of the Uruguay Rounds of Negotiations in 1994 led to the formation of WTO and
consequently a landmark binding agreement on IPRs called the Trade Related Aspects on Intellectual
Property Rights (TRIPs). Article 16(2) and 16(3) of TRIPs ensure protection of well known marks
regardless of whether they are registered or not and bind all member states to apply Article 6bis of Paris
Convention, 1967 to such marks.
The necessity of protection of well-known marks usually arises in new markets, i.e. in the countries
previously closed to foreign traders or which, through an increase in economic development become
214
USPTO Registration number of 85491209, List of registered trademarks under USPTO Available at
http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4802:8n3ogz.2. last visited 24th Feb 2015
215
Ibid
P a g e | 68
attractive for the suppliers of branded products. In those cases, the owner of the well-known, but
unregistered trademark is considered as worth protection as if she/he had actually registered the mark.216
In determination of a trademark as a well known mark, Article 16(2) takes two parameters into
consideration.217 Firstly, when the mark is known by the relevant sector in the public i.e. the sector of
public who makes the decision to buy based on their knowledge of product which may be acquired by
experience and specialization. The relevant sector may be assessed by geographical terms, potential
consumers, certain ethnic group and purchasing power of the consumers.218 Secondly, the knowledge of a
well known mark among consumers can also be established when the mark is promoted through any
activity or is advertised widely. According to recent case-law of the Federal Supreme Court of
Germany219, the necessary degree of consumer awareness can also result from other factors, e.g. from the
period of time and the intensity in which a trademark has been used.
But the European Court of Justice does not intend to conceptually determine definite percentage rates220.
In practice, the precise extent of brand awareness established by means of market surveys will, however,
continue to play a significant part. - Thus, knowledge gained through promotion is sufficient even if there
is no actual use or consumption of the said product where the protection is sought.221The sole intent of
inserting the term ‘promotion’under TRIPs was to prevent entrepreneurs from registering internationally-
known marks not used in a given territory, in order to bargain their buyback by the rightful owner.222
Furthermore there is a great obligation on nations to prevent unfair competition resulting out of confusion
caused by a Trademark embarking upon the goodwill of a previously existing mark. Article 10bis of the
Paris Convention obliges the contracting parties “to assure to nationals of such (member) countries
216
UNCTAD-ICTSD, Resource Book on TRIPs and Development, 239 (1st ed., 2005)
217
, Article 16(2): Article 6bis of the Paris Convention (1967) shall apply, mutatis mutandis, to services.
In determining whether a trademark is well-known, Members shall take account of the knowledge of the
trademark in the relevant sector of the public, including knowledge in the Member concerned which has
been obtained as a result of the promotion of the trademark. TRIPs ; Supra at 6
218
Nuno Pires De Carvalho, Kluwer Law International: The TRIPS Regime of Trademarks and
Designs;360 (2nd ed., 2011)
219
Fabergé Case, ZR 100/99 of 2001, (Supreme Court of Germany)
220
PAGO International GmbH v Tirolmilch registrierte Genossenschaft mbH.All ER (D) 188, (2009,
European Court of Justice)
221
McDonald’s Corp v. Joburgers Drive-Inn Restaurant (Pty) Ltd &Dax Prop CC, (1997) (I)SA 1
(Supreme Court of South Africa)
222
4: Basic Principles Available at
http://www.iprsonline.org/unctadictsd/docs/RB_Part1_Nov_1.3Update.pdf MTN.GNG/NG11/21, of June
22, 1990, para 19
P a g e | 69
effective protection against unfair competition”. What is referred to as unfair competition is further
elaborated under sub-clause 3 of the Article as:
all acts of such a nature as to create confusion by any means whatever with the
establishment, the goods, or the industrial or commercial activities, of a competitor; or
indications or allegations the use of which in the course of trade is liable to mislead the
public as to the nature, the manufacturing process, the characteristics, the suitability for
their purpose, or the quantity, of the goods
Therefore in any case where any practice is liable to cause deception or confusion in the minds of
consumers, is termed as an unfair practice. It is not only granted to the registered entities but also to the
unregistered ones. In the absence of registration of the well-known mark, the conflicting mark could
theoretically be registered and enforced to the detriment of the well-known mark, which would in most
cases result in consumer confusion. Such practice is widely regarded as constituting an act of unfair
competition223, thus requiring protection of well known trademark.
The Article 6bisand 10bis shall also apply when the essential part of the mark constitutes a reproduction
of any such well-known mark or an imitation liable to create confusion therewith.224
EUROPEAN REGIME OF WELL KNOWN MARKS

Directive 2008/95/EC, Article 4(2)(d)of European Commission juxtaposes the words ‘well known mark’
as they mean to use in Article 6bis of the Paris Convention. This means that there is no need for the mark
to have acquired any reputation, whether good or bad to be categorised as well known mark, ‘an
unqualified knowledge of the goods or services designated by the mark is enough’225. As many authors
point out a distinction between well known and well reputed marks, they also elaborately state that the
legal regime governs the former one disregarding the latter concept.226
Further, for assessing well-known mark TRIPs takes into account the extent to which the public in the
country in which protection is sought has knowledge of the mark i.e. quantitative approach and not the
223
G.H.C. Bodenhausen, Guide to the Application of the Paris Convention for the Protection of Industrial
Property as revised at Stockholm in 1967, BIRPI, Geneva, (1st ed., 1968)
224
US-Section 211 WT/DS176/AB/R, Doc. No. 02-001 Omnibus Appropriation Act of 1998 case, (2002,
World Trade Organisation )
225
NunoPires De Carvalho,Kluwer Law International: The TRIPS Regime of Trademarks and Designs,
364 (2nd ed., 2011)
226
Ibid.
P a g e | 70
financial value of the mark which is a qualitative approach.227Article 16(2) of TRIPs read with Article 1.1
of TRIPs extends to the Members a leverage to employ any method giving protection to well known
marks in practice. The national list of well-known marks is one such example. However, non-inclusion of
any well-known mark into the said list would not make that mark unqualified for protection.
GERMAN OBLIGATION
The protection of famous and well-known trademarks was codified under the German Trademark Act,
1994 implementing Article 5(2) of the First Trademarks Directive (89/104/EEC), in 1995. No separate
register was established for famous and well-known trademarks, rather, protection was granted by
introducing specific new provisions. Section 10 of German Trademark Act, 1994 in this direction states
that
A trademark shall not be registered if it is identical with or similar to an earlier trademark well
known in the Federal Republic of Germany within the meaning of Article 6bis of Paris
Convention and if the additional requirements of Section 9 (1) are met.
Section 9(1)(1) states that registration of a mark shall be cancelled if it is identical to the earlier mark with
identical goods or services. Therefore a combined reading of section 9(1) and Section 10 suggests that if a
mark is identical to an earlier well known mark (being defined under Article 6bis), its registration shall be
cancelled.
According to Article 14(2) of the Trademark Act, it is prohibited to use a sign similar or identical to a
well-known trademark in the course of trade for similar or evennon-similar products if such use without
due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the well-
known trademark. Moreover, according to Article 9(1)(3) of the Trademark Act, such marks can be
deleted from the register despite being registered for non-similar products.
WIPO JOINT RECOMMENDATION

The WIPO Joint Recommendation provides a non-exhaustive guideline to identify a well-known mark in
light of TRIPs Agreement, these are:
1. The degree of knowledge or recognition of the mark in the relevant sector of the public;
2. The duration, extent and geographical area of any use of the mark;
227
Protection of Well-Known Marks: Results of the Study by the International Bureau of Prospects for
Improvement of the Existing Situation, WKM/CE/I/2, of July 18, 1995, at 6.
P a g e | 71
3. The duration, extent and geographical area of any promotion of the mark, including
advertising or publicity and the presentation, at fairs or exhibitions, of the goods and/or
services to which the mark applies;
4. The duration and geographical area of any registration, and/or any applications for
registration, of the mark, to the extent that they reflect use or recognition of the mark;
5. The record of successful enforcement of rights in the mark, in particular, the extent to
which the mark was recognised as well-known by competent authorities;
6. The values associated with the mark.
KHADI AS A WELL-KNOWN MARK
“Khadi in India is not selling to earn but is weaved to protect the cultural symbol”.
The above-mentioned discussion clearly lays down the provisions under International perspective along
with the obligations on part of German Company in light of EU and German laws on well-known
trademark. The recommendations mentioned by the Joint Committee has been reiterated in the trademark
provisions of many treaties and laws at international level as well as followed by the countries in many
cases hence, though not of binding nature they set a direction and retain as a persuasive value for other
member countries.
Charka is a struggle symbol of India andKhadi gives it a colour. For Gandhiji it was a weaponagainst the
British textile mills which tried to overthrow the Indian cloth industry. There was a wave all over India to
boycott British clothes and to choose Khadi, a step forward towards making India independent. The
positive effect of Khadi made Indian government to establish a statutory body under the Act of Parliament
in 1957 which took over the work of All India Khadi and Village Industries Board. Khadi got its
protection under Trademark in 1979.228Since then, 37 trademarks have been registered in India for
different products which includes soaps, oil, fabric, washing powder, shampoos and strangely the German
company is also dealing with all these products except fabric.
228
Government Of India Ministry Of Commerce & Industry Department Of Industrial Policy &
Promotion’s Reply To Unstarred Question No. 1100 In The Rajya Sabha On 3rd December,2014. Details
of trademarks in the name of the KVIC which are not at present existing: 7. Trademark No. 346095
Available at http://dipp.nic.in/English/questions/03122014/ru1100.pdf Last seen March 5,2015
P a g e | 72
Khadi is being consistently exported to Germany as well as other European and American nations.229
India exported Khadi products of value Rs. 116.84 crores in the financial year 2010-11 and of Rs. 114.58
crores in the year 2013-14.230The above data specifically concludes the knowledge and recognition of
Khadi in the countries infringing the Khadi trademark as well as across the world. Many a German firms
do import Khadi products from India and sell it there that signals again towards the know-how of Khadi
in the relevant sector under the specific geographical area of German. In the United States, big companies
such as Wal-Mart, Sears, J.C. Penney, Dayton Hudson and K. Mart, account for a very large proportion of
garments sales, as do Daiei, Mitsukoshi, Daimaru and Ito Yakado in Japan, in Germany, the leading
garments retailers include Karstadt, Kaufhof, Schickendanz.231
Further, in order to promote khadi and village industries products in the international markets, KVIC
participated in 5 international exhibitions in 2006-07 along with khadi and village industries institutions/
entrepreneurs at AF-L Artigiano in Feira 11th International Craft Selling Exhibition, Milan, Italy (ii)
Paper World, Frankfurt, Germany (iii) MUBA-2007, Basel, Switzerland, (iv) Lyon International Fair,
Eurexpo, Lyon, France and (v) Cairo International Trade Fair, Cairo, Egypt. In 2007-08 (upto December
2007), KVIC has participated in 03 such international exhibitions held at Johannesburg, Brazil and
China.232 Recently, in February, 2014-15 KVIC participated in Export Promotion Council for Handicrafts
(EPCH) held in various countries including Germany.233
The Union Government through the Ministry of Micro, Small and Medium Enterprises provides funds to
KVIC for undertaking various activities. In 2006-07, the allocated budget was Rs. 677.75 Crores and the
share was increased to Rs. 735.22 Crores in 2007-08.234The allocation is large in terms of establishing that
Khadi is a well-recognised in India and for its production and promotion and for the same a huge amount
is spend.
229
Press Information Bureau, Government of India Press release- Steps taken to promote export of Khadi
products available at http://pib.nic.in/newsite/PrintRelease.aspx?relid=113654 Last seen March 5,
2015
230
Ibid
231
Badhe, Sanjay, (2004): ‘Retailing The Way Ahead’ in C.V. Gupte (ed) ‘Textile Vision 2010’,
Proceedings of INDIA ITME (International Textile Machinery Exhibition, Dec 4-11, 2004, Mumbai)
232
Explanation as to KVIC available at: http://msme.gov.in/Chapter%205-Eng_200708.pdf Last seen on
March 5, 2015
233
Participation in International Exhibitions during the year 2014-15 available at
www.kvic.org.in/update/MKT_Int_Exh_Schedule.doc last seen March 5, 2015

234
Supra at 27
P a g e | 73
FUTURE COURSE OF ACTION
After a thorough discussion as to what constitutes a well known mark, what are the rights associated with
such marks and how Indian Khadi is a well known mark, it is imperative to discuss the future course of
action as to the protection of the Indian Khadi. This section highlights some of the legal ways out to
protect the well known mark from being unduly exploited.
1. THE HOME EFFORTS:

The first and foremost step in light of protecting the Gandhian intellect is that India should itself
register khadi as a trademark. 37 trademarks containing the word ‘Khadi’ were registered with the
Registrar of Trade Marks in favour of Khadi and Village Industries Commission (KVIC) and 8
trademarks in the name of entities other than Khadi and Village Industries Commission (KVIC).
However, none of the 37 trademarks registered in favour of KVIC were renewed within the
prescribed time limit and therefore they are not at present existing.235 Also, the list of well known
marks available with the trademarks office236 should include Khadi as a well known mark.
1. CONSULTATIONS UNDER DSU

Because of territoriality of trademark laws, it is difficult to influence legislation and court
judgment in other countries when unfair dealing happens. Fortunately, the WTO has provided
dispute settlements regime through the Dispute Settlement Understanding (DSU). The Dispute
Settlement Body (DSB) is a responsible organ and it includes all WTO members. The
Government of India should file a consultation invoking its rights under Article 64 of TRIPs read
with Article XXII and XXIII of GATT, 1947 which apply in the present case. It can claim
nullification and impairment because of the intellectual property benefit directly accruing from
the Agreement which is being impeded as a result of failure of both EU and Germany to carry out
their obligations under the TRIPs and Paris Convention subsequently.
2. THE MADRID PROTOCOL

Madrid protocol came into existence in 1989 and was revised in 2007. It is meant for providing an
international registration of marks. This helps in avoiding the cumbersome process of registration in
individual country and provides a common platform for a mark to be recognized and protected in all
contracting parties. Article 2(1) of the protocol states that:
235
Supra at 23
236
WELL KNOWN MARKS available at
http://ipindiaservices.gov.in/tmrpublicsearch/wellknownmarks.aspx Last seen on March 5, 2015.
P a g e | 74
Where an application for the registration of a mark has been filed with the Office of a Contracting
Party, or where a mark has been registered in the register of the Office of a Contracting Party, the
person in whose name that application or that registration stands may, subject to the provisions of
this Protocol, secure protection for his mark in the territory of the Contracting Parties, by obtaining
the registration of that mark in the register of the International Bureau of the World Intellectual
Property Organization
This facilitates a person to protect his mark at the international platform. KVIC or The Ministry of
Micro Small and Medium can approach the International Bureau through the intermediary of the
Indian Office of Trademark Registration with which the basic application was filed. The procedure is
enshrined under Article 3 of the Madrid Protocol and Sections 36A to 36G of the Trademarks Act,
1999 read with Rule 67D of the Trade Marks Rules 2002 along with the rues prescribed under
Explanatory Notes on The Official Application Form Mm2 Application For International Registration
governed exclusively by The Madrid Protocol (Rule 9 Of The Common Regulations)237. Indian office
of Origin for international trademarks is situated at Mumbai. As an office of origin it receives
International Applications, verifies that such applications are in conformity with the provisions of the
Madrid Protocol and if found proper the office certifies and transmits such applications to the
International Bureau of WIPO.238 An international registration subsists for the period of 10 years from
the date of its registration and it may be renewed further by paying renewal fee before the expiry of
every 10 years.
3. PASSING OFF ACTION

Passing off refers to “a misrepresentation made by a trader in the course of trade to prospective
customers of his or ultimate consumers of goods or services supplied by him, which is calculated to
injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable
consequence) and which causes actual damage to a business or goodwill of the trader by whom the
action is brought or will probably do so.”239 It poses three major requirements firstly, goodwill of the
237
MADRID AGREEMENT AND PROTOCOL CONCERNING THE INTERNATIONAL
REGISTRATION OF MARK Available at
http://www.wipo.int/export/sites/www/madrid/en/forms/docs/form_mm2_inf.pdf Last seen March 5,
2015
238
Guidelines for Functioning Under The Madrid Protocol, Trademarks Registry, Mumbai; Available at:
http://www.ipindia.nic.in/Whats_New/guidelines_MadridProtocol_17 December2013.pdf Last seen
March 5, 2015
239
Erven Warnink BV v J Townend& Sons (Hull) Ltd, 2 All ER 927 (1979, House of Lords)
P a g e | 75
claimant secondly, misrepresentation by the defendant and thirdly confusion in the minds of
customers.240 Furthermore, German law on unfair competition has developed the animal of "slavish
counterfeiting"241 which states that even without a registered right, one has a cause of action if:
the technical features of a product or service or its design are copied one-to-one;
the counterfeiting causes a likelihood of confusion because customers think the copy was an
original; and
The counterfeiter acted in bad faith,
The courts in Germany have long far considered the importance of goodwill of any well known mark
not registered in Germany.242
The case of Khadi is best suited for passing off action in a way that it has established goodwill in the
international markets (as proved in the previous section) and a clear misrepresentation can be made
out of the company Khadi NatureprodukteGbr in the sense that it claims to be a manufacturer of
Ayurvedic products actualizing the Indian knowledge. Also it packages its products in the same
manner as that of Khadi, hence creating confusion in the minds of customers. Hence the Government
of India and KVIC should consider the proposal of filing a Passing off action and cancellation of the
German company’s trademark under Section 9(2) of the German Trademarks Act, 1994.
CONCLUSION
The objective of TRIPs has been that “The protection and enforcement of intellectual property rights
should contribute to the promotion of technological innovation and to the transfer and dissemination of
technology, to the mutual advantage of producers and users of technological knowledge and in a manner
240
Intel v Intelmark, All ER (D) 277, (2008, European Court of Justice)
241
Shelving System (Regalsystem,I ZR 136/11,(2013, Federal Supreme Court of Germany)
(Bundesgerichtshof) where a Czech manufacturer of shelves had identically copied—so it seemed—the
different parts of a well-known shelf system that had been on the market for at least 30 years.
242
SchutzverbandgegenUnwesen in der Wirtschafte.V. WarsteinerBrauereiHaus Cramer GmbH & Co.
KG, ECR I-09187, (2000, Court of the Justice of European Union)
P a g e | 76
conducive to social and economic welfare, and to a balance of rights and obligations.”243 What else could
be more neighbouring this objective than the function of KVIC and Khadi industry in India. It provides
for large scale employment to Indian villagers and development of small cottage industries in India. But
registration of the mark in Germany would hamper the reputation and markets of the small industries of
Indian Khadi. Therefore KVIC and other authorities should consider the plight of these people and take
strict actions against the such organisations who tend to deceive the public to encroach upon the Indian
intellect. The news of India pushing for cancellation of the German trademark comes at a time when the
Centre has been mulling trademark protection for khadi. But one good news in this light is that the
Community Trade Mark (CTM) Database which contains details regarding trademarks in Europe
indicates that the mark is pending cancellation, however details regarding the same could not be accessed.
This gets even stronger assertion as the packaging of some of the German company’s goods are almost
identical to that of KVIC’s products sold in India but no news reports seem to have made mention of this
rather intriguing fact.244
The news reports in Indian newspapers suggest that the Government’s strategy is to apply for cancellation
of the mark in US and Europe. But before taking any step towards international recourse, the KVIC
should ensure that their existing marks in India are renewed because there seems to be a pro-khadi trend
in India and it won’t be too long before traders in India to claim rights to the mark “Khadi” based on
usage of the mark. Moreover, there have already been some reports of around seven private registration of
the mark Khadi, which are not only registered but are also being constantly renewed also. As mentioned
earlier, trademark rights are territorial in nature and applying for registration in the countries where there
is an intention to the mark the goods or services would be the most plausible move. Also the course of
registration for international mark should be a quick process.
In all, this reflects a lack luster attitude of the Indian authorities towards Khadi. With absolute
independence in our account, we have forgotten the values upon which the freedom struggle achieved its
goal. There is a great need to protect Khadi as it, according to Mahatma Gandhi is the “sun of the village
solar system. The planets are the various industries which can support khadi in return for the heat and
the sustenance they derive from it.” In losing the spinning wheel we lost our left lung. We are therefore
suffering from galloping consumption.The spinning wheel is the thing which all must turn in the Indian
clime for the transition stage at any rate and the vast majority must for all time.
243
Article 7 Agreement on Trade-Related Aspects of Intellectual Property Rights, the Paris Convention
(1967)
244
Nikita Hemmige, The Khadi trademark story – From Gandhi to Germany
Available at http://www.selvamandselvam.in/blog/the-khadi-trademark-story-from-gandhi-to-germany//
Last seen March 5, 2015
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VOTING PROCEDURE OF UN SECURITY COUNCIL

AYUSH JHA245
1. BACKGROUND
The Security Council of the United Nations was established to ensure international peace and
security. In fact, this was the primary purpose of the Security Council. The victorious nations of
the World War II acquired the permanent membership of the Security Council with certain
exclusive powers and functions following the negotiations in Dumbarton Oaks till San Francisco
245
LL.M Graduate, WBNUJS Kolkata.
P a g e | 78
Conference.246 However, the Dumbarton Oaks proposals did not result into any provision for
voting owing to differences between the participating nations, in particular with regard to the
issue of voting by a permanent member who is also a party to the dispute. The United Kingdom
advocated abstention by such a member, while USSR held the view that unanimity rule should
be observed.247 An agreement was finally concluded at the Yalta conference after the initiative of
United States at Conference at Crimea, 1945 which proposed that there shall be unanimity with
regard to enforcement action, but in case of pacific settlement of disputes the party to the dispute
shall observe abstention.248 It is popularly known as the Yalta Formula which took its place in
Article 27 of the Charter of the United Nations. According to this article each member has on
vote[27(1)]. The decisions of the Council on procedural matters shall be made by an affirmative
vote of nine members [27(2)].249 On all other matters (non-procedural or substantive) the
decisions shall be made by an affirmative votes of nine members, but it must also include the
concurring votes of the permanent members[27(3)]. The proviso to this clause says that in cases
where decisions are to be made with regard to Chapter VI, i.e., pacific settlement of disputes; and
under para 3 of Article 52, a party to such dispute shall abstain from voting. The power given to
the permanent members in article 27(3) is called as power of veto. The word ‘concurring’
signifies that all the permanent members must accept the motion which needs to be carried out.
Therefore, if a permanent member on substantive or non-procedural question says ‘no’, the
motion gets dismissed. After adoption of this provision a further controversy arose as to what is
the distinction between procedural and non-procedural matters. It was resolved partially in the
San Francisco conference. The Statements made by the four sponsoring governments made it
clear that for determining whether a specific matter falls under the category of procedural or non-
procedural matter, the principle of unanimity has to be applied.250 In other words, a preliminary
246
Dwight E. Lee, “The Genesis of the Veto”, International Organization, 1(1) (1947), University of
Wisconsin Press, available at < http://www.jstor.org/stable/2703517 >, last seen on 30th July 2014.
247
B. Simma(ed.) “ Charter of the United Nations: A Commentary”, 435 (1995).
248
Ibid.
249
Original requirement was that of 7 votes. But after an amendment in 1965 which came into force in
1966 the total membership of Security council was increased from 11 to 15, while the permanent
membership remained the same.
250
“The San Francisco Conference: A Short Summary of the Proceedings”, Bulletin of International
News, 22(13) (1945), Royal Institute of International Affairs, available at <
http://www.jstor.org/stable/25643833 .> last seen on 30th July 2014.
P a g e | 79
question is a substantive or non-procedural matter which may become null by a veto of

permanent member. Such a practice is called double-veto.
2. THE CONCEPT OF VETO
Veto is a Latin word which means “I prohibit”, or “I oppose”.251 It was used in the ancient Rome
to oppose decrees by Administrative and judicial bodies.252 Veto, according to Baily and Daws,
means the failure of Security Council to adopt a resolution due to the negative vote of any
permanent member.253 However, it must be noted that, not all the negative votes are counted as
vetoes. When there is a majority of 9 votes to 15 and a permanent member casts its negative vote
it will be called veto. But if a resolution falls short of the required majority including the
negative votes of the permanent members, then the negative votes of the permanent member(s)
will not be treated as a veto.254
The insertion of the provision of veto resulted into decline of many resolutions which needed
attention. In the early decades of the functioning of the Security Council, the USSR had
repeatedly used the power of veto. But after the end of Cold war, the use of Veto declined
significantly.255 The permanent members contemplated it to be essential for the functioning of
the Security Council but is has in fact created a situation of inability and ineffectiveness. 256 The
sponsoring governments at the San Francisco conference in their statements, however,
contemplated that the permanent members would not use their veto power wilfully to obstruct
the operation of the Council.257
The big five in this conference also ensured that the veto should also apply to the proposal made
under Chapter VI.258 The big five justified the same by way of “chain of events” theory.259 They
251
R. Kolb, “An introduction to the law of United Nations”, 135 (2010).
252
Ibid.
253
Baily and Daws, “The Procedure of the UN Security Council”,227, (3rd Ed. 1998).
254
255
Infra note 13 at p. 241.
256
Sushil Chandra Singh, “The Veto Problem in The U.N.”, 19(2) The Indian Journal of Political
Science,( 1958), available at < http://www.jstor.org/stable/42743587 >, last seen on 30th July 2014.
257
Supra note 5.
258
Klabbers and Wallendahl (eds.), “Research Handbook on the Law of International Organisations”
240.
259
Ibid.
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stated that any pacific measures “may initiate a chain of events which might in the end require
the Council, under its responsibilities, to invoke measures of enforcement.”260
DOUBLE VETO
Article 27 contains no specific provision to distinguish between procedural and non-procedural

matters. It is only by San Francisco Declaration an issue has to be determined as procedural or
substantive matter. But this preliminary question is again a matter of substance as contemplated
in San Francisco declaration, thereby allowing the permanent members to use their power of veto
twice- firstly, in the preliminary question and secondly, in the draft resolution. This power is
often called as double veto.
The Czechoslovak Question can be taken as an example to illustrate the power of double veto. A
resolution was introduced under article 29 of the Charter to appoint a sub-committee to
investigate and collect evidence and also hear the testimony and evidence and submit its report to
the Council as quickly as possible.261 The Soviet Union objected saying that the matter was one
falling under Article 34 of the charter, therefore, a substantive matter being an investigation. On
the other hand the US and the UK averred that it was nothing more than a procedure as it falls
under Article 29 to form a subsidiary organ.262 The preliminary question was put to vote and 8
votes were cast in favour while two against including Soviet Union. The President thus
interpreted the matter to be substantive. This ruling was objected by four members and it was
again put to vote in accordance with Rule 30 of the Rules of Procedure. However, it did not
acquire the requisite simple majority thereby resulting into validity of the president’s ruling. In
the main issue, the Soviet Union again vetoed against the motion thereby causing non-adoption
of the resolution.263
There are certain restrictions to the use of double veto also. Under rule 30 of the Rules of
Procedure of Security Council, a president’s ruling may be overruled by a simple majority.
260
Supra note 5.
261
Marion K. Kellogg, “The Laos Question: Double What Veto?”, 45(8) Virginia Law Review, (1959),
available at < http://www.jstor.org/stable/1070683 .>, last seenon 30th July 2014.
262
Ibid.
263
Ibid.
P a g e | 81
Therefore, it follows that president’s ruling on preliminary question must be supported by a

majority of members.
Rule 40 states that votes must be put according to the Charter. Therefore, if any matter which is
clearly a matter of procedure has put to vote in preliminary question, it violates the Charter.264
UNITING FOR PEACE RESOLUTION
By looking at the deadlocks in decision making by the Security Council in matters of grave
concern and abusive use of veto the permanent members of the council the general assembly in
year 1950 passed resolution 377(V) A called as Uniting for Peace resolution. It recognises the
purpose of United Nations to maintain international peace and collective security, and also
asserts that permanent members should try to limit the use of veto power.
According to this resolution, if the Security Council has failed to fulfil its primary duty as stated
above owing to lack of unanimity in cases where it appears that there is a threat to peace or its
breach or act of aggression, the general assembly shall consider the matter immediately in order
to make recommendations to members for collective security including use of force to maintain
or restore international peace and security.265 This resolution also provides for an emergency
session when the Assembly is not in session, at the request of Security Council by a Simple
Majority of seven votes, or by a majority of members of General Assembly.266
This is a landmark step taken by General Assembly to ensure International Peace and Security in
the instances where the Security Council is unable to do so due to the Veto problem.
3. PROCEDURAL AND OTHER MATTERS
PROCEDURAL MATTERS UNDER CHAPTER V
The nomenclature of Sub section of Chapter V is “procedure” which runs through Article 28 to
32.
264
265
GA RES 377(V), 3rd November 1950.
266
Ibid.
P a g e | 82
There are certain matters, which are not covered under Chapter V but can be construed as
procedural matters like hearing claims and disputes.267
The council has treated following matters as procedural:268
Inclusion of Items in Agenda

Order of Items
Deferment of consideration of items
Removal of an item from the list of matters of which council is seized
Rulings of the President
Suspension of a meeting
Invitation to participate
Adjournment of a meeting
Conduct of business
Convocation of an emergency special session of the General Assembly
NON-PROCEDURAL MATTERS UNDER CHAPTERS VI AND VII
Findings and recommendations under chapters VI and VII are treated as non-procedural matters
even though they prescribe certain procedures for settling of disputes.269 Council’s decision to
undertake investigation under Article 34 is a matter of substance.270
There are, however, other matters which are essentially matters of substance. Some of them are
as follows:271
The admission of new members.

The suspension of exercise of membership rights.
The expulsion of members
The execution of judgements rendered by the ICJ pursuant to Article 94
The request for an advisory opinion of ICJ pursuant to Article 96(1)
267
supra note 2 at p. 437.
268
269
270
Ibid.
271
Ibid.
P a g e | 83
Recommendation for appointment of Secretary General.
Another step to enlist procedural matters was taken by General Assembly by setting up an
Interim Committee in 1947. This committee reported back to General Assembly enlisting certain
procedural matters, out of which most of the matters were recommended to Security Council by
Assembly in 1949. The Report of the Interim committee contained following groups of
procedural matters:
Decisions adopted in pursuance of the provisions falling under the heading procedure.
Decisions relating to relation between Council and other UN organs.
Decisions concerning internal functioning and conduct of business of the Council.
Decisions in analogous cases
Decisions which are important to conclude or follow a procedural decision.
Despite the effort of General Assembly, the recommendations were devalued by 6 votes against
it, including that of Soviet Union.272
4. VOLUNTARY ABSTENTION AND ABSENCE
Two kinds of abstentions can be found in the Security Council, namely, Obligatory abstention
under Article 27(3) and Voluntary abstention. The obligatory abstention needs no attention as it
is clear from the text of the article that a member shall abstain from voting in the given
circumstances. It is voluntary abstention which has been the matter of controversy and needs
some focus. During the course of negotiations in the San Francisco Conference, the issue of
voluntary abstention was raised, however, there was no resolve offered by the sponsoring
272
Ibid.
P a g e | 84
governments. However, looking at the practices of the Security Council, it can be deduced that
abstention from voting is not equivalent to veto or negative vote.273
The First Case of voluntary abstention was the Spanish Question. In this case, Australia proposed
appointment of a sub-committee. Soviet Union abstained and expressed that: “bearing in mind,
in this connection, that my voting against the Australian draft resolution would make its adoption
impossible, I shall abstain from voting.”
He also added that this shall not become a precedent. However, this practice was soon followed
by many states.
According to one view, absence must be treated as a negative vote. However, Advisory opinion
of ICJ in Namibia Case holds the view that such a presumption which will paralyse the Security
Council cannot be entertained.
Non-Participation
It means that a member has taken part in the session but did not cast its vote. Australia was the
first member to not participate in the voting in 1946 followed by UK in 1947 and it has been
repeatedly used by China.274
This is a case of implied abstention as a member with his silence demonstrates that he neither
wishes to vote in favour nor in against.275
Abstention may also be seen through absence. It may be deliberate or involuntary absence. 276A
representative may fail to reach to the session because of inevitable circumstances or to
demonstrate a protest.277 The Soviet Union was absent during the meetings on the Iranian
Complaint in 1946 to boycott the matter. The council took several decisions without Soviet
273
Yuen-Li Liang, “ Abstention and Absence of a Permanent Member in Relation to the Voting Procedure
in the Security Council”, 44(4) The American Journal of International Law, (1950) available at
<http://www.jstor.org/stable/2194987 > last seen on 30th July 2014.
274
275
Ibid.
276
Ibid.
277
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Union. It is generally believed that absence by a permanent member does not invalidate the
proceedings of Security Council.278
5. CONCLUSION
After having perusal at voting procedure of the Security Council on thing can be easily stated
that the responsibility given to the big five is exaggerated. These permanent members have many
times put their own vital interests over others’. A single negative vote can change the protection
scenario. There is a strong need for reform in the voting procedure of the council especially
concerning veto power. It has been many times advocated by many countries and even during
San Francisco Conference that the Power of Veto Should be restricted to only certain matters
such as admission of a new member. In the report of the “High Level Panel on Threats,
Challenges, and Change: A More Secure World: Our Shared Responsibility”, (2004), indicative
voting is proposed under which the council can call for public indication of positions on a
proposal. Under this system “no” votes will not be counted as veto and the final tally of votes
will not have any legal bearing. The second round of voting will be done according to present
procedure. This kind of system increases accountability. Apart from increasing permanent
membership, the Security Council should also increase the minimum number of veto
requirement to reject a proposal rather than sticking with just one veto rejection phenomenon.
ADULTERY AS A GROUND OF DIVORCE: RECENT TRENDS

KESHAV PAREKH279
278
Ibid.
279
3RD Year, WBNUJS Kolkata.
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INTRODUCTION
Adultery is a grave offence which is recognised in matrimonial law as well as criminal law in
India. This offence seriously harms the conjugal relationship between the spouses. As a result,
the law also recognises adultery as an offence and allows relief to the aggrieved party. Under,
majority of personal laws in the country, a spouse can plead judicial separation or divorce if his
or her counterpart has committed adultery.
The language of adultery clause is different in various personal law statutes in India but
essentially they imply identical meaning. Adultery is a ground for matrimonial relief under
Hindu Marriage Act, 1955 (hereinafter HMA) {Section 13(1)(i) and Section 10(1)}; Special
Marriage Act, 1954 (hereinafter SMA) {Section 27 (1)(a) and Section 23}; Parsi Marriage and
Divorce Act, 1936 {Section 32(d) and Section 34}; Indian Divorce Act, 1869 {Section 10(i) and
Section 22}. Adultery is also defined under Section 497280 of Indian Penal Code, 1860. Under
Muslim Law, adultery has not been given directly but this ground can be implied from cruelty.
Within cruelty one such instance is “when husband associates with women of evil repute or
leads an infamous life.”281
In this paper, the scope is limited to study of Adultery under personal law only. The paper shall
attempt to focus on the meaning and essentials of adultery, standard of proof required. Later, the
change in position of law regarding the concept and factors which court considers while granting
matrimonial relief on the ground of adultery is analysed. Finally, conclusion is given.
MEANING OF ADULTERY
Though the phraseology is distinct under different personal law statutes but the meaning of
adultery is very similar. This term has not been defined under any statute in India, but in a partial
manner under Hindu Marriage Act, 1955 and Special Marriage Act, 1954. Section 13(1)(i)282 of
HMA refers adultery as “voluntary sexual intercourse with any person other than spouse.”
280
S. 497, Indian Penal Code, 1860 provides, “Adultery- Whoever has sexual intercourse with a person
who is and whom he knows or has reason to believe to be the wife of another man, without the consent or
connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the
offence of adultery, and shall be punished with imprisonment of either description for a term which may
extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an
abettor.”
281
S. 2(viii) (b), The Dissolution of Muslim Marriage Act, 1939
282
Hindu Marriage Act, 1955.
P a g e | 87
Lately defines adultery as “willing sexual intercourse between a husband or wife and one of the
opposite sex while the marriage subsists.”283 It is to be noted that the meaning of the term is
almost similar under Indian law and English law. From the definition of adultery, the following
PRE-REQUISITES OF ADULTERY are gathered:
1) Post Marriage Lapse

To constitute the offence of adultery under matrimonial as well as criminal law, the marriage
must be subsisting since this offence is against marriage.284 In other words, in order to claim
relief there must be a post- marriage lapse.285 So, a sexual intercourse prior to marriage will not
constitute adultery.286 In Elam Plakkat Mathew v. Mulam Kothrayil287 a Christian husband
pleaded divorce on the ground of adultery as his wife was pregnant at the time of marriage. It
was ruled that this could be an instance of fraud not of adultery, because pre-marital sex never
amounts to adultery.
2) SEXUAL INTERCOURSE
There must be a sexual intercourse between the respondent husband or wife with another
person.288 The question what would amount to sexual intercourse within the meaning of adultery
has been addressed differently in various cases under Indian and English Law. In order to
constitute adultery, there must be some penetration though full sexual intercourse is not
mandatory.289 So, an attempt to have an intercourse will not lead to adultery.290 Also, indecent
familiarities which are capable of providing sexual satisfaction to parties will not constitute the
offence.291 Further, mere intimacy need not mean adultery.292 In Oxford v. Oxford293 a Canadian
283
LATEY ON DIVORCE, 102.
284
KUSUM, FAMILY LAW LECTURES FAMILY LAW, I 52 (2013).
285 Id.
286
Arokia Raj Morais v. Babita Maria, (2006) 2 MLJ 537.
287
Elam Plakkat Mathew v. Mulam Kothrayil, AIR 1999 Ker 354.
288
MULLA, HINDU LAW, 906 (Satyajeet A Desai ed., 2010).
289
Dennis v. Dennis, (1955) 2 All ER 51.
290
Subramma v. Sarswathi; (1966) 2 MLJ 263.
291
Redpath v. Redpath, (1950) 1 All ER 600.
292
Changamunga v. Lianpuri, AIR 1988 Gau 53.
293
Oxford v. Oxford 58 DLR 251 (1921); 49 Ontario LR 15.
P a g e | 88
Court judgement, the court held that artificial insemination by a wife without the consent of the
husband would amount to adultery294, but this view has not been accepted universally.
3) Voluntary Act
The sexual intercourse must be voluntary in nature or in other words must be with the consent of
respondent husband or wife. Further, the parties must be competent to give consent to such
intercourse. It implies that whenever a person lacks capacity to consent for instance a person of
unsound mind or a minor then the act of sexual intercourse will not be voluntary.295 In cases
where wife is raped then it cannot be said to be a case of adultery as consent was not given
freely.296 Further, if the woman was involuntarily intoxicated, then she had an intercourse then
she has not committed adultery297 but if she voluntarily and knowingly gets intoxicated and had
an intercourse then she is guilty of adultery.298 A man who is forced to have sexual intercourse
other than his spouse then it is not adultery provided that the man can prove that he was forced
which rarely happens.
These three are the essential ingredients of offence of adultery. Each of the elements needs to be
there in order to constitute adultery.
ADULTERY: DIFFERENCE BETWEEN CRIMINAL AND MATRIMONIAL OFFENCE
Under criminal law, adultery can be done by a male only not a female. Here, the intention of the
husband is to target the third person i.e. the adulterer not the wife.299 But in personal law, when a
matrimonial relief (either divorce or judicial separation) is pleaded then the main target is the
spouse not the adulterer. Unlike in criminal law, adultery can be committed by both a male and a
female in personal law. 300Apart from these aspects, the offence is similar under both the laws. It
implies that the definition of adultery in criminal cannot be applied in personal law.
294 Id.
295
S. v. S., (1962) 1 WLR 445.
296
Rajesh Kumar Singh v. Rekha Singh, AIR 2005 All 16.
297
Gushawk v. Gushawk, (1965) 109 SJ 290.
298 Id.
299
PARAS DIWAN, LAW OF MARRIAGE AND DIVORCE, 378 (2011).
300 Id.
P a g e | 89
LEGISLATIVE CHANGES
It must be noted that the provisions regarding this concept had been changed over the past few
years. This aspect can be analysed into two parts:
1) ANALYSIS OF MARRIAGE LAWS (AMENDMENT) ACT, 1976

Prior to amendment, the offence of adultery was classified into two categories. Under one
category only judicial separation was granted on the other hand divorce was granted because it
was more serious than the other. To claim judicial separation only a single act of sexual
intercourse was necessary on the part of respondent.301 But the respondent must be “living in
adultery” only then the petitioner can be granted a decree of divorce. The term “living in
adultery” has a wider meaning.302 It implies that divorce cannot be granted if the respondent was
not living in adultery at the time of filing of suit or even if the respondent “was living in
adultery” at some time in that case also divorce cannot be given as a matrimonial relief.303 Later,
it was realised that even a single act of sexual intercourse has the capacity to destroy mutual faith
and regard between husband and wife, therefore courts started giving relief of divorce if
petitioner wants it. As a result, Section 13 of Hindu Marriage Act, 1955 and Section 27 of
Special Marriage Act, 1954 were amended by The Marriage Laws (Amendment) Act, 1976.
Now the present position of law is that a single act of voluntary sexual intercourse with another
person other than spouse will constitute adultery.304
2) ANALYSIS OF THE INDIAN DIVORCE (AMENDMENT) ACT, 2001

Prior to this amendment, a husband is granted relief of divorce if his wife engages in a single act
305
of voluntary sexual intercourse with some other person. The husband could even claim
damages from the adulterer. In B.K. Ghosh v. Arpana306 the husband was granted divorce against
the adultery of his wife and damages were given to him from co-respondent ex-parte. The same
ground was not available to wife; her plea of adultery has to be supported by bigamy, desertion
301
MAYNE’S TREATISE ON HINDU LAW AND USAGE, 250 (J. Ranganath Misra ed., 2003).
302 Id.
303
Devyani v. Kantilal, AIR 1969 Bom 98.
304
Amita v. A.K. Rathore, (2000) 1 HLR 588 (MP).
305
S.10, The Indian Divorce Act, 1869,
306
AIR 1982 Cal 360.
P a g e | 90
or cruelty.307 As a result, the wife was unable to get rid of husband even if he was living in
adultery. She was given decree of judicial separation only in that case.
Later, the act was amended in 2001 which entitled both wife and husband to plead either divorce
or judicial separation when either spouse has committed adultery. Also, it became mandatory to
make adulterer as a co-respondent. Further, the amendment deleted the provision that allowed
husband to claim compensation from the adulterer.
PROOF OF ADULTERY
The onus of proving adultery is always upon the petitioner i.e. the person who asserts the fact.
Due to the nature of the offence, direct proof of adultery is exceptional.308 In cases when direct
proof is submitted, the court would have some doubt about the authenticity of such evidence as it
is highly doubtful that a person is witness of such act which is done secretly. The direct evidence
must be supported by some other evidence.309 Proof of a single act of adultery is sufficient.310 If
wife was ex parte, even then divorce cannot be granted as adultery must be proved.311 This
offence can be proved by following ways:-
1) CIRCUMSTANTIAL EVIDENCE
Circumstantial evidence is a good proof of adultery.312 When a husband is found with a woman
other than his wife in a room at night is sufficient to infer adultery.313 The evidence of
opportunity can also imply that adultery has been committed so as it would lead a reasonable
prudent man to believe that such offence is occurred.314 Under English law, it was held that the
circumstance is such that the woman is found to be virgin is not enough to prove that adultery
has not been committed. There can be partial intercourse which may constitute adultery.315
Further circumstantial evidence must be of such nature so that it would only lead to the
307
S.10, The Indian Divorce Act, 1869.
308
Sita Devi v. Gopal Sharan, AIR 1928 Pat 375.
309
S.I. Davidson v. Norah, (1921) 62 IC 782.
310
Rajendra v. Sharda, AIR 1993 MP 142.
311
Mathew Vijaykumar v. Bhanusundari, AIR 1965 Mad 166.
312
Sanjukta v. Laxminarayan, AIR 1991 Ori 39.
313
Woolf v. Woolf, (1931) p. 134.
314
Felix Edward Gayer v. M.M. Gayer, ILR (1947) Lah 867 (FB).
315
Thompson v. Thompson, (1938) 2 All ER 359.
P a g e | 91
conclusion that the offence is committed. In N.G. Dastane v. S. Dastane316 the apex court held
that the fault grounds of divorce can be proved by balance of probabilities and it need not to be
proved beyond reasonable doubts.
2) EVIDENCE OF NON-ACCESS
The evidence of non- access requires a strict proof. The fact that husband and wife are living at
different places is not an evidence of non-access. If a wife gives birth to a child when there is a
valid marriage subsisting and the husband failed to give evidence of non-access then the claim of
adultery on ground of illegitimacy cannot succeed.317 In this context, Section 112 of Indian
Evidence Act, 1872 is relevant. This section provides proof regarding legitimacy of child unless
the spouses had no-access to each other. The term access must be read with reference to
“opportunity to procreate” rather than “opportunity for sexual intercourse.”318
3) CONTRACTING VENEREAL DISEASE

In Jose v. Jose319 the evidence of getting venereal disease by any spouse from some other person
is a strong evidence of adultery. The onus is upon the respondent that he/she contracted the
disease accidently rather than as a result of committing adultery.320
4) VISITS TO BROTHELS
In case where either is noticed that he or she visits brothels, then it is strong evidence that
adultery might be committed unless declined by any other fact.321
5) CONFESSIONS AND ADMISSIONS

Under personal law, the court will not be willing to grant divorce solely on the basis of
confession or admission of respondent or co-respondent.322 The reason is that the parties may be
having collusion between them and respondent admits guilt for this reason. But, nothing shall
316
AIR 1975 SC 1534.
317
Partap v. Veena, (1997) 2 DMC 626.
318
Chandramathi v. Pazhetti Balan, AIR 1982 Ker 68.
319
AIR 1930 Lah 824.
320
Butler v. Butler, 1917 p. 244.
321
Supra 20 at 388.
322
Bai Kanku v. Shiv Toya, (1892) 17 Bom 624.
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prohibit the court to act upon such admission but such admission must be corroborated.323 The
fact that confession was given for the objective of having petitioner’s forgiveness is
admissible.324
6) PREPONDERANCE OF PROBABILITIES
Adultery may be proved by preponderance of probabilities and need not be proved beyond
reasonable doubts unlike in criminal law. Where it was noted that wife was having an affair and
had written letters and also had opportunity to do sexual intercourse, it was held that wife has
done offence amounting to adultery.325
ADULTERER AS CO-RESPONDENT
Section 11 of The Indian Divorce Act, 1869 provides that adulterer must be made co-
respondent326 but such provision is not there in any of the other acts. However, most High Courts
have made rules with respect to essential parties in a petition and such rules mandates adulterer
to be made co-respondent in accordance with the powers conferred by Section 14 & 21 of Hindu
Marriage Act and Section 41 of Special Marriage Act.327
In Sikha Singh v. Dina Chakrabarty328 the wife pleaded divorce on the ground of adultery and
made adulteress as co-respondent and also claimed damages from her. The co-respondent
pleaded that there was no stipulation under Special Marriage Act for such joinder and filed an
application for quashing her name under Order 1 Rule 10 of Code of Civil Procedure, 1908. She
further argued that Rule 10 mandates adulterer to be made co-respondent not the adulteress. The
court rejected her argument by giving reason that use of masculine gender incorporates feminine
323
Glaney v. Glaney, (1915) 31 IC 264.
324
Collins v. Collins, 27 Dib 300.
325
Sunita Singh v. Raj Bahadur Singh, AIR 1999 All 69.
326
S.11, Indian Divorce Act, 1869 provides, “Adulterer to be co- respondent- Upon any such petition
presented by a husband, the petitioner shall make the alleged adulterer a co- respondent to the said
petition, unless he is excused from so doing on one of the following grounds, to be allowed by the Court:-
(1) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with
whom the adultery has been committed;
(2) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts
to discover it;
(3) that the alleged adulterer is dead.”
327
Supra 5, at 53.
328
AIR 1982 Cal 370.
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gender also as per General Clauses Act, 1897.329 In MV Ramana v. M. Peddiraju330 the
husband’s petition for divorce was dismissed because the co-adulterer was not made co-
respondent in the petition. Where wife admitted adultery but the adulterer was not made co-
respondent the husband’s petition for divorce was dismissed.331
If the adulterer’s name, identity and address are unknown despite there being reasonable efforts
by the petitioner to do so, the court can exempt that mandate on an application filed by petitioner
supported by an affidavit.332 Further, if adulterer dies during the suit then it is not necessary that
his/her heir should be brought on record.333 Finally, it must be noted that the principle behind
making adulterer as a co-respondent is based on public policy in order to prevent collusion.334
CONSIDERATIONS IN GRANTING RELIEF

Dissolution of marriage is a serious act and has several consequences which affect not only the
spouses but also the children, family and society. Hence it is obligation on the part of court to
exercise utmost care and prudence while granting matrimonial relief. The court must examine
whether all the essentials regarding a ground of matrimonial relief are present. The court has to
figure out that there is no collusion, condonation, connivance or undue delay in filing the
petition.335 To constitute condonation two essentials must be there which are forgiveness and
restoration.
In Clarence v. Raicheal336 the wife told her husband on the first night of marriage that she loves
someone else. The husband sends her wife to parental home and later allowed her to marry with
her lover. After 15 years he pleaded divorce on the ground of adultery as admitted by her wife.
The court discarded the relief by stating connivance and undue delay in filing the suit as a
reason. However, when the welfare of children is involved then the ground of delay in filing
329 Id.
330
AIR 2000 AP 328.
331
Romesh Praucis v. Violet Francis, AIR 1989 Cal 128.
332
Willan Percy Bowman v. Harriet Dorothy Bowman, AIR 1942 All 223.
333
Soya v. A.K. Mohanan, AIR 2006 Ker 56.
334
Supra 5, at 53.
335
Supra 5, at 56.
336
AIR 1964 Mys 67.
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petition can be relaxed. This was seen in Adelaide v. William337 where wife filed petition 26
years after adultery and desertion arose. In that case the court ignored the delay because the wife
had two daughters and a son and she was concerned about her children and their mental
upbringing so she thought of not having the divorce at that time.338 While granting relief the
court takes into account the cumulative effect of circumstances and all the factors to give justice.
In Nalini v. C.H. Isaac339 the wife was given decree of divorce on account of her husband’s
adultery even though she herself was engaged in adultery. The court gave reason that it would
not be correct to condemn four persons living in adultery nor would be welfare of children, so
divorce was granted.340
However, this is no hard and fast rule. It is also necessary that when seeking relief under fault
grounds of divorce the petitioner must come with clean hands or in other words he must not be in
pari delicto. The consideration while granting relief depends upon a number of factors such as
“position and interest of children, prospects of future marriage, possibility of reconciliation and
interest of community at large.”341
CONCLUSION
Adultery is a ground for both divorce and judicial separation. The law regarding the concept of
adultery has been changed over a past few years. Earlier it was difficult to have decree of divorce
even when adultery has been committed by a spouse. But, now law has undergone change which
entitles petitioner to have divorce when a single act of adultery has been committed. Adultery as
defined in Indian Penal Code has no relevance in personal law.
The standard of proof has a huge significance with respect to adultery. Adultery can be proved
by balance of probabilities rather than proving it beyond all reasonable doubts like in criminal
law. The direct evidence of adultery is very rare owing to its nature. Now, the courts have come
to conclusion that adultery can be proved mainly through circumstantial evidence. The other
337
AIR 1968 Cal 133.
338 Id.
339
AIR 1977 MP 267.
340 Id.
341
Supra 5, at 57.
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methods of establishing the offence can be evidence of non- access, visit of a spouse to brothels,
contracting of venereal disease by a spouse, confessions and admissions etc. Before giving relief
to aggrieved party the court also takes into account numerous factors such as connivance, the
time period within which petition was filed, condonation, requirement that adulterer to be made
co-respondent etc. In order to claim matrimonial relief on the fault grounds of divorce such as
adultery, cruelty, desertion and so on, it is necessary that petitioner shall approach the court with
clean hands or in other words he must not be guilty of an offence which could bar relief to the
party. Finally, the objective of paper was to give the present position of law regarding adultery
and enhance more conceptual clarity in the light of changing circumstances.
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INTERPRETATION OF ‘CONTROL’ UNDER VARIOUS COMMERCIAL LAWS IN

INDIA
APOORV CHATURVEDI342 AND KARAN TIBREWAL343
ABSTRACT
“Control” is an important concept in the field of commercial and corporate laws. However, due
to implementation of various parallel and sometimes contradictory provisions by the various
regulatory bodies and statutes acting in India, an ambiguity and uncertainty in regards with the
meaning of the term “control” has come into existence. This article throws light upon the stand
taken by the different regulatory bodies and statutes in regards with its meaning and its
implications on commercial transactions. The ambiguity under the regulations must be
addressed by laying down guidelines regarding veto rights which would not amount to control. It
will help in addressing the concerns of the investor, will protect their investment and build their
confidence to invest in India.
INTRODUCTION
In general, the term “control”, in terms of commercial and company laws can be defined as the
ability of a stakeholder to have a clout on the matters related to the management and policies of
the company. This “control” might be applicable in issues pertaining to rights of the
shareholders, voting rights, appointment of directors etc.
Having a multi-regulatory regime in India, where each regulator is implementing parallel

regulatory measures, the term “control” in India, has been used in a different way by each
regulatory body (and sometimes differently by the same regulatory body, for example, SEBI).
This lack of coordination which has produced more than one definition and understanding of
“control” has led to uncertainty and ambiguity in the corporate world which in turn results in
delay and confusions in transactions.
The term “control has been brought up and discussed under various legislations, regulations,
amendments and polices, including the Companies Act, 2013, SEBI regulations, FDI policy,
Competition Act, 2002 etc. This article will examine the various definitions of ‘control’ under
different legislations and regulatory bodies. It will also assess the implications of each definition
and will also highlight one of the most important cases in this regard i.e. Jet-Etihad Case.
342
4th Year, JGLS Sonipat (Haryana).
343
4th Year, JGLS Sonipat (Haryana).
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CONTROL UNDER THE COMPANIES ACT, 2013
Companies Act, 2013 can be regarded as the most basic piece of legislation that governs the
matters related to a company from its formation to liquidation. Section 2(27) of the Companies
Act, 2013 states that “control” shall include “the rights to appoint majority of the directors or to
control the management or policy decisions exercisable by a person or persons acting
individually or in concert, directly or indirectly, including by virtue of their shareholding or
management rights or shareholders agreement or voting agreements or in any other manner”344.
It has to be noted that the definition of “control” was not there in the Companies Act, 1956 and is
exactly similar to the definition mentioned under SEBI (Substantial Acquisition of Shares and
Takeovers) Regulations, 1997.
Section 2(87) of the Act defines “subsidiary company” as a company in which the holding
company controls the composition of the Board of Directors or controls more than half of the
total share capital either at its own or together with one or more subsidiary companies 345. The
explanation also states that the composition of the Board of Directors would be deemed to be
controlled by another company when that company has the power to appoint or remove the
majority of the directors of the subsidiary company.
Section 216 states that the investigation can be done of the ownership of a company for the
purpose of determining the true persons, who have been able to control or materially influence
the policy of the company346.
Thus, unlike the 1956 Act which did not contain the definition of ‘control’, the definition
provided under Section 2(27) of the 2013 Act helps in interpreting the meaning of “control”
uniformly throughout the Act and need not require different interpretations for different sections.
CONTROL UNDER COMPETITION LAW
The word ‘control’ is essential in the competition law regime. The Monopolies and Restrictive
Trade Practices (MRTP) Act 1969 which was succeeded by the Competition Act 2002 used the
term ‘control’ to define various other terms. It was used to define terms such as ‘group’,
‘associated person’ and ‘interconnected undertakings’347.
Under this Act, the term ‘control’ was defined in such a way to mean a position which is held by
a person, directly or indirectly, even if he does not have a controlling interest, to control the
policy of another person.
The term ‘control’ under the MRTP Act 1969 was interpreted in a way to aid the classification of
companies under the same management and companies that were part of the same group or
344
Section 2(27), The Companies Act, 2013
345
Section 2(87), The Companies Act, 2013
346
Section 216, The Companies Act, 2013
347
Section 2, The Monopolies and Restrictive Trade Practices Act, 1969
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interconnected undertakings or associated companies. The Act’s objective was to monitor the
monopolistic and restrictive trade practices followed by such entities.
The Competition Act 2002 was implemented to provide a regulatory framework to assess the
effects of mergers, acquisition, amalgamation or any other form of combination on the
competitive market in India. The 2002 Act defines ‘acquisition’ as directly or indirectly
acquiring or agreeing to acquire:
i) Shares, voting rights or assets of any enterprise; or
ii) Control over management or control over assets of any enterprise348.
Combination under the Act is defined by following thresholds regarding the assets of the
acquired company when applies, would require filing a merger notification to the CCI. The term
‘control’ includes controlling the affairs or management by:
i) One or more enterprises, either jointly or singly, over another enterprise or group;
ii) One or more groups, either jointly or singly, over another group or enterprise.349
The issue in this regard is that whether this definition would be self-sufficient for a review on a
combination that includes acquisition of control and consequently aid classification of the
adverse anti-competitive effects of the proposed combination. The Act does not facilitate
illustrations which would qualify as control over the affairs or management of a company which
is the anomaly here.
It is important to note here that the term ‘acquisition’ is defined under the Act in a way to include
acquisition of control over management or assets of the company. This interpretation is also
found in the definition of ‘acquirer’ under the SEBI 1997 takeover code. It may mean that the
definition of control appearing under the 1997 code can be referred to when a combination or
merger has to be reviewed under the 2002 Act.
CONTROL UNDER SEBI LAWS AND REGULATIONS
The Securities and Exchange Board of India Act (SEBI), 1992 constituted the regulatory body
SEBI in order “to protect the interests of investors in securities and to promote the development
of, and to regulate securities market”. It is important to note here that the Act itself does not
define the term ‘control’ but various regulations and guidelines implemented under the SEBI
Act, 1992 itself have defined the term ‘control’. There are various SEBI regulations which have
made their own definition of control depending on the specific needs of the regulations.
348
Section 2(a), The Competition Act, 2002
349
Explanation (a) to Section 5, The Competition Act, 2002
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However, the definition given under the SEBI (Substantial Acquisition of Shares and Takeovers)
Regulations 1997 has been generally adopted in various other regulations of the SEBI.
The regulations such as SEBI (buyback of Securities) Regulations 1998, SEBI (Issue of Sweat
Equity) Regulations 2002, SEBI (issue of capital and Disclosure Requirements) Regulations
2009 and the SEBI (Delisting of Equity shares) Regulations 2009 have adopted the same
definition as given in the Takeover code. Since there are various regulations under the SEBI
which have adopted the same definition as given in the takeover code and because the takeover
regulations play a crucial role in the protection of interests of public shareholders, it becomes
necessary to analyse in detail the definition of control under the takeover code and also take into
account the opinion of the court on it.
Regulation 2(1)(e) of the Takeover Code defines control as the right to appoint majority of the
directors or to control the management or policy decisions exercisable by a person or persons
acting individually or in concert, directly or indirectly, including by virtue of their shareholding
or management rights or shareholders agreements or voting agreements or in any other manner:
Provided that a director or officer of a target company shall not be considered to be in control
over such target company, merely by virtue of holding such position350.
Regulation 4 of the takeover code states that irrespective of acquisition or holding of shares or
voting rights in a target company, no acquirer shall acquire, directly or indirectly, control over
such target company unless the acquirer makes a public announcement of an open offer for
acquiring shares of such target company in accordance with these regulations351. With respect to
Regulation 4, the acquisition can be both direct and indirect acquisition of control over
companies and also of listed or unlisted companies. Moreover, the acquisition can be in India as
well as abroad.
The term ‘control’ has been defined under the Takeover Code only in terms of a right. Under the
Code, a person would have control over a company if he has the right to appoint majority
directors and also has the right to exercise control over the management or policy decisions of
the company.
However, the manner in which the control has to be exercised is not clearly specified under the
Code. It provides only illustrations such as shareholding, management rights, shareholders
agreements and voting agreements. These illustrations are not exhaustive in nature.
Consequently, the definition has been subject to various interpretations in decisions of Securities
Appellate Tribunal (SAT) and the SEBI. In the case of Rhodia SA v SEBI, the SAT held that the
acquirer who has veto right over certain matters which has been described by the parties as
350
Regulation 2(1)(e), SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997
351
Regulation 4, SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997
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‘major decisions on structural and strategic changes’ is considered as control under the Code352.
Thus, a right over the major decisions on structural and strategic changes will be considered as
control.
However in the case of Sandeep Save v SEBI, it was held by the SAT that despite the existence
of veto rights in favour of the foreign body corporate, there was no change in control since it had
only two nominee directors on the board of directors of the target company353. Moreover, in Re
NRB Bearings India Ltd, the SEBI did not take into consideration the foreign acquirer’s veto
rights over certain matters such as amendments to the organizational documents, declaration of
dividends, alteration in share capital, entry into joint ventures, and technology transfer. It was
held that there was no change in control of the target company since the foreign acquirer had
only nominal representation on the target company’s board354.
In Subhkam Ventures Private Ltd v SEBI, the SAT observed that every confinement of any
nature in the hands of any person over a listed company cannot result in ‘control’ over the
company. The SAT observed that the term ‘change in control’ under the Takeover Code signifies
a proactive control rather than a reactive control. Proactive control means a control exercised by
the acquirer over the target company commanding them to do what they want it to do.355
On the other hand, if the acquirer exercises power which prevents a company from doing what
the latter wants to do, such power would not be considered as control under the SEBI Takeover
Code. Thus, the SAT held that the veto rights provided to the private equity investor enabling it
to prevent certain decisions in the management of the company would not amount to control if
the positive right to take the decisions does not exist356. This decision has been appealed by the
SEBI to the Supreme Court.
However, the appeal was disposed off (and SEBI decided not to pursue the case any further) in
view of the subsequent developments in the matter, particularly being that the acquirer hadn’t
appointed its director on board as well as it had sold off its certain shareholding in the target
company. The Supreme Court however did not delve into the issue as to what kind of negative
rights in a company would constitute ‘control’. The Supreme Court however stated that the order
of the SAT would not be treated as precedent and thus it appears that the subject has again gone
back to square one as the SAT order in the Subhkam case would not be binding on subsequent
cases and therefore the question of law on this subject matter is open for final adjudication.
352
Rhodia SA v Securities and Exchange Board of India [2001] Appeal No 36/2001 (Securities Appellate
Tribunal, 7/11/2001)
353
Sandeep Save v Securities and Exchange Board of India [2002] Appeal No 22/2002; Application No
17/2002, (Securities Appellate Tribunal, 27/11/2002)
354
In Re NRB Bearings Ltd [2003] SEBI Order No CO/33/TO/05/2003 (29/5/2003)
355
Subhkam Ventures (I) Private Ltd v The Securities and Exchange Board of India [2010]; Appeal No
8/2009 (Securities Appellate Tribunal, 15/1/2010)
356
Supra Note 13
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CONTROL UNDER FDI POLICY
The object of the foreign direct investment policy of India is to increase the foreign investment
and also regulate the amount and usage of the investments that flow in through a supervisory
framework. This will provide transparency, predictability and simplicity as stated in FDI Circular
2015357. The Department of Industrial Policy and Promotion and the Ministry of Commerce and
Industry issue the FDI policy which provides for regulatory framework for investments made by
foreign residents in India. The investment made is generally considered as financial contribution
to the capital of an enterprise or purchase of shares in the enterprise358.
The term ‘control’ is defined under regulation 2.1.7 of the FDI policy (Circular 2015). It is
defined as the right to appoint a majority of the directors or to control the management or policy
decisions including by virtue of their shareholding or management rights or shareholders
agreements or voting agreements359. Moreover, an entity is considered as ‘controlled’ by non-
resident entities, if the non-residents have the power to appoint a majority of its directors.
Regulation 4.1.3 (ii) states that the foreign investment made by an investing company would not
be taken into consideration for calculation of the indirect foreign investment in case of Indian
companies which are ‘owned and controlled’ by resident Indian citizens and/or Indian
companies, which are owned and controlled by resident Indian citizens360.
However, if the investing company is either owned or controlled by non-residents, the entire
investment made by the investing company into the Indian company would be considered as
indirect foreign investment (paragraph 4.1.3(ii) Circular 2015). Therefore, it can be said that the
term ‘control’ is defined in a manner under the FDI regulations to ensure that indirect foreign
investment is taken into consideration for calculation of sectoral caps only in cases where the
majority of the board of the investing company can be appointed by non-resident investor. Thus,
the definition of control under the FDI policy is more or less similar to that of SEBI regulations
but is applied in a narrow manner when compared to the SEBI regulations.
JET-ETIHAD DEAL361
One of the fundamental cases which have explicitly dealt with the issue of control under SEBI
and CCI regulations is the case of Jet-Etihad. Soon after the liberalization of the foreign
investment362 in India, Jet made a public announcement informing the Bombay Stock Exchange
357
Consolidated FDI Policy, Department of Industrial Policy and Promotion, Ministry of Commerce and
Industry Government of India, D/o IPP F. No. 5(1)/2015-FC-1, (12/5/2015), Available at:
http://dipp.nic.in/English/policies/FDI_Circular_2015.pdf Last accessed on 6/11/15.
358
Ibid
359
Ibid
360
Ibid
361
Etihad Airways v SEBI (2014) Order NO WTM/RKA/CFD-DCR/17 (8/5/2014)
362
The Indian Aviation industry was liberalised in September 2012 and allowed 49% FDI.
P a g e | 102
about the investment by Etihad in Jet. Etihad intended to buy a 24% stake in Jet Airways in the
form of 27,263,372 preference shares for USD 379 million.
The whole transaction required various approvals from different regulatory bodies including the
Cabinet Committee on Economic Affairs (CCEA), Foreign Investment Promotion Board (FIPB),
Competition Commission of India (CCI) and Securities and Exchange Board of India (SEBI).
The Foreign Investment Promotion Board (FIPB) and the Cabinet Committee of Economic
Affairs had granted their respective approvals as the whole transaction (deal) was in compliance
with the FDI policy of India. The dispute arose due to jurisdictional clash between the Securities
and Exchange Board of India (SEBI) and the Competition Commission of India (CCI).
Both the regulators, SEBI and CCI, had a bona-fide jurisdiction on the whole transaction and
none was binding over the other.363
The CCI approved of the combination in accordance with the Competition Act, 2002 considering
that Etihad was in a transport business and the requisite approvals like pricing and joint airport
handling had been satisfied.364
The CCI in its order stated:

“It is observed that the Parties have entered into a composite combination comprising inter alia
the IA, SHA and the CCA, with the common/ultimate objective of enhancing their airline
business through joint initiatives. The effect of these agreements including the governance
structure envisaged in the CCA establishes Etihad’s joint control over Jet, more particularly over
the assets and operations of Jet.”
Consequently, SEBI sent a notice to Jet Airways promoters stating that if the combination
established Etihad’s joint control over Jet, Regulation 4 of the SEBI Takeover Regulations was
being violated. Regulation 4 states that “Irrespective of acquisition or holding of shares or voting
rights in a target company, no acquirer shall acquire, directly or indirectly, control over such
target company unless the acquirer makes a public announcement of an open offer for acquiring
such shares of such target company in accordance with these regulations.”365 This implies that an
open offer under regulation 4 was required if control of the combination was being transferred.
The issue was whether the agreement of investment by Etihad airways in Jet Airways resulted in
Etihad obtaining ‘control’ in Jet Airways which will require Etihad to make a mandatory open
offer under SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 (the
Takeover Regulations).
363
Pranshu Paul, Conflicts of jurisdiction between SEBI and other regulators, 7 India Law Journal,
(2014)
364
Ibid
365
Supra Note 8
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SEBI finally gave the order in favour of the transaction and it was held that “control” as defined
under the Competition Act 2002, is broader than the one defined under the SEBI Takeover Code.
Under the transaction, Etihad had the right to nominate only 2 out of the 12 directors. It were the
promoters who had the right to nominate the chairman (who had the casting vote) of the board of
Jet Airways. Moreover, Etihad had no veto or affirmative rights under the transaction. Due to
these terms of the transaction, SEBI held that “control” as defined under the Takeover Code had
not been breached.
The whole case was quickly resolved. However, it has to be noted that such overlapping
jurisdiction and contradictory provisions result in unnecessary delay and hassles in completion of
M&A and other commercial transactions.
ANALYSIS & CONCLUSION
Under all the regulations of different regulatory authorities in India except the Competition Act,
there is at least one parameter which is similar under the definition of “control” i.e. right to
appointment of directors. However, none of the regulations clarify any doubt regarding the
instances which will amount to control over a target company. This has led to different
interpretations of the definition with no consistency in the consequences. The definition of
control particularly under the SEBI Takeover Code needs to be clarified in order to be certain as
to when an investor would be required to make an open offer to the shareholders of the target
company.
It is well settled that an equity investor would claim veto rights in their shareholders agreements
in order to protect their investment. The question which needs to be clarified by SEBI is whether
these veto rights would amount to change in control or not. In this respect, SEBI has tried to deal
with various disputes regarding control over a target company. However, it could not provide a
consistent opinion and departed from its own opinion on various occasions. The case of Subhkam
Ventures Private Ltd v SEBI was one of the landmark cases where SEBI explicitly tried to clarify
the position on control and said that merely having veto rights over certain decisions would not
amount to control and thus, would not trigger the requirement of making an open offer under the
Takeover Code. However, Supreme Court clearly stated that this decision would not be binding
to the subsequent cases and the ambiguity would continue to remain. The Supreme Court itself
did not rule on the issue of negative rights which has left it open for final adjudication. SEBI has
retained the definition of control in the new takeover regulations which has closed any room for
clarity and precision.
The Jet-Etihad case is one of the most recent and landmark cases where SEBI clarified the
conflict between two different regulations. The SEBI held that the definition under the
Competition Act 2002 is wider than the definition under the Takeover Code and would not be a
guiding factor in determining control under the Takeover Code. Thus, while interpreting the
respective statutes, the intent and objective of the statute needs to be considered. This judgment
has at least taken a positive step towards clarification of the ambiguity which remains under the
regulations.
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The definition mentioned under FDI policy is much narrower when compared to SEBI Takeover
Code. Since, the foreign direct investment under the policy is critically dependent on the
definition of control; the definition must be upheld and retained as it is quite clear and
unambiguous.
Even though the ambiguity and uncertainty of definition of control cannot be precisely clarified
with an exhaustive list since it is a matter of subjectivity, it can at least be improved and made
more certain by laying down measures stating the veto rights which would not amount to control
in a specific instance. It will help the law as well as the mergers and acquisitions transactions.
Since the investors outside India are cautious regarding investments, this step would help address
their concerns, protect their investment and build their confidence to invest in India.
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CRITICAL ANALYSIS ON FREEDOM OF ELECTRONIC MEDIA UNDER ARTICLE

19 OF CONSTITUTION OF INDIA
ANISHA REDDY366
Abstract
This paper analyses the freedom of electronic media under Article 19 of Constitution of India.
The main argument raised in this paper is, whether this freedom protected under the above
mentioned Article, requires any new legislation or not? It also aims at reiterating the point that
there is every need to bring up new amendments to the present Information Technology Act,
2000 and other legislations under various Acts, so as to enable the citizens to utilize the freedom
of speech without any hurdles and further to curtail the misuse of internet’s cross-border
possibilities by the militants or extremists or unworthy politicians.
INTRODUCTION
Media is a weapon of communication to reach the pupil of State or Nation or World through free,
diverse and pluralist public debates and an essential tab to keep a check over the power either
vested on the Government or politicians. As India being a developing country, Media is reaching
very close to the public in various forms through News Paper, Electronic Gadgets, Computers,
Tabs etc.367 However, the Government reserves the obligation to protect the interest of Nation
from disclosing the information as sensitive, classified or secretive through certain legislations,
which were framed by the Parliament from time to time to adhere to the constitutional rights in
the interest of justice. However, such expression of speech of every citizen is secured under
Article 19 (1)(A) of Constitution of India and such freedom of speech and expression is
controlled by reasonable restrictions as envisaged under Article 19 (2) of Constitution of India.
366
3rd Year, JGLS Sonipat (Haryana).
367
Manini Chatterjee, Media of the Public Sphere Versus Media of the Marketplace, (Nov-Dec., 2007).
P a g e | 106
In democratic societies, the public debates serve as an essential check on power and they provide
access to information and foster both public and corporate transparency and accountability. The
pluralism and diversity of opinions can ideally find lively and inclusive platforms where
democratic debates thrive in open societies through the Electronic Media to withstand the crisis,
drive and sustain the growth of State or Nation to improve the quality of life of each and every
person in the State or Nation. Thus the wide spread of Electronic Media through social websites
lead to formation of new legislation, which resulted in bringing out “The Information
Technology Act, 2000” and the intervention of Hon’ble Supreme Court in the case of Shreya
Singhal Vs. Union of India while summarizing that the Section 66-A of the said Act, infringes
Article 19(1) and is not saved by Article 19 (2) of the Constitution of India on 24-03-2015,
which clearly proves that the Freedom of Media is really protected under the Constitution.
SCOPE OF SECTION 66-A OF THE INFORMATION TECHNOLOGY ACT, 2000
Section 66-A: Any person who sends, by means of a computer resource or a communication
device, -
(a) Any information that is grossly offensive or has menacing character or

(b) Any information which he knows to be false, but for the purpose of causing
annoyance, inconvenience, danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred or ill-will, persistently by making use of such
computer resource or a communication device,
(c) Any electronic mail or electronic mail message for the purpose of causing
annoyance or inconvenience or to deceive or to mislead the addressee or recipient
about the origin of such messages,
Shall be punishable with imprisonment for a term, which may extend to three years and
with fine.
Explanation: - For the purpose of this section, terms “electronic mail” and “electronic mail
message” means a message or information created or transmitted or received on a computer,
computer system, computer resource or communication device including attachments in text,
images, video and any other electronic record, which may be transmitted with the message.
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The transactions/communications made through electronic gadgets like computers, mobile

phones, tablets etc., and to prevent the misuse of such transactions and punishing such criminals
involved in such an offence are dealt with the Information Technology Act, 2000.368 The
misused transactions/communications dealing with computers and networks or through internet
are treated as cyber crimes.
The prosecution of various persons under the cyber crime especially through Section 66-A of the
Information Technology Act, 2000 by the Authorities, lead to criticism mainly for the reasons
ambiguity in the purpose of section, lack of control over cyber harassment, inequality in legal
implementation, excessive strictness, misuse for vendetta, comparatively harsh magnitudes of
punishment, curb on harmless speech and the Section is open to abuse.
FREEDOM OF MEDIA IN INDIA BEFORE INDEPENDENCE PRIOR TO ENACTMENT OF THE

INFORMATION TECHNOLOGY ACT, 2000:-
During the reign of British in India, the British Government of India from time to time enacted
various media laws viz., (i) Indian Penal Code, 1860 (ii) Telegraphic Act, 1885, (iii) Indian Press
Act, 1910, (iv) the Defence of India Act, 1915, (v) India Press (Emergency) Act, 1931 and (vi)
The Copy Right Act, 1957 and were in vogue to control the freedom of speech as per the whims
369
of the British Government. In the case of Niharendu Dutt Majumdar Vs. The King Emperor ,
the Federal Court opined that the words, as well as the acts, which tend to endanger society, it
has been observed, "differ from time to time in proportion as society is stable or insecure in fact,
or is believed by its reasonable members to be open to assault. In the present day meetings and
processions are held lawful which 150 years ago would have been deemed seditious, and this is
not because the law is weaker or has changed, but because, the times having changed, society is
stronger than before"370
The right of every organized society to protect itself against attempts to overthrow it cannot be
denied; but the attempts, which have seemed grave to one age, may be the subject of ridicule in
368
Sruti Chaganti, Information Technology Act: Danger of Violation of Civil Rights, [Vol 38,No.34], HTTP: //WWW.
JSTOR. ORG/STABLE/4413940 (AUG. 23-29, 2003).
369
Niharendu Dutt Majumdar Vs. The King Emperor, 1942 FCR 38, 1942 MWN 417.
370
Lord Summer in Bowman v. Secular Society, Ltd. [1917] A.C., 406, at p. 466.
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another. Lord Holt was a wise man and a great Judge; but he saw nothing absurd in saying that
no Government could subsist, if men could not be called to account for possessing the people
with an ill opinion of the Government; since it was necessary for every Government that the
people should have a good opinion of it.371 Hence many judicial decisions in particular cases that
were no doubt correct at the time when they were given may well be inapplicable to the
circumstances of today. The time is long past when the mere criticism of governments was
sufficient to constitute sedition, for it is recognized that the right to utter honest and reasonable
criticism is a source of strength to a community rather than a weakness. Criticism of an existing
system of government is not excluded, nor even the expression of a desire for a different system
altogether.
The language of Section 124A of the Indian Penal Code, 1860, if read literally, even with the
explanations attached to it, would suffice to make a surprising number of persons in this country
guilty of sedition; but no one supposes that it is to be read in this literal sense. The language itself
has been adopted from English law, but it is to be remembered that in England the good sense of
jurymen can always correct extravagant interpretations sought to be given by the executive
government or even by Judges themselves; and if in this country that check is absent, or
practically absent, it becomes all the more necessary for the Courts, when a case of this kind
comes before them, to put themselves so far as possible in the place of a jury, and to take a broad
view, without refining overmuch, in applying the general principles which underlie the law of
sedition to the particular facts and circumstances brought to their notice and accordingly, having
regard to the conclusion at which we have arrived with regard to the conviction under sub-
paragraph (e), we are of opinion that the appeal should be allowed and the Appellant acquitted.
FREEDOM OF MEDIA IN INDIA AFTER INDEPENDENCE AND PRIOR TO ENACTMENT OF THE

INFORMATION TECHNOLOGY ACT, 2000:-
The Central Government through Article (19) (1) (A) provided freedom of speech and
expression to its citizens and such freedom of speech and expression shall be within the ambit of
Article 19(2) of Constitution of India.
371
The Queen v. John Tutchin, [1704] 14 How. St. Tr. 1905.
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In the case of Ramesh Thapper vs. State of Madras372, when the Government of Madras banned
the circulation of English Journal “Cross Road”, printed and published at Mumbai, the Supreme
Court held that there can be no doubt that freedom of speech and expression includes freedom of
propagation of ideas and that freedom is ensured by the freedom of circulation. Liberty of
circulation is as essential to that freedom as the liberty of publication and the order of
respondents therein prohibiting the entry and circulation of the petitioner's journal in the State of
Madras was quashed.
In the case of Sakal Papers (P) Limited and others Vs. The Union of India,373 when the matter of
far-reaching importance affecting the freedom of the press is raised in the three petitions,
wherein the constitutionality of the Newspaper (Price and Page) Act, 1956, and the Daily
Newspaper (Price and Page) Order, 1960 is questioned by the petitioners therein and the
Supreme Court held that the Act and the Order were void as they violated Article 19(1) (a) of the
Constitution and were not saved by Article 19(2) of the constitution and the freedom of speech
and expression guaranteed by Article 19(1) (a) included the freedom of the press. For
propagating this idea, a citizen had the right to publish them, to disseminate them and to circulate
them, either by word of mouth or by writing. The right extended not merely to the matter, which
he was entitled to circulate, but also to the volume of circulation. The impugned Act and Order
placed restraints on the latter aspect of the right. But it’s very object the Act was directed against
circulation and thus, interfered with the freedom of speech and expression. Article 19(2) did not
permit the State to abridge this right in the interests of the general public and further held that the
State could not make a law, which directly restricted one guaranteed freedom for securing the
better enjoyment of another freedom. Freedom of speech could not be restricted for the purpose
of regulating the commercial aspect of the activities of newspapers.
Again in the case of Debi Soran and others Vs. The State of Bihar374, when Debi Soran was
found guilty under section 124-A of Indian Penal Code, 1860 and on Appeal, the Hon’ble High
Court of Patna opined that Debi Soren's speech does not do, though some of the criticisms appear
to be ill-informed and couched in crude and impolite language. The general effect of the
speeches is that the Government of Bihar have not done much or enough for the Adibasis;
372
Ramesh Thapper vs. State of Madras, AIR 1950 SC 124.
373
Sakal Papers (P) Limited and others Vs. The Union of India, AIR 1962 SC 305.
374
Debi Soran and others Vs. The State of Bihar, AIR 1954 at 254.
P a g e | 110
therefore, the Adibasis must have a separate Jharkhand. Whether this claim is right or wrong is
not the question at issue before court; but it is clear that the expression of such a claim does not
necessarily bring one within the mischief of Section 124-A or 153-A of Indian Penal Code, 1860.
FREEDOM MEDIA IN INDIA AFTER ENACTMENT OF THE INFORMATION TECHNOLOGY ACT,

2000: -
Media has come to be known as the eyes and the ears of the people. Over the years, it has also
become their brain and tongue."375. Freedom of the Media is an integral part of freedom of
expression and essential requisite of democratic set up. The Media is known as the fourth limb of
a democratic system. Without commenting as to whether it is right or wrong, the journalists
deem it that it is integral part of their function to expose the corruption by public servants etc.
In the case of Tarun J.Tejpal & another Vs. Jayalkshmi Jaitley & another376, the Hon’ble Court
opined that “the petitioner being Managing Director of M/s. Tehelka.com. Ltd., and Director
Editor in Chief of electronic news portal Tehelka.com was the first, who adopted novel method
now popularly known as "Sting Operations". It is not for me to discuss the morality or otherwise
of such operations, which subject is hotly debated. Suffice is to state that Media runs the risk if it
publishes the stories, without proper investigation or where truth is distorted which level
allegations against other persons and allegations are recklessly made. If it is their right, as a part
of freedom of speech to expose the corruption of public officials in public life, it is also their
duty to ensure that the news is based on proper investigation and verification and the publication
is not aimed at what is known as "Sensational Journalism". However, even if what is said is truth
and bonafide, still threat of facing such defamatory action is always there. It is occupational
hazard, when such actions are brought against the author(s). The law is such that all these issues
are to be examined at the stage of evidence”. Despite such cases, the Media achieved in getting
re-opened the Jessica’s case377, which was earlier closed and all the accused were freed due to
lack of evidences, but finally after media and public outcry led to conviction of Haryana
Minister’s son Manu Sharma.
375
‘A Brief Note on Media and Judicial Independence' by Justice P.B. Sawant, former Judge, Supreme Court of
India.
376
Tarun J.Tejpal & another Vs. Jayalkshmi Jaitley & another, (2008) ILR 1 Delhi 35.
377
Siddhartha vashisht @Manu Sharma versus State (NCT of Delhi), AIR 2010 SC 2352.
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In the case of Raja Ram Pal vs. the Hon’ble Lok Sabha Speaker and others378, the news channel
AAJ Tak carried out “Operation Duryodhana”, wherein 11 Members of Lok Sabha accepted cash
for asking questions in the Lok Sabha and later on Investigation Committee was set up headed by
Senior Congress Parliament Member of Lok Sabha found guilty by all 11 MPs and were expelled
from the Lok Sabha by the Speaker and when the same was challenged, the Hon’ble Supreme
Court held that “there is no power of expulsion in the Parliament, either inherent or traceable to
Article 105(3). Expulsion by the House will be possible only if Article 102 or Article 101 is
suitably amended or if a law is made under Article 102(1)(e) enabling the House to expel a
member found unworthy or unfit of continuing as a member. The first question is thus answered
in the affirmative and hold that the action of the two Houses of Parliament, expelling the
petitioners is violative of Articles 101-103 of the Constitution and therefore invalid. Petitioners,
therefore, continue to be Members of Parliament (subject to any action for cessation of their
membership)”. Petitions and transferred cases disposed of accordingly.
In the year 2012, when the Media exposed the failure of suspended Judge and others in not
shaping up the deal with the then CBI Special Court Judge B.Nagamaruthi Sharma to secure bail
to the Former Karnataka Minister Gali Janardhan Reddy, the Central Bureau of Investigation
(CBI) obtained permission from the Hon’ble High Court of Andhra Pradesh to prosecute First
Additional Special Judge for CBI cases T.Pattabhirama Rao, who have mediated along with
another Judge K. Lakshmi Narasimha Rao and later they were suspended by the Andhra Pradesh
Chief Justice for alleged irregularities and the CBI has recovered Rs 2.8 crore from the locker of
the suspended CBI judge's son.
When a number of Private TV channels showing certain screening of the program named as
“India’s Daughter”, which is proposed to be telecasted by the BBC and the NDTV was banned
by the Central Government since the screening contain an interview with one of the convicted
rapists of the Delhi gang rape victim of December, 2012 and these screening visuals of the
convict, who was showing no repentance whatsoever for the monstrous act. Further, the
screening also contained his prejudiced and insulting views regarding women in general and the
victim in particular. The screening of the programmes would be a platform for the convict to use
378
Raja Ram Pal vs. the Hon’ble Lok Sabha Speaker and others, (2007) 3 SCC 184.
P a g e | 112
the media to further his own case, especially when his appeal was against his conviction is sub-
judice and such telecast of programme encourages and provokes violence against women, thus
compromising women's public safety.
The powerful impact of journalism and progressive development of digital media and its unified
effects across the world created anxiety to those in power and the overcoming of restrictions
from government interference by Media through their Journalists in providing a better quality
journalism or sometimes facing criticism from the public as black journalism. The identification
of difference between the quality journalism and black journalism is highly difficult for the
media to decide. Laws, statutory regulation, intimidation, tax fines, highly concentrated
ownership by politicians or others with conflicting interests may limit the freedom to acquire and
access information, or may lead to threats to freedom after expression.
The progressive development of digital media in the recent past, a few arrests were made under
section 66(A) of the Information Technology Act in respect of the persons, who were alleged to
make controversy posts on notable personalities and politicians in the social media treated to be
offensive in nature and the penalties imposed on such offenders were said to be disproportionate
to the offence and there was misuse of the legislation. However, the curtailing of right to express
the views of individuals with regard to social, religious and economic development of the society
resulted in litigation and lead to file several petitions challenging the same provisions of the
Information Technology Act, 2000 before the Apex Court and the APEX Court opined the
curtailing the right to express is injustice and the legislation made under the Section 66-A of the
Information Technology Act, 2000 was struck down by the Hon’ble Supreme Court on 24-03-
2015.
Since Section 66-A of the Information Technology Act, 2000 was struck down in view of its
mindless legislation now found to be unconstitutional and there is every need to immediately
discuss on the issue to bring down freedom of media to elicit more responsibilities on the fourth
pillar of the democracy to perform its duty in strategic development of the society. Hence
keeping in view of the Article 19(2) of the Constitution as well as the other legislations, there is
every need to bring new amendments to the present Information Technology Act, 2000 and other
P a g e | 113
legislations under various Acts, so as to enable the citizen to utilize the freedom of speech
without any hurdles and further to curtail the misuse of internet’s cross-border possibilities by
the militants or extremists or unworthy politicians.
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A COMPARISON OF PARTY AUTONOMY IN AD HOC ARBITRATION AND INSTITUTIONAL

ARBITRATION WITH RELATION TO THE ICC INTERNATIONAL COURT OF ARBITRATION
TRISHNA MENON379
Abstract
Party autonomy is the core principle behind the arbitration process. In the scenario of the
growing importance of international commercial arbitration, it becomes important to consider the
two major kinds of arbitral processes available to parties, that is, institutional and ad hoc and
decide which of these systems may be most suitable for them.
One of the considerations that all parties will tend to give grave importance to is party autonomy
and the parties’ freedom with respect to the arbitration that will ensue. This is a valid enough
consideration, considering that the tribunal’s power derives from the consent of the parties.
In this light, this paper attempts to draw upon the extent of the party autonomy offered by ICC
arbitration and regular ad hoc arbitration.
Party autonomy is the core principle behind the arbitration process. In the scenario of the
growing importance of international commercial arbitration, it becomes important to consider the
two major kinds of arbitral processes available to parties, that is, institutional and ad hoc and
decide which of these systems may be most suitable for them.
One of the considerations that all parties will tend to give grave importance to is party autonomy
and the parties’ freedom with respect to the arbitration that will ensue. This is a valid enough
consideration, considering that the tribunal’s power derives from the consent of the parties.
379
3RD YEAR, GNLU.
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A BRIEF INTRODUCTION TO PARTY AUTONOMY
A basic principle in international commercial arbitration is that of party autonomy. It is described

by the authors of Redfern and Hunter in the following terms:
“Party autonomy is the guiding principle in determining the procedure to be followed in an

international commercial arbitration. It is a principle that has been endorsed not only in
national laws, but by international arbitral institutions and organisations. The legislative history
of the Model Law shows that the principle was adopted without opposition.”380
Further, article 19(1) of the UNCITRAL Model Law (Model Law) provides:
"Subject to the provisions of this Law, the parties are free to agree on the procedure to be
followed by the arbitral tribunal in conducting the proceedings".
The very arbitration procedure is driven by “party autonomy”, that is, choices made by the
parties themselves about how they want the dispute to be dealt with. Firstly of course, the parties
can decide whether they want to use arbitration or not. The parties can then choose which kind of
arbitration they may want to opt for i.e. institutional arbitration or ad hoc arbitration, select the
seat or place of the arbitration, the language of the arbitration, the applicable law, the number of
arbitrators, etc. Importantly, the parties can also select the arbitrators or agree on a method for
their selection.
In the absence of party agreement on points of procedure, the parties’ views will nonetheless be
considered carefully by the arbitral tribunal when it determines the procedure.
A COMPARISON OF INSTITUTIONAL (ICC) AND AD HOC ARBITRATION
Arbitration may be conducted ad hoc or under institutional procedures and rules.
Institutional Arbitration
An institutional arbitration is one in which a specialised institution intervenes and takes on the
role of administering the arbitration process. Each institution has its own set of rules which
380
Redfern and Hunter, with Blackaby and Partasides, Law and Practice of International Commercial Arbitration,
(4th Edition, 2004), p. 315.
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provide a framework for the arbitration, and its own form of administration to assist in the
process.381
Some arbitration institutions all over the world are the London Court of International Arbitration
(LCIA), the International Chamber of Commerce (ICC), the Dubai International Finance Centre
(DIFC), the Singapore International Arbitration Centre (SIAC) and the Dubai International
Arbitration Centre (DIAC). There are almost approximately 1200 institutions worldwide which
offer arbitration services, and some deal with only a particular trade or industry.
Often, the contract between two parties contains an arbitration clause which designates a
particular institution as the arbitration administrator. If institutional administrative charges are
not a concern for the parties, this approach is usually preferred to less formal 'ad hoc' methods of
arbitration. The reasons for this preference are detailed below.
Advantages of institutional arbitration
For those who can afford institutional arbitration, the most important advantages are:
1. the availability of pre-established rules and procedures which ensure the

arbitration proceedings begin in a timely manner
2. administrative assistance from the institution, which will provide a
secretariat or court of arbitration;
3. a list of qualified arbitrators to choose from;
4. assistance in encouraging reluctant parties to proceed with arbitration;
and
5. an established format with a proven record.382
Institutional arbitration can save parties and their lawyers the effort of determining the arbitration
procedure and of drafting an arbitration clause, which is provided by the institution. Once the
parties have selected an institution, they can incorporate that institution's draft clause into their
contract. An institution's panel of arbitrators will usually be made up of experts from various
381
Out-law.com, Institutional vs. 'ad hoc' arbitration, http://www.out-law.com/en/topics/projects--
construction/international-arbitration/institutional-vs-ad-hoc-arbitration/, last accessed 20 September 2015.
382
Ibid.
P a g e | 117
regions of the world and include many different vocations. This allows parties to select an
arbitrator possessing the necessary skill, experience and expertise to provide a quick and
effective dispute resolution process. It should be noted, however, that the parties merely
nominate an arbitrator - it is up to the institution to make an appointment and the institution is
free to refuse an appointment if it considers that the nominated arbitrator lacks the necessary
competence or impartiality.
A further benefit of institutional arbitration is that the parties and arbitrators can seek assistance
and advice from institutional staff. In a less formal ad hoc arrangement, parties to the arbitration
would have to approach the court in order to take the arbitration forward and this would
inevitably incur further expenditure.
One of the perceived advantages of arbitration generally is that it provides a final and binding
award which cannot be appealed. However, there is an inherent risk that a mistake made by a
tribunal could not be rectified at a later stage. To counterbalance this risk, some institutional
rules provide for scrutiny of the draft award before the final award is issued. A dissatisfied party
could then appeal to an arbitral tribunal of second instance which would be able to confirm, vary,
amend or set aside the draft award. Less formal processes provide no such option.
Disadvantages of institutional arbitration
Even in view of the above advantages of institutional arbitration, there are some primary
disadvantages of institutional arbitration:383
1. administrative fees for services and use of the facilities, which can be
considerable if there is a large amount in dispute - sometimes, more than
the actual amount in dispute;
2. bureaucracy from within the institution, which can lead to delays and
additional costs;
3. the parties may be required to respond within unrealistic time frames.
AD HOC ARBITRATION
383
Ibid.
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An ad hoc arbitration is one which is not administered by an institution such as the ICC, LCIA,
DIAC or DIFC. The parties will therefore have to determine all aspects of the arbitration
themselves, i.e., the number of arbitrators, appointing those arbitrators, the applicable law and
the procedure for conducting the arbitration. If the parties approach the arbitration in a
cooperative manner, ad hoc proceedings have the potential to be more flexible, faster and
cheaper than institutional proceedings.
The arbitration agreement, whether reached before or after a dispute has arisen, may simply state
that 'disputes between parties will be arbitrated'. It is preferable of course to specify the place or
'seat' of the arbitration as well since this will have a significant impact on several vital issues
such as the procedural laws governing the arbitration and the enforceability of the award. If the
parties cannot agree on the detail all unresolved problems and questions relating to the
implementation of the arbitration - for example, how the tribunal will be appointed or how the
proceedings will be conducted – will be determined by the 'seat' or location of the arbitration.
However, this approach will only work if the seat of the arbitration has an established arbitration
law.
Ad hoc proceedings need not be entirely disassociated from institutional arbitration. Often,
appointing a qualified arbitrator can lead to the parties agreeing to designate an institutional
provider as the appointing authority. Additionally, the parties may decide to engage an
institutional provider to administer the arbitration at any time.
Advantages of ad hoc arbitration
A properly structured ad hoc arbitration would ideally be more cost effective, and therefore
better suited to smaller claims and less wealthy parties. The ad hoc process places a heavier
burden on the arbitrator to organise and administer the arbitration. A distinct disadvantage of the
ad hoc process is that its effectiveness is dependent on how willing the parties are to agree on the
arbitration procedures at a time when there may already be a dispute.
A primary advantage of the ad hoc process is its flexibility, enabling the parties to decide the
dispute resolution procedure themselves. However, this will of course require a greater degree of
effort, cooperation and expertise from the parties to determine the arbitration rules. Often the
P a g e | 119
parties may misunderstand each other if they are different nationalities and come from different
jurisdictions, and this can cause delays. Again, once a dispute has arisen this may frustrate the
parties' intention to resolve the dispute on an ad hoc basis.
These situations can be avoided if the parties agree that their arbitration should be conducted
under certain arbitration rules. This will result in reduced deliberation and legal fees, and parties
will be able to begin proceedings early as they will not have to engage in negotiating specific
rules. The United Nations Commission on International Trade Law (UNICITRAL) Arbitration
Rules, revised in 2010, are considered to be the most suitable rules for this purpose.
The arbitrators' fees will be negotiated directly between the parties and the arbitrators, allowing
them the option to negotiate, whereas in institutional arbitration the arbitrators' fees will be set by
the institution. The disadvantage here is that this can involve an uncomfortable discussion and, in
certain cases, the parties may not be able to negotiate a fee reduction. The arbitrators are the
'judges' in the case and no party would wish to upset the judge, particularly before the
proceedings have even commenced.
Disadvantages of ad hoc proceedings
Parties wishing to include an ad hoc arbitration clause in the underlying contract between them,
or seeking to agree the terms of arbitration after a dispute has arisen, have the option of
negotiating a complete set of rules which meet their needs. However, this approach can require
considerable time, attention and expense with no guarantee that the terms eventually agreed will
address all eventualities. Furthermore, if parties have not agreed on arbitration terms before any
dispute arises they are unlikely to fully cooperate in doing so once a dispute has arisen.
Bodies such as UNICITRAL have rules available which are designed specifically for ad hoc
proceedings. Other options available to parties wishing to proceed in this way, who are not in
need of rules drawn specifically for them, include:
1. using or adapting a set of institutional rules such as the ICC Rules of

Arbitration;
2. incorporating statutory procedures, such as the Indian Arbitration and
Conciliation Act, 1996;
P a g e | 120
3. adopting an ad hoc provision from another contract.
These options all carry certain risks. For example, where rules drawn up by an institutional
provider are incorporated into ad hoc proceedings, existing provisions which require
administration by the provider - such as making appointments - will need to be amended or
excluded. This runs the risk of creating ambiguities, or of the parties unintentionally creating an
institutional process.
ANALYSIS OF THE EXTENT OF PARTY AUTONOMY IN AD HOC AND INSTITUTIONAL

INTERNATIONAL ARBITRATION
Needless to say arbitration, being based on agreement of the parties, gives them the opportunity
to determine the procedure of resolution of their case. This basic principle of arbitration is known
as party autonomy.384
Party autonomy has been explained as the guiding principle in determining the procedure to be
followed in an international commercial arbitration. It is a principle that has been endorsed not
only in national laws, but by international arbitration institutions and organizations. The
legislative history of the Model Law shows that the principle was adopted without opposition.385
The UNCITRAL Model Law on International Commercial Arbitration (“Model Law”), in its
Article 19 (1), sets forth the following provision on party autonomy:
“Subject to the provisions of this Law, the parties are free to agree on the procedure to be
followed by the arbitral tribunal in conducting the proceedings”.
However, from the wording of the Model Law it is apparent that the parties’ ability to be master
of the proceeding is not absolutely boundless. Therefore, an important practical question that
arises in this regard concerns the actual limits of party autonomy.
Such limits or restrictions are established in several levels and to certain extent depend upon the
timeline. In other words, from the moment of negotiating an arbitration agreement and up to
384
Olena S. Perepelynska, Party Autonomy vs. Mandatory Rules in International Arbitration, The Ukrainian Journal
of Business Law Jan-Feb 2012, pp. 38-39.
385
A. Redfern and M. Hunter, with N. Blackaby and C. Partasides, Law and Practice of International Commercial
Arbitration, 4th Edition, 2004 at p. 265.
P a g e | 121
receipt of an arbitral award, the extent of the party autonomy could substantially differ. And even
more, applicability of certain restrictions could depend on parties’ agreement on certain
questions, when reached.
These restrictions may have different sources, purposes and background. For instance, in order to
ensure validity, operability and capability of performing an arbitration agreement, the parties will
need to comply, in both letter and form, with respective mandatory requirements established by
law governing arbitration agreements; for example, to indicate correct and full name of the
arbitral institution and its rules (if the parties agree on institutional, and not ad hoc arbitration)
and the parties will also have to observe applicable mandatory provisions of the arbitration rules
chosen and so on.
In light of the above examples of limitations of party autonomy, it is important to consider its
extent in more specific instances. Party autonomy becomes relevant when parties choose ad hoc
or institutional arbitration, to determine the number of arbitrators and establish requirements to
their qualification, to agree on the place of arbitration, language of the arbitral proceedings and
so on.
Rules and procedures to conduct the arbitration
As far as institutional arbitration is concerned, the ICC boasts the availability of pre-established
rules and procedures which ensure the arbitration proceedings begin in a timely manner. ICC
Arbitration proceeds in an established format.
However, before arbitration proceedings begin, parties are free in theory to specify in their
contract the rules of procedure to be applied in the arbitration proceedings.386 Therefore, it can be
said that ICC does not completely clamp down on party autonomy before proceedings begin.
Yet another set of restrictions applies in institutional arbitration.387 The most apparent one
concerns application by a particular institution of its own arbitration rules. Put in other words,
when the parties agree to submit their disputes to a permanent arbitral institution, then they could
not agree on conducting those arbitral proceedings according to the rules of another arbitral
386
FRANCIS J. HIGGINS, WILLIAM G. BROWN AND PATRICK J. ROACH, Pitfalls in International Commercial
Arbitration, The Business Lawyer, Vol. 35, No. 3 (April 1980), pp. 1035-1051.
387
Ibid.
P a g e | 122
institution (e.g. the ICAC at the UCCI arbitration according to ICC rules). This principle is set
forth in respective institutional rules, and also in Article IV(1)(a) of European Convention on
International Commercial Arbitration, Geneva, 1961:
“Article IV - Organization of the arbitration 1. The parties to an arbitration agreement shall be

free to submit their disputes: (a) to a permanent arbitral institution; in this case, the arbitration
proceedings shall be held in conformity with the rules of the said institution”.
This restriction is connected, inter alia, with fulfilment of administrative functions by the
administrative bodies of a respective institution. The institutional rules related to such functions
are predominantly mandatory and could not be modified or waived by the parties. At the same
time, the list of such functions varies depending on particular institution, and may include, e.g.
scrutiny of arbitral awards under ICC Rules, appointing of a chairman of the tribunal by the
Board in SCC Rules, appointing of a case reporter in the Rules of the ICAC at the Chamber of
Commerce and Industry of the Russian Federation etc. It goes without saying, that the
institutional rules on establishing amounts of arbitration costs and fees could not be changed by
an agreement of the parties.
However, in ad hoc arbitration, the core principle is flexibility, enabling the parties to decide the
dispute resolution procedure themselves. Parties can also decide the applicable law (provided
that there is an established arbitration law at the seat of the arbitration) and the procedure for
conducting the arbitration.
It is submitted, in this respect, that in ICC arbitration, party autonomy takes a back seat as
compared to the more flexible ad hoc arbitration. It is to be noted however, that the pre-existing
rules in ICC arbitration can work towards the efficiency of the arbitration process as compared to
the ad hoc system which may cause confusion if the parties are not cooperative.
Choice of arbitrators
With regard to the selection of arbitrators, a majority of the institutional rules establishes certain
limitations with regard to procedures of appointment and challenge of arbitrators.
P a g e | 123
The ICC Court of Arbitration decides in the first instance the existence of the agreement to
arbitrate, selects the arbitrator or arbitral panel and the place of arbitration and in general,
supervises the mechanical aspects of the arbitration proceedings and the rendering of the arbitral
award. The ICC Court does not itself resolve the dispute; this is the sole function of the
arbitrators (either one or three), who conduct the arbitral proceedings in accordance with the ICC
Rules. The ICC Secretariat functions as a support body, compiling names of persons who may be
selected as arbitrators and assisting the Court, arbitrators and parties in administrative matters. In
addition to its services in connection with commercial arbitration, the ICC also provides persons
and facilities to assist in the conciliation of disputes at the option of the parties.388
Whereas in ad hoc arbitration, the parties are completely free to select an arbitrator or arbitral
tribunal of their choice and will not be bound by any other factors. The parties can directly
negotiate the arbitrators’ fees between the parties and the arbitrators, allowing them the option to
negotiate, whereas in institutional arbitration the arbitrators' fees will be set by the institution.
As regards this aspect also, it is submitted that ad hoc arbitration offers a greater degree of party
autonomy than ICC arbitration.
Nonetheless, despite the obvious instances of demarcation of party autonomy and mandatory
rules, many questions continue to arise regarding conflicts over these concepts. For example, in
the case of a rule which is not designed to be apparently dispositive or mandatory but does not
mention the parties’ agreement? Can the parties still agree otherwise?
Those questions, if put in the context of applicable arbitration laws, turn out to be even more
complicated, especially if respective arbitration rules and national law set forth different
provisions on the same issue. Finally, if the parties have agreed on certain issue, is that
agreement always binding for the arbitral tribunal, or is it subject to the tribunal’s approval?
There are no definite answers to all those questions, and, as practice and doctrine shows, each
time it is necessary to look for respective answer in applicable rules, although sometimes it could
be not easy to find them.
388
ICC booklet, pp. 14-17.
P a g e | 124
In this respect, a fairly reasonable approach is taken by ICC Rules, establishing in their Article
15(1) the following hierarchy:
“The proceedings before the Arbitral Tribunal shall be governed by these Rules and, where
these Rules are silent, by any rules which the parties or, failing them, the Arbitral Tribunal may
settle on, whether or not reference is thereby made to the rules of procedure of a national law to
be applied to the arbitration.”
But such “hierarchy provisions” are an exception and not a rule. And thus, well-considered
realization of the party autonomy would allow avoiding potential problems in future.
Thus, by and large, it would appear that as far as party autonomy is concerned, it is ad hoc
arbitration that grants this in a greater degree.
P a g e | 125
Conclusion
In conclusion, while it is commonly said that parties are the masters of arbitration, this becomes
questionable in institutional arbitration, where the institution effectively acquires the parties'
powers to make decisions - such as the appointment of arbitrators – and can impose their will
upon the parties. It is submitted that this seems against the spirit of arbitration. In this light, while
ad hoc arbitration may seem preferable in today's modern and commercially complex world, it is
really only suitable for smaller claims involving less affluent parties in domestic arbitrations.
In the context of international commercial arbitration, institutional arbitration may be more

suitable - despite being more expensive, time consuming and rigid. The institutional process
provides established and up to date arbitration rules, support, supervision and monitoring of the
arbitration, review of the awards and strengthens the awards’ credibility.
The particular circumstances of the parties and the nature of the dispute will ultimately determine
whether institutional or ad hoc arbitration should prevail.
The Inter-relationship between Insider Trading and The
Companies Act, 20131
I. Introduction
The basic aim behind regulating the securities markets is to protect investors and that they as an investor get
the rewards they are entitled to for having participated in the activities of the market. 2 It is therefore essential
that the markets in which investors operate are kept free from fraud and in particular from insider trading. It
is the inevitable presence of insider trading which causes an investor to lose interest in the workings of the
market. The case of “Schlanger vs. Four Phase Systems Inc.”3 puts forth this loss of interest in very succinct
words, as “it is hard to imagine that there ever is a buyer or seller who does not rely on market integrity. Who
would knowingly roll the dice in a crooked crap game?”4 It is surprising to note that trading by an insider,
including directors, officers or employees of the company is not a per se violation of the law. The law
prohibits the act when the trading by an insider is done in a breach of duty of trust or confidence in the stocks
of the company by using information that isn’t available to the public. Insider Trading also includes the act of
passing “tips” or such sensitive information to any person by the insider. The misuse of this information by
the person receiving the tips is as harmful as the direct misuse of the information by the insider himself.5
The SAT in the case of “Ranjana.R.Kothari vs. SEBI”6 has held that “an insider or a related party cannot
trade on such information obtained during the performance of the insider’s duties as it is a breach of fiduciary
relationship. It is indeed, a very serious wrong doing in regard to the securities market as it gives the insider
an undue advantage in trading which is not available to other investors.”7
Similarly the SAT in the case of “E. Sudhir Reddy vs. SEBI”8 held that “knowledge of such unpublished
price sensitive information in the hands of persons connected to the company puts them in an advantageous
position over the ordinary shareholders and the general public. Such trading by the insider is not based on a
level playing field and is detrimental to the interest of the ordinary shareholders of the company and the
1 Siddharth Bagul
2
Sandeep Parekh, Fraud, Manipulation and Insider Trading in the Indian Securities Markets (1st edn, Wolters Kluwer
(India) Pvt Ltd 2014) 127
3 555 F. Supp. 535 (1982)
4 Ibid
5 Sandeep Parekh, Fraud, Manipulation and Insider Trading in the Indian Securities Markets (1st edn, Wolters Kluwer

6 Appeal 125 of 2011, SAT 26.08.2011
7 Ibid
8 Appeal 138 of 2011, SAT 16.12.2011
general public”9
It thus is crystal clear that the Supreme Court is extremely dismissive when it comes to insider trading since
the main aim behind all the legislations on insider trading is to protect the interests of investors and to
provide them with what they are owed.
II. RESEARCH QUESTION
The author in this project will try to understand and explain what actually is defined as “insider trading”. The
Companies Act, 2013 has developed new measures to combat the menace of insider trading through the
addition of Section 195 in the 2013 amendment. The author shall analyze Section 195 of the Companies Act,
2013 and provide notes on the section. In addition, the author shall also discuss the report of the committee
instituted by SEBI to review the SEBI (Prohibition of Insider Trading) Regulations, 1992. The author shall
add a brief comparison of the 1992 insider trading regulations with the 2013 insider trading regulations. The
author shall provide cases as and when necessary to substantiate the points made.
III. INSIDER TRADING: A BRIEF UNDERSTANDING
Insider Trading has been defined extensively in the Companies Act, 2013 and insider trading in simplified
terms is “essentially the wrong of trading in securities with the advantage of having asymmetrical access to
unpublished information which when published would impact the price of securities in the market.”10 Insider
Trading has been garnering attention from stock market regulatory bodies all around the world and while
jurisdictions all around the world are explicitly concordant in their resolve to combat insider trading and
restore investor confidence, the laws dealing with insider trading in all jurisdictions is not the exact same. 11
India treats insider trading not only as a civil wrong i.e. a tort but also a crime. Section 195(2) of the
Companies Act, 2013 and Section 15G of the SEBI act prescribe punishment for the crime of insider
trading.12
There are several types of insiders and deemed insiders and some of them are as follows13:
1. Classic Insider
2. Company as an Insider
3. Outside Fiduciaries
4. Deemed Insiders
5. Former Fiduciaries
9 Ibid
10 N.K.Sodhi, Report of the High Level Committee to Review the SEBI (Prohibition of Insider Trading) Regulations
1992
11 Ibid
12 Ibid

6. Tippees
For the purposes of this project, the author shall only discuss the topic of “Company as an Insider”.
COMPANY AS AN INSIDER
The word “person” used in the definition of the term “insider” is inclusive of companies and is reinforced by
Regulation 3A, which specifically deals with, companies. Regulation 3A of the SEBI (Prohibition of Insider
Trading) Regulations14, 1992 categorically prohibits a company from dealing in the securities of another
company, or an associate of that company while the company is in possession of unpublished price sensitive
information. This proves that for insider trading to occur, there needs to be access to inside information for a
violation to occur. Regulation 3B provides a defense for companies if the company can prove that the
investment decision was taken by a person other than a person who has access to unpublished price sensitive
information. Regulation 3B(2) is however a bit unclear. Regulation 3B(2) states that in a case where an
acquiring company is looking to acquiring another company under a friendly acquisition, there is a strong
possibility that there will be access to inside information on behalf of the acquiring company and this section
can be used as a defense to a charge of insider trading under the term of “open offer”. What it means is that
where due diligence has been done and a regulated offer is made, a charge of insider trading cannot be filed
against an acquiring company. This is usually because of the system of transparency and openness which is
got in an open offer leads to a minimal chance of there occurring insider trading and an additional safeguard
is that SEBI checks “open offer” documents with ruthless efficiency.
IV. INSIDER TRADING AND THE COMPANIES ACT, 2013
The Companies Act, 2013 has specifically inserted an entire section, which deals with insider trading. An
interesting thing to note is that the Companies Act, 1956 had no corresponding section on insider trading.
Section 195 of the Companies Act, 2013 defines insider trading as “as an act of subscribing, buying, selling,
dealing or agreeing to subscribe, buy, sell or deal in any securities by any director or key managerial person
or any other officer of a company either as principal or agent if such director or key managerial personnel or
any other officer of the company is reasonable expected to have access to any non-public price sensitive
information in respect of securities of company or; an act of counseling about procuring or communicating
directly or indirectly any non-public price-sensitive information to any person”15
This definition essentially prohibits all persons including the director or key managerial personnel from
engaging in insider trading. Insider trading can simply be defined as dealing in securities of the company
based on non-public price sensitive information in respect of the securities of a company by any person
including the director or any other key managerial person or any officer who has access to such price-
14 SEBI (Prohibition of Insider Trading) Regulations

15 Section 195, The Companies Act, 2013
sensitive information.16
An important aspect in relation to insider trading is the existence of unpublished price sensitive information.
Section 195(1)(b) defines price-sensitive information as “it means any information which relates directly or
indirectly, to a company and which if published is likely to materially affect the price of securities of the
company”17
The definition given for price-sensitive information under the Companies Act, 2013 is similar to the
definition for price-sensitive information under the SEBI (Prohibition of Insider Trading) Regulations, 1992.
However, the only difference is that the SEBI regulations also provide a list of transactions, which are
deemed to be price-sensitive in nature.18 The ambit of the definition is also wider under the SEBI
Regulations, 1992 and it covers all intermediaries who have even the slightest bit of access to price-sensitive
information. The definition under Section 195 of the Companies Act, refers only to directors, key managerial
persons or any officer of the company but it does not take account the dealing in securities by any third party
based on price-sensitive information.19
The definition and the application of the definition of insider trading under the Companies Act, 2013 is
applicable to listed companies where shares are actively traded. It however does not exclude private and
unlisted companies from its ambit and neither does it provide any exemption to such companies.20 Section
195(2) throws light on the issue of penalties for having committed the offence of insider trading. Section
195(2) says “if any person contravenes the provision of this section, he shall be punishable with
imprisonment for a term which may extend to five years or with fine which shall not be less than five lac
rupees but which may extend to twenty five crore rupees or three times the amount of profits made out of
insider trading, whichever is higher or both”21
Any violation of Section 195 of the 2013 Companies Act by any person shall be punishable with
imprisonment for a term which may extend to five years or with fine which cannot be less than five lac
rupees which can also extend to twenty five crore rupees or three times the amount of the profits made from
insider trading or whichever is higher. This definition presupposes the existence of profits in insider trading
and hence the penalty is left to be determined with respect to the profits made by the person. The punishment
given under this section is extremely rigorous in nature and is drafted so it can act as a deterrent for people.22
The case of V.K. Kaul vs. SEBI is an excellent example of insider trading under Section 195 and how the
courts have taken the issue of insider trading in an extremely serious manner.
V.K. KAUL vs. SEBI23
16
A Ramaiya, Guide to the Companies Act (18th edn, Lexis Nexis) 3413
17Section 195(1)(b), The Companies Act, 2013
18A Ramaiya, Guide to the Companies Act (18th edn, Lexis Nexis) 3413
19 Ibid
20
Ibid
21 Section 195(2), The Companies Act, 2013
22 A Ramaiya, Guide to the Companies Act (18th edn, Lexis Nexis) 3413
23 (2012) 116 SCL 24 : (2012) 111 CLA 629 (SAT)
Facts of the case
SEBI alleged on the basis of reports it received from NSE (National Stock Exchange) and BSE (Bombay
Stock Exchange) that Mr. V.K.Kaul through his wife purchased a substantial amount of shares in the target
company, which was Orchid Chemicals. V.K.Kaul was on the board of directors for Ranbaxy and he through
his wife purchased 50,000 shares of Orchid Chemicals, before a subsidiary company of Ranbaxy would inject
about Rs. 200 crore rupees into the firm and thus raising investment in the firm. Bala Kaul, wife of V.K.Kaul
purchased 50,000 and two weeks later, sold them for a profit of Rs. 43 Lacs.24
SEBI alleged that a case of insider trading be registered against V.K. Kaul and Bala Kaul on the basis of the
pecuniary evidence which was found and fined V.K. Kaul 50 lacs and his wife 10 lacs.
Judgment
The main argument taken by the defendant was that for a crime of insider trading to occur, there
should be the existence of an insider. He further contended that he had absolutely zero connection to
Orchid Chemicals in any way whatsoever.25 SEBI argued that for a person who is connected or
deemed to have bee connected to a company, can be termed an insider if he/she on the basis of that
connection, can be reasonably expected to be privy to unpublished price-sensitive information of
that particular company.26 The director (defendant) and his wife were found guilty of insider trading
as the decision to purchase the shares of Orchid Chemicals was extremely likely to materially affect
the price of the shares of that company.27 In addition, the defendant was on the Board of Directors of
Ranbaxy and thus he was reasonably expected to be in possession of the knowledge that the
subsidiaries of Rnabaxy were planning to inject investment in Orchid Chemicals to the tune of Rs.
200 crore. This was essentially unpublished price sensitive information and would definitely affect
the prices of the shares of that company. The Securities Appellate Tribunal upheld SEBI’s order of
the fine.28
V. PRICE-SENSITIVE INFORMATION
One of the important aspects to of insider trading is the possession of price-sensitive information.
What exactly is price-sensitive information? Is it any information associated with the company or
some material information regarding the company? What can be termed as “material” information?
24 Ibid
25 Ibid
26 Ibid
27 A Ramaiya, Guide to the Companies Act (18th edn, Lexis Nexis) 3413
28 Ibid
According to the IT Regulations, price-sensitive information can be defined as follows:
Regulation 2(1)(ha): “price-sensitive information means any information which relates directly or
indirectly to a company and which if published is likely to materially affect the price of securities of
the company”29 The definition is self-explanatory in nature, and any information which an investor
could use while making his investment decisions would be price-sensitive information.30
The SAT in the case of “E.Sudhir Reddy vs. SEBI”31 held that “The best evidence of price-sensitive
information is of course the actual observation when the information is released to the public. If the
price of the securities rises (or falls) well above (or below) the statistical range of the daily price
changes, there is fair evidence of price-sensitive information”32
Similarily, in the case of “Ranjana Kothari vs. SEBI”33 the financial results of the company and the
fact that it was considering the issue of bonus shares were held to be price-sensitive information and
while this information was unpublished and the appellants were in possession thereof, Ranjana
Kothari (wife of a promoter) and P.Kashyap Kothari (nephew of a promoter and son of the
Chairman cum Mananging Director) purchased 31,354 and 11,175 shares of the company
respectively. When the information about the issue of bonus shares entered public domain, the price
of each share rose from Rs. 18 per share to Rs. 63 per share, thsu rising far above what was
reasonably expected. Thus, Ranjana Kothari and P. Kashyap Kothari were held guilty of having
committed the crime of insider trading.34
Another important question which can be asked at this juncture is when does information become
public? One can’t reasonably expect information to become public information immdiately. There
have been various cases where an insider has disclosed information and within a few seconds of the
information being made public, the insider executes a trade. This would clearly constitute a violation
as the insider must allow the information to enter the market before having executed a trade.35
It was held in the case of “Sadhana Nabera vs. SEBI”36 that once information is published, the
information no longer remains price-sensitive. The SAT held “When the information regarding the
29 Regulation 2(1)(ha), Income Tax Regulations

31 Appeal No. 138 of 2011, (SAT), 16.12.2011)
32 Ibid
33 Appeal 125 of 2011, SAT 26.08.2011
34 Ibid

36 Appeal no. 26 of 2007, (SAT), 19.2.2008
proposed merger was published on the bulletion of the BSE on the 4th of August, 2000 it entered
public domain and was available to all and sundry and thereafter it ceased to be unpublished price-
sensitive information. It follows that with effect from the date when the information became public,
there was no bar for anyone, including those who were earlier insiders to trade on the basis of that
information”37
VI. SEBI AND INSIDER TRADING
The Securities and Exchange Board of India Act, 1992 deals extensively with insider trading.
Section 11(2)(g) of the SEBI Act, 1992 specifically prohibits insider trading in the securities
markets. Chapter VA of the SEBI Act also deals with insider trading. Section 12A again prohibits
insider trading in the securities market. While Section 11(2)(g) and 12A prohibit insider trading in
the securities markets, Section 15G provides the penaly for having indulged in insider trading.
Section 15G is as follows: “If any insider who, -
1. Either on his behalf or on behalf of any other person, deals in securities of a body corporate
listed on any stock exchange on the basis of any unpublished price-sensitive information; or
2. Communicates any unpublished price-sensitive information to any person, with or without
his request for such information except as required in the ordinary course of business or
under any law: or
3. Counsels, or procures for any other person to deal in any securities of any body corporate on
the basis of unpublished price-sensitive information, shall be liable to a penalty of twenty-
five crore rupees or three times the amount of profits made out of insider trading, or
whichever is higher”38
Thus, as we can see the prohibition and the penalty for insider trading is very clearly laid down in
the SEBI Act, 1992.
VII. THE SEBI (PROHIBITION OF INSIDER TRADING) REGULATIONS, 1992
37 Ibid
38 Section 15G, SEBI Act, 1992
The Indian standard and comprehensive rules/guidelines on insider trading have been substantially
covered under the SEBI (Prohibition of Insider Trading) Regulations, 1992.39 These regulations
came into force w.e.f 19th November, 1992 and are applicable to all listed companies which are
required to disseminate price-sensitive information such as the financial results, dividend/bonus
declarations, mergers/amalgamations and other material developments, which have a substantial
impact on the share prices of the company.40
There were subsequent amendments made to the Regulations in the year 2002 and 2008. The
amendments in 2002 required companies to create a model code of conduct for its directors/officers
which would monitor and prevent insider trading. In addition, the term “price-sensitive information”
was defined clearly in the 2002 amendments.41
The amendments made in the year 2008 include widening of the definition of insider trading to
include all persons (not necessarily connected to the company) who has access to the unpublished
price-sensitive informaion. The other significant amendment is that the
officers/directors/emplpoyees of a company have to disclose their holdings in the company and its
dependants within 2 days and also they cannot carry out reverse trades withing 6 months.42
Regulation3, 3A and 3B are extremely important regulations relating to insider trading. Regulation
343 specifies that an insider shall not communivate, counsel or procure directly or indirectly any
unpublished price-sensitive information to any person while in possession of such unpublished
price-sensitive information. Regulation 3A44 also bars a company from dealing in securities of
another company or associate of company while in possession of any unpublished price-sensitive
information.
VIII. COMPARISION BETWEEN THE 1992 INSIDER TRADING REGULATIONS AND THE
2015 INSIDER TRADING REGULATIONS
The Securities and Exchange Board of India (SEBI) finally notified the SEBI (Prohibition of Insider Trading
40
GS Rao, (A look at SEBI (Prohibition of Insider Trading) Regulations, 1992,)
<http://www.caclubindia.com/articles/a-look-at-the-sebi-prohibition-of-insider-trading-regulations-1992-part-1--
15782.asp> accessed 20th August 2015
41 The SEBI (Insider Trading) (Amendment) 2002
42 The SEBI (Prohibition of Insider Trading) (Amendment) 2008
43 Regulation 3, SEBI (Prohibition of Insider Trading) Regulations, 1992
44 Regulation 3A, SEBI (Prohibition of Insider Trading) Regulations, 1992
Regulations) 2015 (Regulations) on January 15, 2015 replacing the two-decade old insider trading norms in
India. The Regulations are based on the recommendations made by an 18 member committee constituted by
SEBI under the chairmanship of Justice N.K. Sodhi, which were approved by the SEBI Board in its meeting
held on November 19, 2014. There have been various monumental changes made to the 1992 Regulations
and some of these changes are discussed below.45
The definition of the term “insider” has been widened considerably to include all connected/non-connected
persons i.e. any person who has access to unpublished price-sensitive information will be regarded as an
insider under the 2015 Regulations.46 The term “generally available information” which means information
that is accessible to the public on a non-discriminatory basis has also been added to the Regulations and this
has been added/used with reference to unpublished price-sensitive information.47 The term “immediate
relative” has also been added and it inlcudes a spouse of a person, and includes parent, sibling, and child of
such person or of the spouse, any of whom is either dependent financially on such person, or consults such
person in taking decisions relating to trading in securities.48 The term “trading” has also been defined and it
covers what was under “dealing in securities” in the 1992 Regulations. The term “unpublished price-
sensitive information” has been widened to include information not just about the company but also its
securities.49 Regulation 3 has also widened its ambit and is now a charging provision under the 2015
Regulations.50 Regulation 3(1) has been added which defines the duties of an insider. Regulation 3A of the
1992 Reguations has been replaced by Regulation 4 and 4(1) which prohibit an insider from trading in
securities when in possession of unpublished price-sensitive information.51 The provisio to Regulation 4(1)
gives three exceptions, when insider can trade in securities, while in possession of unpublished price-
sensitive information.52
IX. CONCLUSION
Insider Trading is one of the most controversial aspect of securities regulations. On account of its complex
nature and myriad possibilities, it is extremely easy to commit crime and walk away scot-free. In addition,
since securities law hasn’t developed much in India as compared to other developed countries, there arises a
higher need for stringent regulation in the securities markets. The 1992 SEBI Regulations were replaced by
45 N.K.Sodhi, Report of the High Level Committee to Review the SEBI (Prohibition of Insider Trading) Regulations
1992
46 Ibid
47 Ibid
48
Kiran Mukadam, (Comparison between SEBI (Prohibition of Insider Trading) Regulations, 2015 and 1992
Regulations, ) <http://taxguru.in/sebi/comparison-sebi-prohibition-insider-trading-regulations-2015-sebi-prohibition-
insider-trading-regulations-1992.html> accessed 22nd August 2015
49
PKPandya&Co. (SEBI Insider Trading Regulations 2015 and 1992 – A Comparison) <http://pkpandya.com/sebi-
insider-trading-regulations-2015-and-1992-comparison/> accessed 23 August 2015
50 Ibid
51 Ibid
52 Ibid
the 2015 SEBI IT Regulations and the new regulations are extremely comprehensive and detailed in nature.
SEBI, with the help of stock exhanges acts like a watchdog and protector of the investors in the market. In
addition, it is extremely uplifting to see the judiciary being pro-active in its approach towards ending the
menace of insider trading in India.

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INDIAN JOURNAL OF CONTEMPORARY LEGAL AFFAIRS ( www.ijcla.com)

Indian Journal of Contemporary Legal Affairs

Indian Journal of Contemporary Legal Affairs

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 Saurabh Ajay Gupta (Additional Advocate General, Punjab and

Karan Mittal (WBNUJS, Kolkata)

{Editor-in-Chief, Indian Journal of Contemporary Legal Affairs}

(Managing Editor, Indian Journal of Contemporary Legal Affairs)

{Executive Editor, Indian Journal of Contemporary Legal Affairs}

(Associate Editor, Indian Journal of Contemporary Legal Affairs)

(Associate Editor, Indian Journal of Contemporary Legal Affairs)

(Associate Editor, Indian Journal of Contemporary Legal Affairs)

(Associate Editor, IJCLA)

TITLE OF THE PAPER AUTHOR PAGE

INTELLECT AND GERMAN VYAS AND DEEKHA

SECTION 5D: THE CONSTITUTIONALITY OF MAHARASHTRA “BEEF

One of the possible challenges to the constitutionality of Section 5D is violation of right to

FRAUD ON THE CONSTITUTION: CONSTITUTIONALISM OR JUDICIAL

WRONGLY INTERPRETING “CONSULTATION” AS “CONCURRENCE”

Wrong interpretation of Legislative History of Article 50

Wrong interpretation of Precedence

Consultation Did Not Mean Concurrence Even In GoI Act, 1935

Problem with giving primacy to opinion of the Chief Justice

CREATION OF CONSULTATIVE PROCESS IN FORMATION OF THE OPINION OF THE CHIEF

PROPERTY RIGHTS OF ADOPTED CHILD UNDER HINDU LAW

OLD HINDU LAW

MODERN HINDU LAW

THE DOCTRINE OF RELATION BACK

INTERPRETATION OF §12 (C) OF THE HAMA, 1956

DOCTRINE OF RELATION BACK: DISCUSSED

INDIAN CONSTITUTION ON EDUCATION AND EDUCATIONAL INSTITUTIONS -

CONSTITUTIONAL VALIDITY OF THE ‘THE CONSTITUTION (NINETY THIRD AMENDMENT ) ACT,

VALIDITY OF EXCLUSION OF AIDED AND UNAIDED MINORITY INSTITUTIONS FROM THE

SCOPE OF INCLUSION OF PRIVATE UNAIDED NON- MINORITY INSTITUTIONS FROM THE

CONSTITUTIONAL VALIDITY OF THE RIGHT TO EDUCATION ACT, 2005.

VALIDITY OF EXCLUSION OF UNAIDED MINORITY INSTITUTIONS UNDER SECTION 1(4) OF THE

The 93rd Amendment to the Constitution straightforwardly or by implication influences a great

RIGHT TO BE FORGOTTEN: DISCERNING THE CONTROVERSIES AND THE WAY

GOOGLE’S CONTROVERSY: DELINEATING THE BACKDROP

ISSUES BEFORE THE COURT

JURISDICTION OF THE COURT

GOOGLE IS THE ‘DATA CONTROLLER’

DO CITIZENS HAVE ‘RIGHT TO BE FORGOTTEN’?

UNDERSTANDING THE RIGHT TO BE FORGOTTEN

JURISDICTIONAL OUTREACH IN THE CASE

GOOGLE’S PUZZLE/ ABSENCE OF UNIFORM PROCEDURE IN

COULD INTERNET FORGET ANYTHING?

RESOLUTION FOR THE PROBLEM

A COMMON SPACE FORUM FOR ASIA: FEASIBILITY STUDY

II. THE NEED FOR A SPACE REGIONAL ORGANIZATION

III. TAKING EXAMPLE OF ESA

2. By elaborating and implementing a common European space programme;

IV. THE TWO SPACE AGENCIES OF ASIA

The decisions are made in following manner:196

3. APRSAF adopts its recommendations by consensus

THE GANDHIAN INTELLECT AND GERMAN ENCROACHMENT

MUKUL KRISHNA VYAS204 AND DEEKSHA JAIN205

THE INTERNATIONAL JURISPRUDENCE: UNDERSTANDING THE LEGAL REGIME OF WELL

INTERNATIONAL TREATIES UNDER TRIPS

EUROPEAN REGIME OF WELL KNOWN MARKS

WIPO JOINT RECOMMENDATION

KHADI AS A WELL-KNOWN MARK