The right of ‘access to justice’ stands meaningless if individuals merely do possess such right without any mechanism for the vindication of the same. The effective access to justice enunciates the exploration of wide variety of reforms within its notion and the reasons for such exploration are not much in dispute. Congestion in courts, lack of adequate manpower and the resources and the consequent procedural delay at every step of the hierarchy of the court are some of the major factors which are ailing the formal legal system of the traditional court room litigation. On the other hand, the globalization of economy and the complexities of modern commercial transaction demand speedy and effective mechanism for the speedy redress of the allied disputes. With the Indian economy’s massive strides towards becoming a global force, bolstering the dispute resolution has been one of the top priorities for the policy makers given its direct impact on ‘the ease of doing business’ in India. To cope with the insurmountable challenge of arrears, the use of private and informal dispute resolution mechanism which is known as Alternative Dispute Resolution (ADR) hails as one of the most important attributes to the said exploration of various reforms. Within the stretches of ADR mechanism better and faster ways are being developed to settle disputes at every sec of the clock. One such way making its growth in the world of dispute resolution it the advanced and technical method of Online Dispute Resolution (ODR). From smart phones to artificial intelligence technology is reaching for progressive ways of communication and as disputes arises in course of these communications what can be a better way of resolving them than using a different algorithm, a different view of the same technology.

2. ONLINE DISPUTE RESOLUTION (ODR)

Online Dispute Resolution mechanism is a modern day ADR technique which uses internet to resolve disagreements between two parties. No legislation defines ODR in any specific terms it is only understood as a technique which channelize dispute settlement in cyberspace. Farah defined ‘Online Dispute Resolution’ to mean utilizing information technology to carry out alternative dispute resolution[1]. Schiavetta explained that the online dispute resolution comprises of a process to resolve dispute exclusively online and also other dispute resolution process that use internet[2]

In its inception it was only considered as a medium for solving virtually originated disputes but now ODR is used in case of traditional offline disputes also. Thus, the horizon of the methodology has expanded with the change in time. The idea of ODR was first published in a series of online articles by VirtualCourthouse in 1996.[3] According to Professor Ethan Katsh and professor Janet Rifkin, who are considered as the pioneers of the concept the structure of ODR stands on three essential factors, namely convenience, trust and expertise.[4] As the entire process of solving disputes online occurs in an intangible framework at times of devoid of even slightest physical interference, it demands a higher degree of vigilance than usual ADR methods.

3. HISTORY OF ODR

Not only has the development of society and technology magnified the complexities of human life they also aid in eliminating the same by providing effective means. Thus, by invention of World Wide Web in 1989 and the appearance of first Internet Service Provider in 1992, online dispute resolution mechanism found its way into the world. Professor Ethan Katshis the leading researcher and developer of this concept. From 1997 to 1999, he had mediated a variety of disputes online, involving domain name/trademark issues, intellectual property conflicts, disputes with Internet Service Providers, and others. He also supervised a project with the online auction site eBay, in which he mediated over 150 disputes in two week period. He went on to the co-founded Disputes.org, which later worked with e-Resolution to become one of the four providers accredited by ICANN to resolve domain name disputes.Along with Professor Rifkin he wrote Online Dispute Resolution: ResolvingConflicts in Cyberspace (2001), the first book about ODR and personified technology as a “Fourth Party” in Online Disputes.[5]

In 1996, the National Centre for Automated Information Research(NCAIR) sponsored the first conference devoted to ODR,[6] and funding from it was used to launch the few significant ODR projects, the Virtual Magistrate, the Online Ombudman’s Office at the University of Massachusetts and a number of ODR project at the University of Maryland.Virtual Magistrate and Online Ombudman’s office resolved matters of e-defamation and website copy right infringement.[7]Later the Hewlett Foundation with the aim to evolve ODR provided grant to the Universityof Massachusetts to establish the Centre for Information Technology and DisputeResolution (later the National Centre for Technology and Dispute Resolution). It organised Cyberweek, an all-online conference that enabled over fourhundred persons from many different countries to engage in discussions about ODR.[8]In 2002 and 2003 in Geneva, Daewon Choi, an official of the United Nations Economic Commission for Europe conducted the first International ODR Forum. Since then each year Professor Katsh has chaired it in Melbourne (2004), Cairo (2006), Hong Kong(2007), Victoria (Canada) (2008), Haifa (Israel) (2009), Buenos Aires (2010), Chennai (India) (2011), Prague (2012), Montreal  (2013),  Silicon Valley (2014), New York (2015), Hague (Beijing) (2016) andParis (2017).[9]

International front has witnessed extensive development in the field of ODR. The United Nation Commission on International Trade Law lays down adequate conditions for enhancement of ODR. UNCITRAL finalized and adopted the Technical Notes on ODR at its forty-ninth session in 2016. Although the notes are non-binding, it takes the form of a descriptive document reflecting quintessential elements of the mechanism.[10]

4. REASONS WHY ODR IS NEEDED

There stands no doubt as to the necessity of ODR. The ODR mechanism promises to enable ADR to become more efficient, faster, and less expensive.[11]Given the affordable technological infrastructure abundantly available, it is certain that ODR would be the preferred medium for dispute resolution even when both the parties reside in the same city. This is so because in most metropolitan cities, due to the traffic during peak hours, it takes an average of an hour and a half to get into the heart of the city. Considering that it could take an equal amount of time to get back, a party would be well off attending the said meeting via video-conference so that he saves that extra fifty per cent time that he would have spent in traffic. Furthermore, his presence may not be required for all the time in which case he can conveniently log off and, being a businessman, get down to negotiating some or the other deal instead of negotiating his vehicle through the traffic for another hour or so. A party even saves on legal costs as lawyers, and especially counsels, charge by the hour and hence they could be engaged for a shorter duration if the proceedings are conducted online. And if the neutral and/or the other party are in another city, this would save also the cost of transport and accommodations. The additional benefit of conducting proceedings online is that this affords the parties to engage the services of experts in any field who, due to their various other commitments, would not be available thanks to the time-consuming efforts of attending an off-line meeting.

ODR may also assist in addressing a situation arising out of cross border e-commerce transactions, namely the fact that traditional judicial mechanisms for legal recourse may not offer an adequate solution for cross-border e-commerce disputes.[12]

5. ESSENTIAL REQUISITES FOR APPLICATION OF ODR

Application of ODR requires the presence of certain crucial components such as existence of advance informational technology, trained expert professionals, user friendly interface of online modules and maintenance of privacy of the disputants.Besides these components the generic principles of affordability, accessibility, infrastructure, flexibility and transparency forms the basic structure of the mechanism.The components and the principles open up for empirical research to envision a triangle of convenience, expertise and trust. These three factors assist in attracting users and services over time. The degree of factor may vary according to the usage. In respect of ODR the triangle shall have a longer convenience side.[13] Unlike other ADR mechanisms ODR ought to be simpler, faster and more efficient, in order to be able to be used in a “real world setting”, including that it should not impose costs, delays and burdens that are disproportionate to the economic value at stake.[14]

1. Binding Agreement

An agreement stipulating the mutual consent of the parties to settle any future matter by course of ODR technique shall consists of essentials of a valid contract as per Section 10 of the Indian Contract Act. It should be contracted by persons capable of contracting; to be formed for legal consideration with mutual consent and should be valid in the eyes of law. Thus, the want of mutual consent for invocation of ODR process is such that without it all orders of any ODR institution will stand invalid. With respect to Indian jurisprudence there are no concrete guidelines for online dispute settlement in any statute. Although the technique can be brought to use by referring to definite sections of Arbitration and Conciliation Act and Information Technology Act, lack of desired laws leaves way for contracts to provide sanction to ODR.

1. Determining Jurisdiction

Jurisdiction defines the limits of an adjudicating authority. In case of conduction of ODR, determination of jurisdiction gives apprehension of its decision.The place of occurrence of dispute directs the application of international and domestic laws, understanding of the facts and nature of the settlement process. In mid-1990s the Courts, were struggling with the jurisdictional questions such as where an event occurred if parties were in different places and were interacting online.[15] Expansive legalisation of domestic laws and profound judgements of the Indian Courts have not only solved this riddle but have also accepted the cyber world as a real place. ODR service providers are obligated to disclose the jurisdiction, where complaintsagainst the ODR provider can be brought, and any relevant jurisdictionallimitations[16]

1. Transparency

Settlement of a dispute through an ODR institution is a matter of availing services from a provider. The provider cannot take advantage of the virtual world to commit fraud or cause unwanted loss to its clients. The underlining doctrine of accessibility makes the principle of transparency a critical aspect of ODR. All information and disclosures, regardless of form, should be accurately and completely stated, should be presented as clearly and simply as the substance permits in identifiable and accessible formats, and should present the most important points in an appropriately conspicuous manner. It should be printable and able to be downloaded electronically.[17] Indian courts are made a court of record for the sole reason of maintaining transparency and making the orders and judgements available to the masses.

1. Privacy

The unending debate of privacy of an individual gets complicated with every day evolving technology. The Apex Court has held privacy to be a matter of personal liberty within Article 21 of the Indian Constitution. In the most recent case on privacy[18] the bench, headed by Chief Justice and eight other judges unanimously declared that individual privacy is a “guaranteed fundamental right”. The judgement makes privacy an indispensable ingredient of day’s world. ODR procedures are to work retaining the concept of preservation of one’s privacy. They are to balance the contrary and collateral fundamentals of transparency and privacy.  Purpose of ODR is to settle disputes and not to create one by infringing an individual’s privacy. The ODR modules should be accurate and specific as to what they disclose and what they do not. Minimum level of information likecontact and organizational information, terms and conditions anddisclaimers for the service, explanation of services/ADR processesprovided any pre-requisites for use of service like geographical location ormembership[19] should be mentioned distinctively. It is required that the ODR organisations state their confidentiality policy meticulously.

1. Advanced Technology

ODR providers should be equipped with the latest and the apt technology to keep the process straightforward. The providers should disclose all relevant facts as to the technology they use. Its flaws, any history of mishappening or data leakage should be communicated by them. The technology should be accessible to persons of all language and low level of literacy, it should be affordable, it should be secured and apposite in preserving the privacy of the parties.

1. Expert and Trained Professionals

The ODR providers should be well trained professionals. They are to be experts in both the fields of dispute management and information technology.Even though internet has become an everybody’s thing and have connected masses from all countries and sectors, it is viewed with sceptical eyes and requires vigilance at every step.Without a specialist’s direction, it is difficult to track and get the know-how of everyday development of technology and to understand the complexities of law. The ODR providers are to provide all material details of their members, their relationship with other organisations of similar or dissimilar nature. They are to create a team consisting of arbitrators, mediators and counsellors; their eligibility, background and affiliations to any interested party must be disclosed by the providers. The providers should appoint neutral arbitrators to the disputes and make desired research in the history of the appointed members and the disputant parties to check for any affiliations. They should disclose the steps they take to require neutrals to fulfil their responsibilities promptly, maintain communication with the parties, and comply with the stated ethical guidelines. Also, what steps can the participant take to file complaints for neutrals’ failure to comply with the ethical requirements.[20]

6. TYPES OF ODR MECHANISM IN USE

ODR can involve varied methods of dispute resolution including Negotiation, Conciliation , Mediation, Arbitration and hybrid mechanisms including Last offer arbitration, Medola, Mini trial, Med Arb and Neutral Evaluation. ODR may adopt either adjudicatory or non-adjudicatory process. An example of an adjudicatory process is an arbitration where the award passed by the arbitrator is binding on both parties. To the contrary, in a non-adjudicatory process, the principal aim is to arrive at a settlement of the disputes between the parties without deciding on the merits of the matter.

1. CONSENSUAL
2. Automated Negotiation

Automated negotiation relates to those methods in which the technology takes over (aspects of) a negotiation. This is a negotiation process designed to determine economic settlements for claims in which liability is not challenged. There are two forms of automated negotiation, double blind bidding, which is a method for single monetary issues between two parties, and Visual Blind Bidding, which can be applied to negotiations with any number of parties and issues.

Automated negotiation has proven to be particularly successful with insurance compensations and commercial activities. It is also a valuable tool for lawyers because they too can use it without revealing what they’re willing to accept (unless an agreement is reached) and more importantly, without waiving their right to access the court, in the case that the negotiation is unsuccessful.

Thus, ODR is useful for resolving brick and mortar disputes that arise in businesses, insurance companies and municipalities, who are finding that ODR saves them money and time when dealing with B2C disputes.[21]

1. Assisted negotiation

In assisted negotiation the technology assists the negotiation process between the parties. The technology has a similar role as the mediator in mediation. The role of the technology may be to provide a certain process and/or to provide the parties with specific (evaluative) advice.

Mediators use information management skills encouraging parties to reach an amicable agreement by enabling them to communicate more effectively through the rephrasing of their arguments. Conciliation is similar to mediation, but the conciliator can propose solutions for the parties to consider before an agreement is reached. Also, assisted negotiation procedures are designed to improve parties’ communications through the assistance of a third party or software. In fact, it has been argued that assisted negotiation, conciliation, and even facilitation, are just different words for mediation.[22] The major advantages of these processes, when used online, are their informality, simplicity and user friendliness.[23]

• Expedient Non-Adjudicative Online Resolution

Another form of alternative dispute resolution prioritizes expedience and dispenses with adjudication all together, in recognition of the litigants’ desire to simply dispose of the matter as quickly as possible. By removing any hint of adjudication, services (e.g., One Day Decisions) “fast track” a version similar to blind bidding which is restricted privately to the two parties and an algorithm determines a fair value to be accepted by each party. Unlike other services, once accepted by both parties, the settlement amount is applied to the issuance of a Certificate of Final Resolution which both parties accept as irrevocable proof of resolution and final settlement. By avoiding adjudication, expedient non-adjudicative online resolution saves litigants time in court, time away from work and other fees and expenses, while protecting each from ancillary damage: The winning party generally collects more of his disputed amount and the losing party suffers no credit damage from having a judgment entered against him. Expedient Non-Adjudicative Online Resolution is generally utilized in cases that might otherwise be heard in small claims or limited civil matters.

1. ADJUDICATIVE
2. Online Arbitration

Arbitration is a process where a neutral third party (arbitrator) delivers a decision which is final, and binding on both parties. It can be defined as a quasi-judicial procedure because the award replaces a judicial decision. Arbitrators can be current or former trial judges, but that is not a requirement. However, in an arbitration procedure parties usually can choose the arbitrator and the basis on which the arbitrator makes the decision. Furthermore, it is less formal than litigation, though more than any other consensual process. It is often used to resolve businesses’ disputes because this procedure is noted for being private and faster than litigation. Once the procedure is initiated parties cannot abandon it, unless they both agree to discontinuing it (e.g. when they reached a settlement – although usually the settlement will be communicated to the arbitral tribunal and an award rendered on this basis). Another feature of arbitration is that the award is enforceable almost everywhere due to the wide adoption of the 1958 ‘New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards’.[24] Moreover, arbitral awards prove frequently easier to enforce than court decisions from overseas.

The majority of legal studies on online arbitration agree that, neither law, nor arbitral principles, prevent arbitration from taking place online.[25] However, there may be several aspects in online arbitration that need to be regulated. Although online arbitration seems admissible under the New York Convention and the E-Commerce Directive, this is arguably an assumption by most commentators, rather than a legal statement.[26] Since arbitration is based on a contractual agreement between the parties, an online process without a regulatory framework may generate a significant number of challenges from consumers and other weaker parties if due process cannot be assured. Currently, most arbitration providers allow parties to carry out online only part of the arbitration process, e.g. parties may download claim forms, the submission of documents through standard email or secure web interface, the use of telephone hearings, etc.[27]  Other providers conduct their proceedings exclusively online, either by email or on a dedicated web platform.[28] The main challenge for online arbitration is that if judicial enforcement is required then it partly defeats the purpose of having an online process. Alternatively, some processes have developed self-enforcement mechanisms such as technical enforcements, black lists and trustmarks.

7. DEVELOPMENT OF ODR IN INDIA

Various factors support development of ODR system in India such as:

• Flexibility in adjudication by way of online process/ choice of procedure- The Arbitration & Conciliation Act, 1996 The subtle difference in the 1996 Act with regard to the provisions relating to conciliation proceedings as opposed to arbitration proceedings is that the 1996 Act does not restrict the application of its provisions to conciliation proceedings taking place in India only. This provision hence affords parties the flexibility to hold their proceedings anywhere, even in cyberspace.
• Electronic records and signatures- Information Technology Act, 2000 The Information Technology Act, 2000 Act (the 2000 Act) was enacted with a view to facilitate and encourage e-commerce and hence gives legal recognition to electronic records and digital signatures. The enactment of this Act has also brought with itself amendments to several other Acts. It is a law meant to be “applicable to alternatives to paper based methods of communication and storage of information”.
• Video conferencing– In a recent case[29] it was held that video-conferencing could be resorted to for the purpose of taking evidence of a witness. Addressing the various submissions made before it, the apex Court stated that “Virtual reality is a state where one is made to feel, hear or imagine what does not really exist. Video-conferencing has nothing to do with virtual reality. Video-conferencing is advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence.” “This is not virtual reality, it is actual reality.”^[30] Further the Court observed “when an effective consultation can be achieved by resort to electronic media and remote conferencing, it is not necessary that the two persons required to act in consultation with each other must necessarily sit together at one place unless it is the requirement of law or of the ruling contract between the parties”. The IT Act enumerates that electronic records and signatures can be introduced as evidence and given legal recognition under the Indian legal system ( S. 4, 5 & 65-B).  In State of Maharashtra vs. Dr. Praful B. Desai (2003 4 SCC 601), the Supreme Court acknowledged the use of video conferencing to record witness statements. Therefore, the submissions and the proceedings can take place online.
• Usage of internet– In yet another decision[31] in which use of available technology has been given a real boost, the Supreme Court held that “Technological advancement like fascimile, Internet, e-mail, etc. were in swift progress even before the Bill for the Amendment Act was discussed by Parliament. So when Parliament contemplated notice in writing to be given we cannot overlook the fact that Parliament was aware of modern devices and equipment already in vogue.”^[32]
• Written online agreement-For this purpose, one needs to read the Indian Arbitration and Conciliation Act, 1996 (Arbitration Act) with the Information and Technology Act, 2000 (IT Act). A few issues are considered below to demonstrate the point. (1) Arbitration agreement shall be in writing: Section 7(3) of the Arbitration Act provides that the arbitration agreement shall be in writing. However, if the parties agree online to refer the matter to an online arbitration through an ODR service provider, the question arises as to whether such an online agreement will be valid in law. Presuming that both parties admit that such an online agreement was made, it will have the sanction of law due to operation of section 4 of the IT Act. By reading section 4 of the IT Act into section 7(3) of the Arbitration Act, such an online agreement will be a valid one in the eyes of law. The same goes for written submissions, if any, made by the parties online.^[33]
• Provision for e-award-Award to be in ‘writing’ and ‘signed’; Section 31(1) of the Arbitration Act requires the arbitral award to be in writing and signed by the members of the arbitral tribunal. As far as the ‘writing’ requirement is concerned, that is answered by section 4 of the IT Act. As regards the ‘signature’ requirement, section 5 of the IT Act provides that digital signature would have the same legal effect as a paper signature.^[34]
• There have been instances where the parties have decided upon arbitration through emails (Shakti Bhog Foods Ltd. V. Kola Shipping Ltd., (AIR 2009 SC 12); Trimex International FZE Ltd. v. Vedanta Aluminium Ltd.(2010) 3 SCC 1). Finally, when the award is declared, as per S.31 of Arbitration Act, it can be exchanged via emails by sending scanned copies. The original copy can be sent later via post. This completes the procedure and the only thing left is the enforcement of the award, a decree for which can be easily obtained in a court. Therefore, the crux of the matter is that practicing ODR is perfectly valid in India. It is even being used currently by the National Internet Exchange of India (NIXI) for domain name dispute resolution. It is similar to traditional arbitration but the only difference is that it is conducted over the internet. Therefore, the law applicable to traditional arbitration is to be applicable to ODR also. Just as ADR is legal in India, so is ODR.^[35]

8. INTERNATIONAL RECOGNITION

Since the beginning of the 21st century, the use of the Internet has grown at a rate of 566.4% as a result of the rapid evolution of ICT.[36] Thus there is imminent need of introduction of ODR in our ADR system. ETHAN KATSH (a prominent name in the field of ODR) refers to this phenomenon of ODR, ‘a commerce revolution’.[37] Consequently, there has increase in the number of disputes arising from it carried out in cyberspace. Such online claims (Business to Business), B2C (Business to Consumer) (Consumer to Consumer) e-contracts. Therefore, it seems natural for all of them to be resolved in an online environment. When talking about disputes settled in cyberspace, we are in the land of ODR.[38]

Promoting the use of alternative methods of dispute resolution has been a focal point in European Union (EU) civil justice. As yet it has met with only limited success, although in some member states well-functioning ADR mechanisms are in place.[39] A directive of 2008 regulates a number of issues regarding cross-border mediation,[40] and in 2013, two related instruments were adopted to more actively enhance the use of ADR in both in cross-border and domestic consumer disputes.[41] The first one, a directive on consumer ADR, provides the legal frame-work obliging member States to enable consumers and traders to submit their disputes to ADR. (It applies to C2B disputes, and only where national law permits B2C disputes.) It outlines the principles of ADR (including impartiality, transparency, effectiveness, fairness, and liberty), and provides rules on information to the consumer and on cooperation among ADR entities.[42]

The European Commission has developed an ODR platform (single point of entry) pursuant to this regulation that has been operational since February 2016.[43] This platform links to the national ADR entities that are authorized in accordance with the directive on consumer ADR. The main functions of the ODR platform are to provide an electronic complaint form; to inform the respondent; to identify the competent ADR entities and transmit the complaint to the agreed entity; to offer a free-of-charge electronic case management tool; to provide translations; to provide an electronic form to the ADR entity to submit information and the result of the ADR; to provide information; and to generate data.[44] Each member State has designated an ODR-contact point, hosting at least two advisers, who—particularly in cross-border cases—provide assistance in the use of the ODR platform.[45] By means of this platform, consumers can, free of charge, submit their complaints online by filling out a standard form.[46]The completed complaint form will be processed and transmitted to the trader, informing the latter that parties have to agree on ADR and on the competent ADR entities. The trader should indicate within 10 days whether he or she is obliged to use a specific ADR entity (e.g., for a specific branch of business) or is willing to accept one of the identified ADR entities.[47] If parties agree to ADR and on the ADR entity, the complaint will be automatically transmitted to the ADR entity. If this entity agrees to deal with the dispute, it must finalize the dispute within 90 days, and will communicate the outcome through the platform.[48]

9. CONCLUSION

The late Neil Postman described the effects of technological change as follows:

Technological change is a trade-off. I like to call it a Faustian bargain. Technology give and technology take away. This means that for every advantage a new technology offers, there is always a corresponding disadvantage.Thus, the same technology which supports the development of all aspects of one’s life, also bigots disputes and also provide effective means for settling the same. Advantages like affordability, and connectivity of technology forms primary source of ODR.

Settlement of disputes by way of internet has gained immense popularity in developed nations like Europe and USA and with International sanctions and guidelines future of ODR is exceptional. The day is not far when ODR, as a way of arbitration will soon become a necessity for the world. Information technology, society, human relations, human interactions, commercial activities and laws a step higher in all these fields is a step towards ODR. With respect to India the trend of arbitration has seen considerable growth in past few years. Deeper research in the field of arbitration and other ADR mechanisms are been encouraged. Legal fraternity is working day and night to mitigate flaws in the current system and to develop upgraded methods for harmonious working of the society. In backdrop of such developments and followance of doctrine of “justice delayed is justice denied” by the courts; ODR is indeed the new face of arbitration in India.

END NOTES :

[1]Farah C, Critical analysis of online dispute resolution:optimist, realist and the bewildered, 11(4) COMPUTER TELECOMMUNICATIONS LAW REVIEW,123-128.

[2]Schiavetta S., Relationship between e ADR and Article 6 of European Convention of Human Rights pursuant to case law of European Court of Human Rights, 2004 (1) JOURNAL OF INFORMATION LAW AND TECHNOLOGY

[3]What You Should Know About Online Dispute Resolution Hon. Arthur M. Monty Ahalt (ret.)

[4]Katsh E, Online Dispute Resolution : some implications have emergence of law in cyber space, v. 10 n. 3LEX ELECTRONICA, 2006, http://www.lex-electronica.org/articles/v10-3/katsh.htm

[5]Ethan Katsh, ODR.INFO The National Centre for Technology and Dispute Resolution, http://odr.info/ethan-katsh/

[6]<www.odr.info/ncair>

[7]See Centre for Technology and Dispute Resolution, Online Ombud’s narrative 1 :website developer and the newspaper at www.ombuds.org/narrative 1.html

[8]<www.odr.info>.

[9]<www.odr.info>.

[10] UNCITRAL Technical Notes on Online Dispute Resolution

[11]Prathamesh D. Popat, Online Dispute Resolution In India, Proceedings of the UNECE Forum on ODR 2003, http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan021307.pdf

[12]UNCITRALTechnical Notes on Online Dispute Resolution

[13]Ethan Katsh& Colin Rule , What We Know And Need To Know About Online Dispute Resolution, 67 S.C. L. REV. 329 (2016)

[14]UNCITRALTechnical Notes onOnline Dispute Resolution

[15]See, for example, Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997) and Bensusan Restaurant Corp. v. King, 126 F.3d 25 (1997).

[16]DevashishBharuka, Online Alternative Dispute Resolution, THE INDIAN COUNCIL OF ARBITRATION, http://www.icaindia.co.in/icanet/quterli/jan-march2002/ICA1.htm

[17]Ibid.

[18]Justice K S Puttaswamy (Retd.), and Anr. V. Union Of India And Ors., Writ Petition (Civil) No. 494 of 2012

[19]DevashishBharuka, Online Alternative Dispute Resolution, THE INDIAN COUNCIL OF ARBITRATION, http://www.icaindia.co.in/icanet/quterli/jan-march2002/ICA1.htm

[20]Ibid.

[21] J. Krause, Settling it on the Web. New Technology, Lower Costs Enable Growth of Online Dispute Resolution” AMERICAN BAR ASSOCIATION JOURNAL (October 2007)

[22]P. Jacobs, Mediation Now and Then, M. P. BARBEE, NEWSLETTER, MEDIATION, INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISION, p.14 (July 2007)

[23]MOTION P., ARTICLE 17 ECD: ENCOURAGEMENT OF ALTERNATIVE DISPUTE RESOLUTION. ON-LINE DISPUTE RESOLUTION: A VIEW FROM SCOTLAND,  THE NEW LEGAL FRAMEWORK FOR E-COMMERCE IN EUROPE 145 (Oregon and Portland ed., Hart Publishing, 2005)

[24]  The New York Convention has currently more than 150 signatories. See http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration.html; Cf. J. M. Matthews, Consumer Arbitration: Is it Working Now and Will it Work in the Future?  79 THE FLORIDA BAR JOURNAL  1 (2005)

[25] E. KATSH, AND J. RIFKIN, ONLINE DISPUTE RESOLUTION: RESOLVING CONFLICTS IN CYBERSPACE (San Francisco, Jossey-Bass) (2001)

[26] R. Morek, The Regulatory Framework for Online Dispute Resolution: A Critical View, 38 Tol. L. Rev. 165. (2006)

[27] L. Ponte and T. Cavenagh, Cyberjustice, Online Dispute Resolution for E-Commerce (New Jersey, Parson Prentice Hall, 2005) p. 84; European Commission, SANCO, The Study Centre for Consumer Law, Centre for European Economic Law KatholiekeUniversiteit Leuven, Belgium, “An Analysis and Evaluation of Alternative Means of Consumer Redress other than Redress through Ordinary Judicial Proceedings” The United States National Report, Leuven, January 2007. p. 7 Currently the AAA provides Webfile and Neutrals’ eCentre web-based platform to parties and neutrals for the management of the procedures. Cf. <www.adr.org>; See B. Davis “Symposium Enhancing Worldwide Understanding Through Online Dispute Resolution: Walking Along in the Mission” 38 (2006) U. Tol. L. Rev. 2.

[28]<http://www.anywherearbitration.com/how-it-works.html>

[29]State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601

[30]ibid

[31]Sil Import, USA v. Exim Aides Exporters, Bangalore (1999) 4 SCC 567

[32]ibid

[33]DevashishBharuka, Online Alternative Dispute Resolution, THE INDIAN COUNCIL OF ARBITRATION, http://www.icaindia.co.in/icanet/quterli/jan-march2002/ICA1.htm

[34]Ibid.

[35]The Legality of ODR in India,THE ODR BlOG, http://blog.odrways.com/the-legality-of-odr-in-india/

[36]Internet Usage Statistics: The Internet Big Picture: World Internet Users and Population Stats, Internet World Stats: Usage and Population Statistics, INTERNET WOLD STATS, (June 30,  2012), http://www.internetworldstats.com/stats.htm (last visited Sept. 28, 2013

[37] Ethan Katsh, Online Dispute Resolution: Some Lessons from the E-Commerce Revolution, 28 N. Ky. L. Rev. 810, 821

[38]María Mercedes Albornoz and Nuria González Martín, Feasibility Analysis of Online Dispute Resolution in Developing Countries, Vol. 44, No. 1 (Fall 2012) THE UNIVERSITY OF MIAMI INTER-AMERICAN LAW REVIEW 39-61 (2012)

[39]See CHRISTOPHER HODGES, CONSUMER ADR IN EUROPE (Iris Benöhr and Naomi Creutzfeldt-Banda, eds., Oxford: Hart Publishing, 2012).

[40] Directive 2008/52/EC of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters, Official Journal 2008, L 136/3.

[41] Directive 2013/11/EU on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR), Official Journal 2013, L 165/63; Regulation (EU) No 524/2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR), Official Journal 2013, L 165/1. For an overview of these instruments, see Michael Bogdan, “The New EU Regulation on Online Resolution for Consumer Disputes,” Masaryk University Journal of Law and Technology 9:1 (2015) at 155.

[42] XANDRA E KRAMER, ACCESS TO JUSTICE AND TECHNOLOGY: TRANSFORMING THE FACE OF CROSS-BORDERCIVIL LITIGATION AND ADJUDICATION IN THE EU, (University of Ottawa Press) (2016)

[43]https://webgate.ec.europa.eu/odr/.

[44]Article 5(4) Regulation on consumer ODR.

[45]Article 7 Regulation on consumer ODR.

[46]Article 8 Regulation on consumer ODR.

[47]Article 9 Regulation on consumer ODR.

[48]Article 10 Regulation on consumer ODR.

Author : HARSHITA RAJNISH & SHREET RAJ JAISWAL FACULTY OF LAW, LUCKNOW UNIVERSITY, LUCKNOW

The post “ONLINE DISPUTE RESOLUTION MECHANISM:EXPANSION OF ALTERNATE DISPUTE RESOLUTION MECHANISM IN INDIA” appeared first on Legal Desire Media and Insights.

Cambridge Analytica LLC (CA) is a secretly held organization that consolidates information mining, information business, and information investigation with key correspondence for the electoral process. It was made in 2013 as a branch of its British parent organization SCL Group to take an interest in American legislative issues. Cambridge Analytica is at the eye of a crisp information release contention as reports developed that the firm approached a large number of Facebook users’ personal data, which is utilized to recognize the identities of American voters and impact their conduct to help US president Donald Trump win decisions.

Facebook-Cambridge Analytica Scam: Here’s How it Helped Elect Donald Trump as US President

Cambridge Analytica starting in 2014 acquired information on 50 million Facebook users through implies that betrayed both the users and Facebook, the New York Times and London’s Observer announced, The information was gathered by an application created by a British scholastic, Aleksandr Kogan, the daily papers said. About 270,000 individuals downloaded the application and signed in with their Facebook certifications, as per Facebook. The application assembled their information and information about their companions, and after that Kogan passed the information to Cambridge Analytica, as indicated by both Cambridge Analytica and Facebook.

Cambridge Analytica said that it didn’t at first know Kogan disregarded Facebook’s terms, and that it erased the information once it discovered in 2015. Kogan couldn’t be gone after the remark. The information, however, was not erased, the two daily papers announced that Cambridge Analytica said that the assertion was not valid. Facebook said it was exploring to confirm the exactness of the claim.

Cambridge Analytica markets itself as giving shopper explore focused on publicizing and other information related administrations to both political and corporate customers. It doesn’t list its corporate customers yet on its site depicts them as including an everyday daily paper that needed to find out about its supporters, a ladies’ apparel image that looked for investigating on its clients and a U.S. auto safety net provider intrigued by promoting itself.

Watch: Govt. Of Singapore Minister K Shanmugam asks Simon Milner, Vice President of Public Policy for Asia-Pacific, whether Facebook has been frank and upfront about the data breaches in the Cambridge Analytica case. The exchange took place at the 22 March hearing of the Select Committee on Deliberate Online Falsehoods.

How CA helped in Bihar Assembly Pools?

CA on their website clearly mention the client case study as

CA was contracted to undertake an in-depth electorate analysis for the Bihar Assembly Election in 2010. The core challenge was to identify the floating/swing voters for each of the parties and to measure their levels electoral apathy, a result of the poor and unchanging condition of the state after 15 years of incumbent rule. In addition to the research phase, CA were tasked to organise the party base at the village level by creating a communication hierarchy to increase supporter motivation. Our client achieved a landslide victory, with over 90% of total seats targeted by CA being won.

The blame game starts BJP, Congress and Cambridge Analytica.

The Bharatiya Janata Party has dragged Congress into the debate blended by a London-based firm Cambridge Analytica, which is blamed for gathering private information from a huge number of Facebook profiles to impact and distinguish voter conduct.

BJP representative and Union Law Minister Ravi Shankar Prasad, in a public interview asked Congress president Rahul Gandhi to confess all on the issue as he doubted the gathering’s relationship with a “maverick information examination firm.”

• Economic Times report from October 2017 that uncovered that the Congress party had restricted in the questionable organization to run their 2019 and named it as their ‘Brahmastra’ against Prime Minister Narendra Modi.
• “As indicated by media reports, Cambridge Analytica CEO Alexander Nix has met a few restriction pioneers to plan discretionary procedure for the United Progressive Alliance (UPA) in the following Lok Sabha elections. The organization has made an introduction to the Congress in which it nitty gritty the methodology to target voters on the web,” the report said.
• Comparable proposals were made in a Hindustan Times report in an article distributed two days back, wherein it asserted that the firm has its eyes set on charming government officials in South Asia. Truth be told the report guaranteed that the firm was in contact with both Congress and the BJP.

“The firm, Cambridge Analytica (CA), and its India accomplice, Oveleno Business Intelligence (OBI) Private Limited, have addressed both the Congress and the BJP for a conceivable cooperation for their 2019 Lok Sabha elections it has had chats with the Congress and the BJP, with previous Sri Lankan president Mahinda Rajapaksa, who is making an offer to get re-elected in 2020, and with the Awami League, the decision party in Bangladesh, which is looking for re-race in 2019,” the Hindustan Times report said.

Mr Tyagi, in an interview to NDTV, said his firm had worked for the BJP in the 2012 Uttar Pradesh Assembly elections, and had done work for the Youth Congress in Jharkhand between 2010 and 2011.

Cambridge Analytica’s website says the company provided its services during the Bihar election in 2010 to a political party in India.

 “Our client achieved a landslide victory, with over 90 per cent of the total seats targeted by CA being won,” it says. The Janata Dal United-BJP alliance had swept those elections.

Moreover, the publicly available LinkedIn page of one of the directors of Ovleno, Himanshu Sharma, states that he “managed four election campaigns successfully for the ruling party BJP” and “achieved the target of mission 272”.

The start date for Mr. Sharma’s association with Ovleno is 2013.

In the memorandum of association of Ovleno states their “main objectives” of the company to be “competitive business intelligence research, investigate and provide surveillance services and market survey to the industries and organization.”

It further went on to say he helped in “confidentially maintaining the database to be provided constituency wise to BJP candidate(s) as an additional support for national elections and state elections of Haryana, Maharashtra, Jharkhand and Delhi”.

“…let me make it very, very clear, we fully support freedom of press, speech and expression; we fully support free exchange of ideas on social media. But any attempt, covert or overt, by social media, including Facebook, of trying to influence India’s electoral process through undesirable means will neither be appreciated nor be tolerated,” Ravi Shankar Prasad said in a Press Conference

Mark Zuckerberg has apologized for the Facebook Data Leak involving Cambridge Analytica on his timeline.

On March 17, 2018, Facebook announced that Cambridge Analytica was suspended for violating the company’s standards and practices. TechRepublic’s Dan Patterson was one of the early reporters to write about Cambridge Analytica during the 2016 campaign. Patterson spoke with CBS News about how the data firm could have harvested so many Facebook profiles. The interview has been added to this article.

Can the blame game be ever stopped?

This game of blame is ever ending in the existing political parties until and unless one parties is proved wrong generally. we dont choose better political parties we choose the less bad parties in India. BJP accusing congress but it seems BJP and JDU too had links.

The Reactions:

There was only only a work relation between my son amrish’s company and #cambridgeanalytics, there is no financialtransaction or sharesholding everything is open to probe. JDU also has no links with this neither did they promote us in 2010 polls: KC TYAGI,JDU(ANI)

Name of the company out in this matter is BJP client list, run by KC Tyagi’s son is involved and JD(U) is saying that we do not know anything: tejaswi yadav, RJD

As bjp’s popularity is going down they are challenging facebook’s owner that he can be summoned. Govt should tell us that if they have power why cant they summon nirav modi, lalit modi and vijay mallya? : Tejashwi yadav, RJD.

We are a ground research company closely working with various media houses & not undertake any project with #cambridgeanalytica related to social media ( especially facebook) : himanshu Sharma, Vice president, ovleno business intelligence.

We believe in ethics & legal system of india. We are not denying our association with SCL/ #cambridgeanalytica (CA) : Himanshu Sharma, Vice president, ovleno business intelligence.

JDU has no relation with #cambridgeanalytica, neither has its CEO ever met nitish ji nor me. In case JDU is a socialist outfit and we step away from such things, except for prashant kishore ji helping us during last assembly polls : KC TYAGI, JDU.

A big blow to Right to Privacy

The ethical and moral dimension of the ongoing scandal is that: Should a British company be able to fly into an already heated political context halfway around the world and heavily influence political discourse for profit? Nix himself acknowledged in an interview with Tech Crunch last year that CA was well aware of the potential consequences of interfering in the Kenyan election. Shouldn’t there be consequences for a corporation that riles up dangerous ethnonationalist rhetoric purely for profit and then gets to leave without having to deal with the fallout? For CA, the Kenyan election was a revenue stream. For Kenyans, it was life or death. Shouldn’t some things be sacred?

The political consulting problem is more complex because the solution lies in changing the political culture around the world. It’s about destroying the idea that it’s okay to leave moral values behind when flying into developing countries to tilt the balance of political power towards tyranny. It lies in part in enforcing laws that restrict the way political parties in the developing world spend money.

Simply calling this irony doesn’t do the situation justice: a political party went on a crusade against neo-colonial interference while paying a British company to package and propagate that message. And the damage is much deeper than that.

The post Explained: How Cambridge Analytica & it’s client Political Parties infringed our Right to Privacy? appeared first on Legal Desire Media and Insights.

Arbitration may be defined as “the process by which a dispute or difference between two or more parties as to their mutual legal rights and liabilities is referred to and determined judicially with binding effect by the application of law by one or more persons instead of a court of law”.[1] The objective of arbitration is to provide fair and impartial resolution of disputes at a fast rate by minimizing the expense and at the same time, it allows freedom to the parties to agree upon the manner in which their disputes should be resolved, subject only to safeguards imposed in public interest.

In India, Arbitration as a mode of resolution of disputes came to be adopted from the medieval times when trade and commerce between traders in India and outside started growing.[2] Prior to 1996, in India, laws governing arbitration were encompassed in three enactments; The Arbitration Act, 1940 contained general provisions pertaining to arbitration; The Arbitration (Protocol and Convention) Act, 1937 and The Foreign Awards (Recognition and Enforcement) Act, 1961 dealt with the enforcement of foreign arbitration awards. This factor and the interpretational interplay between three different enactments ensured that simplicity, speed and efficiency, were never going to be there.

Post 1996, following much persuasion from the various bodies of trade, the Arbitration & Conciliation Act, 1996 was promulgated. Commendably, the Act was based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law, which was recommended by the General Assembly of the United Nations to all countries. The influence of the UNCITRAL Model Law ensured some uniformity of the Act with arbitration worldwide, which was not entirely unwelcome as the Indian economy was undergoing a sea-change following the crisis of 1991.

Today, Arbitration is a very popular mode of alternate dispute resolution in the commercial world and one can find an arbitration clause incorporated in the majority of business contracts.Parties are entitled to choose the form of arbitration, which they deem appropriate in the facts and circumstances of their dispute. This necessarily involves the consideration and evaluation of the various features of both forms of arbitration and this can be a daunting task, as both forms have their own merits and demerits.

  TYPES OF ARBITRATION[3]

Arbitration, as mentioned above, can be divided into two basic forms, Ad-Hoc Arbitration and Institutional Arbitration.

1. AD-HOC ARBITRATION

Ad-hoc arbitration refers to ‘arbitration where the parties and the arbitral tribunal will conduct the arbitration according to procedures which will either be agreed by the parties or, in default of agreement, laid down by the arbitral tribunal at the preliminary meeting once the arbitration has begun. However, there are different sets of rules available to parties who contemplate arbitration, including the rules of their own trade associations.’[4]

A peculiarity that came about was that in an arbitration consisting of three arbitrators, each party would appoint one arbitrator and the two arbitrators would jointly appoint the presiding arbitrator. By custom, the two arbitrators would only appoint a presiding arbitrator who was senior to both and prefer to appoint retired Chief Justices of India. Parties mostly prefer to appoint retired judges of the High Court or the Supreme Court, depending on, amongst other things, the quantum of the claim. Nowadays, given the huge demand for such limited senior judges, parties are often faced with a scenario where the dates between hearings could even be as long as one year, thus negating the entire concept of arbitration as a quick and efficient mechanism for dispute resolution.[5]

2. INSTITUTIONAL ARBITRATION

Institutional arbitration refers to ‘the administration of arbitration by an institution in accordance with its rules of procedure’. The institution provides appointment of arbitrators, case management services including oversight of the arbitral process, venues for holding hearings, etc. A large number of well-known and internationally recognized institutional arbitration centers such as the International Chamber of Commerce, the London Court of International Arbitration and the Permanent Court of Arbitration  have opened centers in India. Presently there are over 35 arbitral institutions in India, which are domestic, international arbitral institutions, arbitration facilities by PSUs, trade and merchant associations, and city-specific chambers of commerce and industry. Many have their own rules and some follow the arbitration rules of the UNCITRAL.

In an Institutional Arbitration, the arbitration agreement designates an arbitral institution to administer the arbitration. The parties then submit their disputes to the institution that intervenes and administers the arbitral process as provided by the rules of that institution. The institution does not arbitrate the dispute. It is the arbitral panel which arbitrates the dispute.[7]

All Arbitral Institutions do not provide the same services. Some institutions of high reputation simply offer a set of rules and guidelines, and no other arbitral services, one such illustration is the London Maritime Arbitrators Association (LMAA), etc. There are other institutions, which provide rules and a roster of qualified arbitrators but are not involved in the appointment of arbitrators; an example is the Society of Maritime Arbitrators in New York.

Certain groups of institutions supervise the whole arbitration process from the notification to the defending party of the claimant’s request for arbitration to, and including, the notification of the arbitral award to the parties. For instance, the International Court of Arbitration of The International Chamber of Commerce.[8]

CHALLENGES FACED BY INSTITUTIONAL ARBITRATION IN INDIA

It is widely accepted that India prefers Ad Hoc Arbitration over Institutional Arbitration. Though various arbitral institutions have been set up in India, especially in the last five years, ad hoc arbitration continues to be the preferred mode of arbitration. Moreover, a large number of international arbitrations involving Indian parties are seated abroad and administered by foreign arbitral institutions.[9]Challenges to Institutional Arbitration in India, examines the reasons why Institutional Arbitrationis not the preferred mode of arbitration in India, with particular focus on: (1) misconceptions regarding institutional arbitration;

(2) lack of governmental support for institutional arbitration;

(3) lack of statutory backing for institutional arbitration; and

(4) problems with delays and excessive judicial involvement in arbitration proceedings.

1. Misconceptions Regarding Institutional Arbitration – There are several misconceptions relating to institutional arbitration that exist among parties. One of these is related to costs. Parties consider Institutional Arbitration to be substantially more expensive than ad Hoc Arbitration, primarily because of the administrative fees payable to arbitral institutions.[10]

This assessment is largely misconceived because:

(a) numerous arbitral institutions charge very reasonable fees;

(b) the use of an arbitral institution helps avoid disputes over procedural matters resulting in cost savings; and

(c) the costs of an ad hoc arbitration can easily exceed the costs of an institutional arbitration in case of additional procedural hearings, adjournments, use of per-hearing fees, litigation arising from procedural infirmities in ad hoc arbitrations etc.

Parties also often believe that institutional arbitration is inflexible because arbitral institutions follow rules that take away exclusive autonomy of the parties over arbitration proceedings. However, most arbitral institutions that exist in the international scenario have made an attempt to balance institutionalisation with party autonomy, they only keep those issues which deal with the legality and integrity of proceedings out of the purview of party autonomy.

These misconceptions could be due to a general lack of awareness regarding institutional arbitration and its advantages. This could also be due to the lack of initiative on the part of arbitral institutions to promote their work and facilities as well as on the part of lawyers to properly advise parties about the advantages of institutional arbitration. Even when there is awareness on the existence of institutional arbitration as an option, there is often the misconception that this option is only available to bigger businesses and/or high value disputes.

2. Governmental Support For Institutional Arbitration – One of the reasons for a weak Institutional Arbitration framework in India is the lack of sufficient governmental support for the same over the years. While the government is the most prolific litigant in India, it can do more in this capacity to encourage institutional arbitration. The general conditions of contract used by the government and public sector undertakings often contain arbitration clauses, but these clauses usually do not expressly provide for institutional arbitration.

Further, the government policy on arbitration requires a relook if institutional arbitration is to become the norm, particularly for disputes valued at large amounts. For instance, if the government, being the biggest litigant, were to adopt institutional arbitration as regular practice, the sheer volume of cases moving to arbitral institutions would provide a powerful impetus to Institutional Arbitration.

There have recently been discussions and initiatives on the part of some state governments as well to promote Institutional Arbitration, citing that it would be more organised and cost-effective.[11] One of the recommendations made by the Law Commission of India[12] was that trade and commerce bodies must establish chambers with their own rules. However, effectively, the government has so far focussed its attention on arbitration in general. To encourage Institutional Arbitration, special action aimed at the development of arbitral institutions is required.

3. Lack Of Statutory Backing For Institutional Arbitration – The Act has been arbitration-agnostic, with no provisions specifically geared towards promoting institutional arbitration. This is in contrast with jurisdictions like Singapore, where the Singapore International Arbitration Centre (“SIAC”) is the default appointing authority for arbitrators under the International Arbitration Act, 1994 (“IAA”) which governs international arbitrations.

In fact, one of the provisions of the Act, Section 29A which was inserted by the 2015 Amendments, is perceived to have made arbitral institutions wary of arbitrations in India. Section 29A provides for strict timelines for completion of arbitration proceedings. This has been criticised as unduly restrictive of arbitral institutions which provide for timelines for different stages of the arbitration proceedings.[13] The merits of such a view require examination in light of the endemic problem of delays plaguing arbitration in India.

4. Problems With Delays And Excessive Judicial Involvement In Arbitration – Delays in Indian courts and excessive judicial involvement in arbitration proceedings have resulted in India not being favoured as a seat for arbitration, and consequently stunted the growth of international arbitration (including institutional arbitration) in India. Parties often delay arbitration proceedings by initiating court proceedings before or during arbitration proceedings, or at the enforcement stage of the arbitral award. The high pendency of litigation before Indian courts means that arbitration-related court proceedings take a long time to be disposed of. The Commercial Courts Act sought to remedy this situation by setting up commercial courts at the district level or commercial divisions in high courts having ordinary original civil jurisdiction. These commercial courts / divisions hear arbitration matters involving commercial disputes, amongst other commercial matters.

However, an examination of the recent roster of the Bombay High Court, for example, indicates that commercial division judges often hear matters other than commercial matters, such as family law matters, juvenile justice-related matters etc.[14] If commercial division judges are tasked with hearing matters other than commercial matters, it would detract from the legislative intent of speedy disposal of commercial matters, including arbitration matters. Additionally, we noted that the rotation policy of these High Courts was also applicable to commercial division judges. An excessively frequent rotation might hinder the creation of specialist arbitration judges who are well-versed in arbitration law and practice. Indian courts’ tendency to frequently interfere in arbitration proceedings have also contributed to India’s reputation as an ‘arbitration-unfriendly’ jurisdiction.

It is a well-known fact that courts in India are generally interventionist when it comes to regulating arbitration proceedings, whether it is at an initial stage of arbitration proceedings (such as the appointment of arbitrators, referral of disputes to arbitration or grant of interim relief) or at the enforcement stage.[15] They have, despite good intentions and justifications, often misjudged the course to take, doing justice in the case at hand but laying down questionable precedent for the future.[16] Further, inconsistent judicial precedent on several crucial issues[17] has contributed to uncertainty regarding the law, with severe consequences for India’s reputation as a seat of arbitration.

In addition to the above-mentioned negatives of Institutional arbitration, following are the challenges of the institutional arbitration in India.[18]

1. Issues relating to administration and management of arbitral institutions.
2. Perceptions regarding arbitrators and expertise issues relating to resources and government support, lack of initial capital, poor and inadequate infrastructure, lack of properly trained administrative staff, lack of qualified arbitrators, etc.
3. Issues in developing India as an international arbitration seat.

HIGH-LEVEL COMMITTEE (HLC) TO REVIEW THE INSTITUTIONALISATION OF ARBITRATION MECHANISM IN INDIA

To address the challenges and shortcoming of the Institutional arbitration, a High-Level Committee (HLC) to Review the Institutionalisation of Arbitration Mechanism in India under Mr Justice B N Srikrishna was constituted in 2016. The committee submitted its report on 3 August, 2017.[19] In relation to institutional arbitration landscape in India the committee had put forward following views:[20]

1. Set up an autonomous body, styled the Arbitration Promotion Council of India (APCI), having representatives from all stakeholders for grading arbitral institutions in India.
2. The APCI may
   • recognize professional institutes providing for accreditation of arbitrators.
   • hold training workshops and interact with law firms and law schools to train advocates with interest in arbitration.
   • create a specialist arbitration bar comprising of advocates dedicated to the field.
   • A good arbitration bar could help in the speedy and efficient conduct of arbitral proceedings.

• Creation of a specialist Arbitration Bench to deal with such commercial disputes, in the domain of the Courts.[21]

1. Changes suggested in various provisions of the 2015 Amendments of the Arbitration and Conciliation Actwith a view to making arbitration speedier and more efficacious and incorporate international best practices (immunity to arbitrators, confidentiality of arbitral proceedings, etc.).
2. The Committee is also of the opinion that the National Litigation Policy (NLP) must promote arbitration in government contracts.
3. Government’s role – The Central Government and various state governments may stipulate in arbitration clauses/agreements in government contractsthat only arbitrators accredited by any such recognised professional institute may be appointed as arbitrators under such arbitration clauses/agreements.

WORKING AND PERFORMANCE OF THE INTERNATIONAL CENTRE FOR ALTERNATIVE DISPUTE RESOLUTION (ICADR)[22]

• International Centre for Alternative Dispute Resolution (ICADR) was established in 1995for thepromotion and development of Alternative Dispute Resolution (ADR) facilities and techniques to facilitate early resolution of disputes and to reduce the increasing burden of arrears in Courts.
• The committee recommendeddeclaring the ICADR as an Institution of national importance and takeover of the institution by a statute as revamped ICADR has the potential be a globally competitive institution.

The reasons for choosing ICADR as the arbitral institution to be developed are:[23]

1. It was set up in 1995 (under the aegis of the Ministry of Law and Justice) with the object of promoting ADR in India.
2. It has received substantial funding by way of grants and other benefits from the Government.
3. It has some benefits like an excellent location (Headquarters at New Delhi and Regional Centres at Hyderabad and Bangalore), good infrastructure and facilities which make it ideal for development as an arbitral institution.

BILATERAL INVESTMENT TREATY (BIT) ARBITRATIONS INVOLVING THE UNION OF INDIA[24]

India presently involved in 20, odd BIT disputes. The committee recommendations on Bilateral Investment Treaty Arbitrations are:

1. Create an Inter-Ministerial Committee (IMC) constituting officials from Ministries of finance, external affairs and law.
2. Hire external lawyers having expertise in BIT.
3. Designated fund to fight BIT claims.
4. Appoint counsels having BIT expertise.
5. Boosting capacity of central and state governments to better understand the implications of their policy decisions on India’s BIT obligation.
6. Create a post of international law adviser – responsible for day-to-day management of BIT arbitration.
7. Consider the possibility of establishing a BIT appellate mechanism and a multilateral investment court.
8. Investor- state dispute settlement mechanism as given in article 15 of the Indian model BIT is an effective mechanism.

COMPARATIVE ANALYSIS OF INDIAN ARBITRATION INSTITUTIONS AND OTHER

SUCCESSFUL ARBITRATION INSTITUTIONS ACROSS THE GLOBE

Institutional Arbitration in a nation flourishes only when its arbitral institutions fulfill the basic requirements to successfully and effectively carry out an arbitration process. These requirements include:

1. Degree of Permanency – Disputes frequently arise many years after the making of the original commercial agreement, particularly in long term contracts. It is important that the institutions named in the arbitration clause should still be in existence when the dispute arises, otherwise, the arbitration agreement may prove to be “inoperative or incapable of being performed”, in the words of New York Convention, and the only recourse will be to the national court.

It is easier to have confidence if the institution or the centre that is chosen has an established track record or, if it is a recent creation, has some reasonable guarantee of permanency. The International Chamber Commerce and London Court of International Arbitration established in 1923 and 1892 respectively have a track record of successful arbitrations over the course of their prolonged existence.

The Indian Council Arbitration was established in 1965. At the beginning of the year 2010, 574 arbitration cases were pending with the Council at different stages of arbitration proceedings but by the end of that year, 579 arbitration cases were under process including 20 arbitration matters which have been pending in courts pursuant to litigation between the parties.Thus, though not as successful as the ICC or the LCIA, the ICA has shown reasonable guarantee of permanency.

     2.      Modern Rules of Arbitration – The practice of International Commercial Arbitration changes as new laws and procedures come into existence, both nationally and internationally. It important that the rules of arbitral institutions should be altered to reflect these changes  and not rest in some comfortable time wrap. The ICA rules are in accordance with the IACA, 1996. For instance, the appointment of sole arbitrator or three arbitrators in the arbitral tribunal is in harmony with section 10(1) of the IACA, 1996.

    3.      Qualified Staff – One of the main objects of an arbitral institution is to assist arbitrators and the parties in the conduct of arbitration. This assistance may extend not only to explaining the rules, making sure that the time limits are observed, collecting fees, arranging visas and reserving accommodations, but also to advising on appropriate procedures by reference to past experience. It is a task that requires a combination of qualities, tact and diplomacy as well as legal knowledge and experience.

It is an area in which ICC sets the standard, with each arbitration being under the supervision of a designated “Counsel”, drawn from the ICC’ staff of experienced and multi-lingual lawyers. Though, the ICA does not has such a designated counsel to supervise arbitration, it does boats a panel of around 1500 arbitrators with an extensive array of professional qualifications and expertise (legal and non- legal), guaranteeing a tribunal of the highest aptitude and proficiency.  The ICA has access to the most eminent and experienced arbitrators and with the widest range of expertise from India, U.K., Singapore, France, USA, Malaysia, Germany and Belgium.

     4.     Reasonable Charges – The process of Arbitration is deemed efficacious if along with being expeditious and just, it is cost effective as well. Some arbitral institutions including the International Chamber of Commerce and the Indian Council of Arbitration assess their own administrative fees and expenses, and the fees payable to the arbitrator, by reference to a sliding scale which is based on the amounts in dispute. This has the advantage of certainty, in that the parties can find out at a reasonably early stage what the total cost of arbitration is likely to be. Other institutions, such as the LCIA, assess their administrative costs and expenses, and the fees of the arbitrator, by reference to the time spent on the case.

CONCLUSION

The Arbitration Conciliation Act, 2015  has made an attempt to come to rescue in this regard by fixing fees and timeline for arbitration but the thorn in the flower is that courts are again to intervene to investigate as to who is to be blamed for the delay in meeting the timeline. Further, the High Courts have been provided the power to make rules for fees and the manner of payment which again would lead to lack of uniformity as each High Court of different states across India would have their own rules. Therefore, one needs to promote Institutional Arbitration in India.

It is universally acknowledged that, the quality of arbitration proceeding depends on the quality and skill of the arbitrators chosen and the Courts may not have the expertise in appointment of arbitrators who would be expert qua the subject matter in dispute. Moreover, in International Commercial Arbitrations, a national court judge understandably will have limited experience, expertise and resources for selecting suitable international arbitrators; particularly if practitioners form other countries must be selected. While having an arbitral institution making an appointment would be more beneficial as then they would be specifically organized to perform the function of selecting international arbitrators because of their day-to-day involvement in international arbitration and access to a pool of highly qualified arbitrators.

Also, Institutional Arbitration should be promoted where arbitration is carried out on a day to day basis say for instance 10 am – 4 pm so that there is no backlog of cases or delay in concluding the arbitration proceedings. Fees issue would also be taken care of by Institutional Arbitration as such Institutions have a fix fee schedule which will negate space for ambiguity

Further, steps can be taken to make the order passed by the Arbitrator under Institutional Arbitration open to appeal or review only by a President/Registrar(Head) of the Institution so as to negate parties taking the court route and the decision of the abovementioned authority can be made final and binding upon the parties and also the parties shall be taken to have waived any right to appeal or review in respect of any decision of the abovementioned authority to any state court or other judicial authority. Besides, Court intervention in arbitration proceeding could be allowed only when arbitration agreement specifically provides for it.

We should make Institutional Arbitration an attractive hub for foreign parties and investors, certain things are to be kept in mind like a forum is attractive as a seat only if it has a judiciary that is supportive of arbitration. Further, the Institutions conducting Arbitrations in India should be provided ample resources and opportunities to participate in important international arbitration conferences and to host one to two major international arbitration conferences at least in a year so that it would invite worldwide participation/attention and exposure that can enhance the international image of Institutional Arbitrations in India and attract foreign parties to arbitrate in India.

Thus, Institutional Arbitrations should be given a green flag with patient expectations about its results rather than taking any hasty decisions because one thing is trustworthy that if countries like Singapore and Hong Kong can become Arbitration hubs on the strength of Institutional Arbitrations, so can India. India is on the track of establishing confidence in its legal system which is the fundamental condition for any country to become an international arbitration venue.

END NOTES :

[1] Butterworths, HALSBURY’S LAW OF ENGLAND (4th edition, 1991) 601

[2] Alternate Dispute Resolution, 13 (P.C. Rao & William Sheffield eds., Universal Law Publishing co. Pvt. Ltd.).

[3] Gerald Aksen, Ad hoc Verses Institutional Arbitration, 2(1) ICC Bulletin (1991): 8-14.

[4] Instances of such association are Grain and Feedstock Trade Association (GAFTA) and London Maritime Arbitrators Association (LMAA).

[5] Krishna Sarma et al., ‘Development and Practice of Arbitration in India –Has it Evolved as an Effective Legal Institution ‘, Working Paper 103, of the Center on Democracy, Development, and The Rule of Law Freeman Spogli Institute for International Studies (2009), available at https://cddrl.fsi.stanford.edu/sites/default/files/No_103_Sarma_India_Arbitration_India_509.pdf

[6] Sundra Rajoo, ‘Institutional and Ad hoc Arbitrations: Advantages and Disadvantages’, The Law Review (2010), available at http://sundrarajoo.com/wp-content/uploads/2016/01/Institutional-and-Ad-hoc-Arbitrations-Advantages-Disadvantages-by-Sundra-Rajoo.pdf (

[7] Alan Redfern and Martin Hunter, Law and Practice of International Commercial Arbitration, 47(4th ed., 2004) ¶¶ 1-99.

[8] G.K. Kwatra, Arbitration and Alternative Dispute Resolution, 59 (Universal Law publishing co., 2008).

[9] Statistics show that 91 of the 271 cases administered by the Singapore International Arbitration Centre (SIAC) last year involved Indian parties, which amounts to twice as many as the Chinese users, who filed the second-highest number of cases. See Sathyapalan and Sivaraman, ‘A Lot Still Needs to Be Done For India to Fulfil Its International Arbitration Ambitions’, The Wire (Online) on 02.11.2016, available at https://thewire.in/77002/international-arbitration-india/ (accessed on 26.02.2017)

[10] See Gary Born, ‘International Arbitration: Law and Practice’, 2012 Ed. p. 13. See also ‘The pros and cons of arbitration’, A Lexis PSL document produced in partnership with Mayer Brown International LLP, available at https://m.mayerbrown.com/Files/News/04165fd5-5165-41ea-bb6f19d9235c171d/Presentation/NewsAttachment/7e531e5e-4040-4251-b1a8- 1d4b6168c99b/Practice%20Note_Duncan_Pros-Cons-Arbitration_oct12.pdf (accessed on 02.03.2017)

[11] ‘Maharashtra readies arbitration policy’, Business Standard (online), 15th October 2016, available at http://www.business-standard.com/article/economy-policy/maharashtra-readies-arbitration-policy116101400574_1.html (accessed on 17.02.2016).

[12] 246th Report of the Law Commission of India (August, 2014), ‘Amendments to the Arbitration and Conciliation Act 1996’, available at http://lawcommissionofindia.nic.in/reports/Report246.pdf (accessed on 02.03.2017).

[13] Special Address by Justice A.P. Shah at the Nani Palkhivala Arbitration Centre 9th Annual International Conference on Arbitration on Current Issues in Domestic and International Arbitration, 18.02.2017.

[14] Sitting List with effect from 15 November 2016 of the Bombay High Court (Original Side), available at http://bombayhighcourt.nic.in/sittinglist/PDF/sitlistbomos20161027181818.pdf (accessed on 02.03.2017); Sitting List with effect from 4 January 2017 of the Bombay High Court (Original Side), available at http://bombayhighcourt.nic.in/sittinglist/PDF/sitlistbomos20161222191515.pdf (accessed on 02.03.2017)

[15] Bibek Debroy and Suparna Jain, ‘Strengthening Arbitration and its Enforcement in India – Resolve in India’, Research Paper of the Niti Ayog (2016), p.15, available at http://niti.gov.in/writereaddata/files/document_publication/Arbitration.pdf (accessed on 02.03.2017). See also Ghani, Moin, ‘Court Assistance, Interim Measures, and Public Policy: India’s Perspective on International Commercial Arbitration’, The Arbitration Brief 2, no. 1: 16-29 (2012). Available at http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1026&context=ab (accessed on 03.02.2017); Promod Nair, ‘Ringfencing Arbitration from Judicial Interference: Proposed Changes to the Arbitration and Conciliation Act’, The Practical Lawyer (2010).

[16] See decisions in Bhatia International v. Bulk Trading S.A., (2002) 4 SCC 105, Venture Global Engineering v. Satyam Computer Services, (2008) 4 SCC 190.

[17] For instance, there are conflicting decisions by two High Courts on whether two Indian parties can have a foreign seat of arbitration. See Addhar Mercantile Private Limited v. Shree Jagdamba Agrico Exports Pvt Ltd., Arbitration Application No. 197 of 2014 and Arbitration Petition No. 910 of 2013 (Bombay High Court) and Sasan Power Limited v. North American Coal Corporation India Pvt. Ltd., First Appeal No. 310 of 2015 (Madhya Pradesh High Court).

[18] http://www.clearias.com/arbitration-in-india/

[19] http://pib.nic.in/newsite/PrintRelease.aspx?relid=155959

[20] http://www.jagranjosh.com/current-affairs/committee-to-review-institutionalisation-of-arbitration-mechanism-in-india-constituted-1483098105-1

[21] https://www.indianbarassociation.org/what-india-needs-to-do-to-make-institutional-arbitration-success-in-india/

[22] http://legalaffairs.gov.in/sites/default/files/Report-HLC.pdf

[24] http://pib.nic.in/newsite/PrintRelease.aspx?relid=169621

Author : Charu Shahi, Ph.D Scholar, Amity University.

The post THE CONCEPT OF INSTITUTIONAL ARBITRATION – NEED FOR THE HOUR appeared first on Legal Desire Media and Insights.

The world, as a whole, has experienced a lot of changes in the past few years on every front, be it economical, social or even legal. A considerable number of changes have taken place in the legal industry in the recent past. One such change is the emergence of INTELLECTUAL PROPERTY RIGHTS as one of the most productive fields of law worldwide. Intellectual Property Rights primarily includes rights related to Trademarks, Patents, Copyright, etc. It allows its owner or creator to benefit from his/her own work or invention. These rights have been recognized as a protection of new creations which further contribute in the economic growth of any country while improving the quality of life of its citizens. As IP Rights play an important and now an ever-increasing role, disputes related to the same have also considerably increased. Arbitration, as a private, third-party judicial determination of any dispute, is being preferred over the mainstream litigation in case of these IP rights related disputes. International Arbitration becomes an attractive option when the parties involved in the dispute belong to different jurisdictions. This paper will primarily focus on the increasing need of Arbitration in the field of IPR and why it should be preferred over litigation in courts. It will also highlight the challenges faced in the same and the ways and means to overcome them. One of the major arguments related to use of arbitration in IP rights is that certain IP rights are granted by national authorities and disputes regarding the same should be handled by any public body within the national system only. However, it has now been broadly accepted that the IP rights disputes are arbitral, even if involving international parties. This paper will also focus on some important features of the Arbitration Rules adopted by the World Intellectual Property Organization, which is a self-funding agency of the UN and a global forum for IP Services, information and cooperation.

RESEARCH METHODOLOGY

The research work consists of Theoretical and Analytical Study, based on the collection of data from secondary sources. It is an attempt to understand thesignificance of Arbitration in respect to the disputes related to Intellectual Property Rights in India.

INTRODUCTION

In the most basic language, arbitration means a non judicial process for settlement of disputes where there is an independent party i.e. the third party known as an arbitrator who makes decisions on the respected matter and his decisions are binding on the parties. The role of an arbitrator is similar to that of the judge but it is less formal and an arbitrator is an expert in their own right. Arbitration is the private, judicial determination of a dispute, by an independent third party. An arbitration hearing may involve the use of an individual arbitrator or a tribunal. A tribunal may consist of any number of arbitrators though some legal systems insist on an odd number for obvious reasons of wishing to avoid a tie. One and three are the most common numbers of arbitrators. The disputing parties hand over their power to decide the dispute to the arbitrator(s). Arbitration is an alternative to court action (litigation), and generally, just as final and binding (unlike mediation, negotiation and conciliation which are non-binding).

The general principles of arbitration are as follows-

• The main object for setting up of arbitration is that a fair resolution is obtained through a third party without any unnecessary expense or delay
• Through arbitration, the parties are given the chance to choose how their disputes should be resolved.
• Lastly, in the process of arbitration, the courts need not to interfere.

Arbitration has many positive points over the judicial process, because of which people tend to go to arbitrate over their disputes rather than resolve their problems through judicial proceeding in the court. The first, positive aspect about arbitration is that the parties are the decision makers. The parties can choose any person who has technical knowledge if the dispute is related to a technical field. Through this the evidence will be more readily understood. Secondly, where it takes a long time in court proceedings, arbitration can be heard sooner. The arbitration hearing is shorter in length and the preparation work is less demanding. Thirdly, when an arbitration proceeding is happening, it is always confidential i.e. it is a private meeting in which in which the media members and the members of the public are not able to attend. Moreover, the final decision is also not published as well as they are not directly accessible. This is in favour of a person or an employer who does not want his dirty laundry to be aired. Fourthly, arbitration is very convient for the people of low income as the hearings of the proceedings are arranged at times and places that suits the parties, arbitrators and the witnesses. Further, the procedures of arbitration can be segmented, streamlined or simplified according to the circumstances of the case.

With advantages, arbitration also has many disadvantages. Firstly, there is a lack of formal evidence process. It means that in spite of depending on the judge’s judgement, the parties do rely on the skills of the arbitrator to sort out the evidence. There is no interrogation or disposition and no discovery process is included in arbitration. Secondly, in arbitration one or both the parties have to pay for the arbitrator’s service, while the court system provides an adjudicator who does not charge a fee. Thirdly, because of the relaxation of the rules of evidence in arbitration, the power of the arbitrator to do equity, the arbitrator may rendered award that, rather than granting complete relief to one side, splits the decision by giving each side part of what they requested. Thus both the parties leave the table feeling that justice was not served. Fourthly, unless there is evidence of outright corruption or fraud, the award is binding and usually not appealable. Thus if the arbitrator makes a mistake, or is simply an idiot, the losing party usually has no remedy. Apart from this, Arbitrators are generally unable to enforce interlocutory measures against a party, making it easier for a party to take steps to avoid enforcement of member or a small group of members in arbitration due to increasing legal fees, without explaining to the members the adverse consequences of an unfavourable ruling.

The arbitrators which determine the outcome of the dispute are called the arbitral tribunal. The composition of the arbitral tribunal can vary enormously, with either a sole arbitrator sitting, two or more arbitrators, with or without a chairman or umpire, and various other combinations. In most jurisdictions, an arbitrator enjoys immunity from liability for anything done or omitted whilst acting as arbitrator unless the arbitrator acts in bad faith.Arbitrations are usually divided into two types: ad hoc arbitrations and administered arbitrations.

In ad hoc arbitrations, the arbitral tribunals are appointed by the parties or by an appointing authority chosen by the parties. After the tribunal has been formed, the appointing authority will normally have no other role and the arbitration will be managed by the tribunal.

In administered arbitration, the arbitration will be administered by a professional arbitration institution providing arbitration services, such as the LCIA in London, or the ICC in Paris, or the American Arbitration Association in the United States. Normally the arbitration institution also will be the appointing authority. Arbitration institutions tend to have their own rules and procedures, and may be more formal. They also tend to be more expensive, and, for procedural reasons, slower.

On the other hand Intellectual property rights are like any other property right. They allow creators, or owners, of patents, trademarks or copyrighted works to benefit from their own work or investment in a creation. These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions. The importance of intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Both treaties are administered by the World Intellectual Property Organization (WIPO).

RELATION BETWEEN ARBITRATION AND IPR

Resolving Intellectual Property Rights issue through alternative dispute resolution proceeding was a technique long developing. It is the arbitration of disputes especially; institutional arbitration is becoming important for the sectors that are growing in India in the context of liberalisation and globalization. Intellectual Property rights are as strong as the means that exist to enforce them. In this context, arbitration, as a private and confidential procedure, is increasingly being used to resolve disputes involving intellectual property rights, especially when involving parties are from different jurisdictions. Institutional arbitration is a process that is not “ad hoc” or decided by arbitrators chosen case by case by the parties to a dispute by mutual agreement or named by the courts but by arbitrators by the panel of institution who have been chosen by their in depth knowledge of different fields, and have to follow norms, including in relation to fees, set by institution. All these sectors are increasingly characterized by international transactions, where the laws applicable vary from country to country and involve a high level of specialization in the domain concerned. Another common factor is the criticality of time, considering that patent terms are limited, and technology could become obsolete fast, and hence the long duration taken by courts to settle dispute beyond, the scope for appeal goes against the interest of disputants. Hence arbitration offers these sectors advantages particularly valuable for them. The main obstacle to using arbitration to resolve Intellectual Property Rights disputes is the issue of its subject matter arbitrability.

Intellectual Property rights are territorial and are primarily derived from the legal protection granted by the local sovereign power, which affords the grantee certain exclusive rights to use and exploit the rights.  It is argued that disputes in relation to its agent, validity and the extent of rights granted should be determined only by the authority which granted the right or in certain situations by the courts of that country. This had an effect that the rights and entitlements to IP and the legal issues which flowed from those rights could not usefully be referred to or considered by an arbitration tribunal.  Where however, the parties enter into arrangements relating to the development, use, marketing or transfer of IP rights granted, disputes arising from such commercial arrangements could be arbitrated without any controversy arising from the issue of its arbitrability. Such matters are generally regarded as inner parties’ commercial matter and are tribunal.

Now lets answer the question as to why arbitration is used as a mechanism to solve the dispute in Intellectual Property Rights Conflicts?

In the U.S, the United States Supreme Court has reviewed this question several times, with an answer dependent on certain circumstances. In AT&T Technologies, Inc v. Communication Workers of America, the court held that the question of whether parties contractually agreed to arbitrate is to be decided by the court, not the arbitrator, unless the parties clearly and unmistakably provided otherwise. Granite Rock Co. International Brotherhood of Teamsters reached the same result. A court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate the dispute and formed an agreement to arbitrate. But in Rent A Centre West v. Jackson, the court held that the arbitrators decides the question of whether an issue is subject to arbitration so long as parties clearly and unmistakably provided for such a determination and the validity of agreement to arbitrate such threshold issues is not specifically challenged.

IP arbitrations are rare because among other things, IP disputes frequently do not involve a pre-existing contractual relationship. Arbitration however requires a contractual agreement to arbitrate. Further some countries do not allow arbitral tribunals to rule on issue of patent invalidity is frequently asserted as a defence to an action brought under a license agreement, these disputes tend to be litigated in court.  Accordingly, the use of arbitration as a mechanism to resolve such disputes is generally consistent with public policy in most jurisdictions even if certain public policy based restrictions may limit the arbitrability of intellectual property disputes in certain countries. As a result, the grounds of in arbitrability of intellectual property disputes are quite narrow and should not restrict the parties for conceptualizing and planning in advance how an intellectual property arbitration could successfully be structured and what factors should be taken into consideration in this framework.

ARBITRATION IN COPYRIGHT DISPUTES

Many times a question arises before the Courts, as to whether cases of Intellectual Property viz. those involving passing off of copyrights, are amenable to the jurisdiction of an arbitrator or the same lies exclusively in the ambit of courts.The judicial doctrine that has evolved with regard to the limit of arbitrability is that all disputes relating to rights in personam are considered to be amenable to arbitration and all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals.

In this regard, the Delhi High Court in the matter of HDFC Bank v. Satpal Singh Bakshi[1], observed that ‘all disputes relating to “right in personam” are arbitrable and choice is given to the parties to choose this alternate forum. On the other hand, those relating to “right in rem” having inherent public interest are not arbitrable and the parties choice to choose forum of arbitration is ousted’.

In a recent landmark judgment of Eros International Media Limited vs. Telemax Links India Pvt Ltd[2]an application was moved by the defendant (Telemax) under Section 8 of the Arbitration and Conciliation Act, 1996, and the question arose whether under law there is a specific bar to arbitration or the arbitrability of such Intellectual Property disputes and whether such disputes are only amendable to jurisdiction of courts.

In brief, the background of the case was that Eros (plaintiff) had copyright in several feature films. It executed a term sheet contract with Telemax (defendant) for granting content marketing and distribution rights in respect of films. The said term sheet had an arbitration clause. Also, while the term sheet contemplated the execution of an agreement within a limited time, however, no such agreement was executed.

Disputes arose between the parties and Eros (plaintiff) filed a suit for infringement of copyright against Telemax and the subsequent licensees. Eros argued that Telemax was not entitled to exploit and deal with such content before execution of the agreement. On the other hand, to counter the suit, Telemax filed an application under Section 8 of the Arbitration Act stating that all disputes (including under the present suit) between Eros and Telemax be referred to arbitration in view of the arbitration clause in the term sheet, which aspect came to be decided as part of the decision.

Eros contended that term sheet was not binding and that Telemax had infringed its copyright and had also sub-licensed this copyright-protected material to the other defendants to the suit. Eros argued that the action against Telemax was not for breach of a contract (since the term sheet had also expired), but was a statutory action under the Copyright Act, which is inherently non-arbitrable. Eros also contended that the other defendants were not a party to the term sheet.Telemax argued that the dispute arising out of the term sheet was purely contractual and not simply an action for copyright infringement. Telemax further argued that by the suit, Eros sought to enforce a right in personam as opposed to a right in rem.

Further, the other defendants, who were not parties to the term sheet, were in the nature of persons claiming through or under Telemax (under the amended Section 8) and had also filed affidavits agreeing to submit the entire dispute to arbitration. Telemax also argued that there was no specific bar on the arbitrability of such disputes and relied on the decision of the Supreme Court of India in Booz Allen & Hamilton Inc v. SBI Home Finance Limited & Ors.

The Court while deciding in favour of the defendant (Telemax), observed that provisions of the Copyright Act and the (Indian) Trade Marks Act, 1999 (Trademarks Act) do not oust the jurisdiction of an arbitral panel, they only seek to ensure that such actions are not to be brought before the Registrar or the board. Further, where there are matters of commercial disputes and parties have consciously decided to refer these disputes arising from that contract to a private forum, no question arises of those disputes being non-arbitrable. Such actions are always actions in personam, one party seeking a specific relief against a particular defined party, not against the world at large.  Eros’ action is in personam as it is seeking a particular relief against a particular defined party.

This decision makes it abundantly clear that although under trademark and copyright law, registration grants the registrant a right against the world at large and it is possible that an opposition to such an application (before the Registrar) would be an action in rem, however, an infringement or passing off action binds only the parties to it.

CHALLENGES IN ARBITRATION WITH RESPECT TO IPR DISPUTES

Arbitration, as a means of dispute resolution, has emerged to be a very successful attempt. This trend has not only been witnessed in India, but all over the world. Most of the cases that come up  are, if possible sent for arbitration. But for our country, this is a relatively new concept. In the recent past, the laws of arbitration have evolved and garnered a lot of attention, especially in India. It is clear from the above mentioned information that Arbitration, no doubt plays an important and effective role in the problem solving and decision making. Also, it is not restricted to just a single field of law, but to many. But, there are some hurdles and problems that has been causing a bit trouble in the complete implementation of Arbitration.

1. Applicability of the Amended Act

It 2015, India took a huge leap and decided to amend Arbitration and Conciliation Act, 1996. After the required amendments and changes, the Law Commission of India, in 2015, changed the arbitration law b an ordinance issued in October 2015. At the end of 2015, the Indian Parliament approved a bill which made the changes permanent, and on 31 December 2015 the Arbitration and Conciliation (Amendment) Act, 2015 (the “Amendment Act“) became law.One of the major hindrances that arbitration as a field is witnessing, is the fact whether the amended Act, Arbitration and Conciliation (Amendment) Act, 2015 (the “Amendment Act”). There have been High Court judgments which are conflicting in nature. In one case, it was held that the amendment act won’t be applicable to the stage post arbitral proceeding. This was held by the Madras High Court, in relation to Section 26[3] of the Amendment Act. However, Delhi High Court held that court proceedings which are initiated post amendment would not come under the Amended Act unless they were merely procedural in nature. This example clarifies that the applicability of the Amended Act is still not clear and this leads to different interpretations by the court, which could prove to be a problem.

2. Arbitrability of cases of oppression or mismanagement

Another problem that is faced is that in cases of oppression or mismanagement, not each and every consequential act which is a result of such cases, is restricted to the case only. Some disputes might lead to causing effect to a third party, who is not even a part of the arbitration agreement. Therefore, such disputes are rendered non- arbitrable.

3. Arbitration under Foreign Law

Another one of the problems is whether Indian parties getting into an arbitration agreement, can choose a foreign law to govern such agreement. There have been many cases discussing this aspect, however, there is still no clarity. Bombay High Court, in the case of Addhar Mercantile Private Limited V. Shree Jagdamba Agrico Exports Pvt. Ltd[4], stated that Indian parties, choosing foreign law to govern their arbitration agreement, could be considered to be opposing public policy of the country. However, in the case of Sason Power Ltd. V North America Coal Corporation India Pvt. Ltd[5]., the Madhya Pradesh High Court held that two Indian parties may conduct arbitration under foreign law.

4. Not keen on taking dispute to arbitration

One of the major problems when it comes to Arbitration in IPR disputes is that it is extremely difficult to get injunctive relief and punitive damages speedily. An IP holder may want his case to be resolved speedily and such relief is more likely to be obtained from public court rather than from an arbitration tribunal. Also, IPR disputes are usually among parties who do not know each other from before and have no pre-existing relationship and therefore they are not inclined to agree to submit their dispute to ADR. In other circumstances, even in the context of an existing relationship or prospective transaction, there still may be reasons why one party or another might not want to agree to the resolution of any IP disputes by arbitration of some other form of ADR.

CONCLUSION

With the advent of globalization, Intellectual Property Rights have also become more internationalized and commercialized. This is evident from the increasing number of cross-border arrangements and agreements. Because of these agreements and arrangements the demand of IPR rights holders to deal with IPR disputes at an international level is also increasing. When parties seek mechanisms for dispute settlements, they consider their commercial interests as primary concern and they wish for the dispute settlement to be personal, highly flexible and efficient, so that their cross – border disputes can be resolved without tarnishing their commercial relationship in the industry. Arbitration, inspite of the challenges it causes, is still preferred over litigation when it comes to cross-border IPR disputes. It avoids parallel litigations and has its inherent advantages in dealing with commercial disputes in respect of flexibility, confidentiality, finality.

On one hand, in theprocess of international economic globalization, most countries are inclined to acknowledge the IPR as private propertyrights. On the other hand, courts are overburdened by a large amount of commercial disputes. This has resulted in increasingdebates and researches, both academically and practically, on alternative dispute resolution methods, and many countries areinclined to adopt a policy favoring and allowing arbitration and further enlarge the scope of arbitrability. With the world more and moredependent upon technology of all types, the continued and growing importance of intellectual property cannot beunderstated. There has been, and will continue to be, an accompanying explosion in the number and complexity oftransactions in which intellectual property is a critical, if not THE critical, element. Many of these transactions cross nationalboundaries; as do the disputes which inevitably arise from them. But international intellectual property disputes presentcomplexities not encountered in either intellectual property disputes which are confined to one country or other internationalcommercial disputes.

The Arbitration of International Intellectual Property Disputes will serve as a handy reference and guide for navigatingthrough the complex maze of intellectual property and arbitration. As confirmed by the growth of IP arbitration proceedings and by recent trends, the use of arbitration for solving international intellectual property disputes isexpanding. This trend can be confirmed by the choice made by policy makers to authorize and promote the use of arbitrationfor solving intellectual property disputes, which constitutes a clear sign that arbitration is an adequate method for solvingintellectual property disputes that does not threaten in any manner, the powers of the state authorities over intellectualproperty as such.

In view of these developments, it is important that all the stakeholders, and particularly the parties and their counsel, shallbecome aware of the adequacy of arbitration for solving international intellectual property disputes and shall take time toassess in advance the implications of using arbitration effectively for solving such disputes. This requires moving beyond thethreshold issue of arbitrability of intellectual property disputes in order to address the issues which can significantly affect thesuccess of arbitration in terms of cost, speed and efficiency, particularly the scope of the arbitration clause and the definitionof the governing law.

REFERENCES

• (1998). Arbitration. Commonwealth Law Bulletin 24(1), 1-86.
• Andreas Rahmatian, “Contracts infringing
  intellectual property rights”, Intellectual Property Quarterly, 2003, 4,
  411-444.
• Arpad Bogsch, Opening Address, WORLDWIDE FORUM ON THE ARBITRATION OF INTELLECTUAL PROPERTY DISPUTES, WIPO PUBLICATIONS NO. 728 (E), 14 (1994), available http://www.wipo.int/amc/en/events/conferences/1994/opening.html
• Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10 1985, art. I(1), 21 U.S.T. 2517, 330 U.N.T.S. 38
• Hoellering, M. (1985). REMEDIES IN ARBITRATION. The Forum (Section of Insurance, Negligence and Compensation Law, American Bar Association),20(3), 516-530. Retrieved from http://www.jstor.org/stable/25762817
• Intellectual Property: Arbitration v. Litigation, AMERICAN ARBITRATION ASSOCIATION 2, available at http://www.adr.org/si.aso?id=5004 (lat visited January 10, 2017)
• Khindria, T. (1995). Enforcement of arbitration awards in india. International Business Law Journal1995(2), 256-271.
• Overview of Arbitration in IPR. (n.d.). Retrieved January 20, 2018, from http://www.lawyersclubindia.com/articles/Overview-of-Arbitration-in-IPR-4980.asp
• The ABCs of ADR: A dispute Resolution Glossary, CPR INSTITUTE FOR DISPUTE RESOLUTION (2000), http://www.ilr.cornell.edu/allaince/resources/basics/ABCs.html.

END NOTES :

[1]193 ( 2012 ) DLT 203

[2]MANU/MH/0536/2016

[3] Section 26 Act not to apply to pending arbitral proceedings: – Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of Section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree but this Act shall apply in relation to arbitral proceedings commenced or on after the date of commencement of this Act

[4] Arbitration Petition No. 910/2013 dated June 12, 2015.

[5] First Appeal No. 310/2015 dated September 11, 2015

Author : Akshita Sharma & Somiya Kaul ,STUDENTS, SYMBIOSIS LAW SCHOOL, NOIDA.

The post ARBITRATION AND IPR appeared first on Legal Desire Media and Insights.

The prisoner’s rights and human rights are chosen two important and related concepts. Many people, including high ranking political leaders, sometimes argue that prisoners don’t have or should not be allowed to enjoy their human rights.

When an individual commits a crime the legal system prosecutes the criminal and ultimately incarcerates him. Prisoners are sent to prison or jail because they committed a crime, something that was considered unacceptable and wrong in society. Therefore, they are sent to prison or jail to pay for what they did, to be punished. However, a lot of these prisons and jails that they are being sent to are made to be too comfortable and too accommodating. Prisoners are being entertained rather than being reformed. They are entitled to the hypocrisy of programs such as arts & crafts, music, television, occasional live performances, and leisure sports. Along with these activities prisoners are entitled to programs such as education and trade instruction. Jail and prison may not exactly be the greatest place to some, but too many of the inmates, it is considereda better alternative than some other punishment[1].

Beginning in the 1960s federal courts responded to prisoner lawsuits alleging poor treatment and many other poor conditions within the prison. Such as the prison being faced with overcrowding, violence, poor food and medical care, and abusive treatment by guards, the federal courts placed many state prison systems under their control. The courts mandated that state legislatures appropriate money to improve and expand prison facilities (Prisoner’s Rights, 2002). Prison health care before the reform era was inconsistent and often “shockingly substandard,” in the words of law professor Sheldon Krantz (Corrections and Prisoners). The Eighth Amendment was created in order to allow the convicted to have his or her rights. The Eighth Amendment to the Bill of Rights of the U.S. Constitution contains these provisions:“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments imposed.”[2]

Prisons and Prisoners’ Rights: An Overview

Federal and state laws govern the establishment and administration of prisons as well as the rights of the inmates. Although prisoners do not have full Constitutional rights, they are protected by the Constitution’s prohibition of cruel and unusual punishment (see Amendment VIII). This protection requires that prisoners be afforded a minimum standard of living. Prisoners retain some other Constitutional rights, including due process in their right to administrative appeals and a right of access to the parole process[3].

The Equal Protection Clause of the 14th Amendment has been held to apply to prison inmates. Prisoners are therefore protected against unequal treatment on the basis of race, sex, and creed. Additionally, the Model Sentencing and Corrections Act provide that a confined person has a protected interest in freedom from discrimination on the basis of race, religion, national origin, or sex. Prisoners also have limited rights to speech and religion[4].State prisoners have no rights to particular classifications under state law. Courts are extremely reluctant to limit the discretion of state prison officials to classify prisoners.

Courts tend to give deference to prison officials regarding prisoners’ rights. As long as the conditions or degree of a prisoner’s confinement are within the sentence and not otherwise violative of the Constitution, the due process clause does not require judicial oversight. For prison regulations that do impinge on inmates’ constitutional rights, the strict scrutiny test does not apply. Rather, the rational relationship test is used (the lowest level of judicial scrutiny-the test is whether there is a rational relation to a legitimate state interest)[5].

History of Prisoners’ Rights and The Hands-Off Doctrine

The hands-off doctrine dominated thinking about correctional law in America during the 19^th century. American courts regarded inmates as “slaves of the state.” Judges believed prisoners had no rights because they had forfeited them as a result of their crimes, and judges didn’t interfere with the administration of correctional institutions because they didn’t want to violate the principle of separation of power (in other words, the courts didn’t want to interfere with the authority of the executive branch to administer prisons)[6].

During the 1960s and 1970s, the courts moved away from the hands-off doctrine and acknowledged that courts have a duty to resolve constitutional claims of prisoners. The assertiveness of Black Muslim prisoners in making claims upon the courts and the activist Warren Court’s commitment to protecting the rights of minorities, including persons accused of crimes and persons convicted of crimes, caused this shift. In addition, several legal developments also led to the temporary demise of the hands-off doctrine[7].

In Monroe v. Pape (1961)[8], the U.S. Supreme Court ruled that citizens could bring Section 1983 suits against state officials in federal courts without first exhausting all state judicial remedies. Section 1983 of the Civil Rights Act of 1871, which imposes civil liability on any person who deprives another of constitutional rights, became a vehicle inmates could use to challenge the constitutionality of the conditions of prison life. In another significant case, Robinson v. California (1962)[9], the Court extended the Eighth Amendment’s prohibition against cruel and unusual punishment to the states.

Today, the Court recognizes that prisoners do have certain rights. At the same time, however, the Court holds that prisoners do have fewer rights than free citizens because taking away rights is a legitimate punishment and because the restriction of rights is necessary to maintain security in prisons. The current trend is back to the hands-off doctrine, with the Rehnquist Court granting correctional officials considerable discretion to decide what restrictions should be placed on inmates.

Prisoners’ Rights

• The Right To Free Speech

The First Amendment provides in part that “Congress shall make no law … abridging the freedom of speech.” Since 1970, the federal and state courts have extended the right of freedom of speech and expression to inmates, requiring correctional administrators to justify restrictions on these rights.

In Procunier v. Martinez (1974), prisoners challenged the constitutionality of state regulations covering censorship of prisoner mail on the grounds that they violated the prisoners’ free-speech rights. One rule banned letters containing inmates’ criticisms of prison conditions. Striking down the state regulations as unconstitutional, the Supreme Court set forth two requirements for future efforts to regulate communications of prisoners. First, restrictions on speech must be justified as being necessary for maintaining security or some other substantial governmental interest. Second, the rules can’t stop inmate communications any more than is necessary to protect important governmental interests[10].

• The Right To Freedom of Association

Another right protected by the First Amendment is freedom of association. In Jones v. North Carolina Prisoners’ Labor Union (1977), the Supreme Court upheld the constitutionality of restrictions on the activities of a prisoner labor union.

Another First Amendment right upon which many prisoners litigation has concentrated is freedom of religion. The Supreme Court has declared that inmates do have the right to freedom of religion and that prison authorities must provide inmates opportunities to practice their religious faith[11].

• The Right of Access To The Courts

The right of access to the courts is the most important of all prisoners’ rights. Civil rights suits filed under Section 1983 of the Civil Rights Act of 1871 have served as the main way for inmates to enforce their constitutional rights. Victories in such lawsuits have produced the right to receive assistance from a jailhouse lawyer (an inmate who provides legal advice to other inmates) and the right to be afforded access to adequate law libraries.

The Fifth and Fourteenth Amendments guarantee due process to all citizens. How much process are inmates due in disciplinary proceedings? In Wolff v. McDonnell (1974), the Supreme Court held that when inmates may lose good time, due process demands that certain procedures be in place so inmates are not arbitrarily deprived of their freedom. Inmates have:

– The right to be notified of charges against them before their disciplinary hearings.

– The right to call witnesses to testify at their hearings.

– The right to assistance in presenting a defense (which doesn’t, however, include the right to an attorney).

– The right to a written statement explaining the evidence used in reaching a disposition.

– The right to an impartial decision maker.

• The Right To Equal Protection Under The Law

The Fourteenth Amendment guarantees all citizens “equal protection of the laws.” The most common equal-protection lawsuit by inmates claims racial discrimination. Claims alleging gender-based discrimination tend to center on fewer educational and work opportunities afforded to female as compared to male inmates. Courts have ruled that facilities, programs, and privileges provided to female inmates must be substantially equivalent to those provided for male inmates.

• The Right To Privacy

Prisoners have no Fourth Amendment right to freedom from unreasonable search and seizure. Prison officials can monitor prisoners’ movements throughout prisons, watch prisoners in their cells, and conduct warrantless searches inside prisons. In Hudson v. Palmer (1984), the Supreme Court ruled that prisoners have no reasonable expectation of privacy in their prison cells entitling them to Fourth Amendment protection. The Court has denied prisoners any rights to privacy because of the need for prison authorities to have access to cells and prisoners’ personal belongings for security reasons

• Rights In Conflict

Some litigation in the right-to-privacy area relates to questions about correctional officers of a gender different from an inmate’s searching or observing that inmate in the nude. This type of lawsuit is difficult because it involves conflicting rights and interests—inmates are concerned about their privacy; correctional officers, both male and female, have a right to equal employment opportunities; and prison officials have an interest in making prisons safe and secure. The courts have decided that prisoners’ right to privacy is not violated by inadvertent or infrequent observation of a nude inmate by correctional officers of the opposite sex but that strip searches can’t generally be performed by such a correctional officer.

The courts have wavered in their support of equal employment opportunities. In Dothard v. Rawlinson (1977), for example, the Supreme Court upheld a regulation prohibiting women from working in maximum-security prisons for men in Alabama. The Court found that this ban on employment of women was permissible because of the risk that male prisoners would sexually assault female correctional officers. In his dissent, Justice Marshall criticized the Court’s paternalistic attitude toward women and commented that “once again, the pedestal upon which women have been placed has, upon closer inspection, been revealed as a cage.” In Marshall’s view, women should be allowed to decide for themselves where they want to work and if they are willing to accept working in jobs with higher risks.

• The Right To Be Free From Cruel And Unusual Punishment

The Eighth Amendment prohibits cruel and unusual punishment. Eighth Amendment lawsuits claim problems in medical care, the use of force by correctional officers, the failure of prison officials to protect inmates from attacks by other inmates, and improper conditions of confinement. Estelle v. Gamble,[12] was a case decided by United States Supreme Court that held that in order to state a cognizable Section 1983 claim for a violation of Eighth Amendment rights, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medicalneeds. Though the court credited Estelle’s complaint that doctors had failed to provide appropriate care, it held that medical malpractice did not rise to the level of “cruel and unusual punishment” simply because the victim is a prisoner[13].

A common complaint relates to prison crowding. The Court has declared that the doublecelling of prisoners is not per se unconstitutional. In Bell v. Wolfish (1979), the Court declared there is no right of “one man, one cell.” Sometimes an inmate sues correctional officials, alleging they have used excessive force. In these cases, the courts consider factors such as the need to use force, the seriousness of the injuries caused by the use of force, and whether or not inmates and staff were in danger.

• Rights Of Probationers And Parolees

In Morrissey v. Brewer (1972), the Supreme Court identified the rights of parolees facing parole revocation. Among the procedural rights of parolees in such a situation are the following:

• written notice of the claimed violations of parole;
• disclosure to the parolee of the evidence to be used against him;
• opportunity to be heard in person and to present witnesses and documentary evidence;
• the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);
• a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and
• a written statement by the fact finders as to evidence relied on and reasons for revoking. 408 U.S. at 789, 92 S.Ct. at 2609.

• Rights Upon Release

When inmates are released from prisons, legal obstacles block their successful reentry into society. Ex-felons are often, for example, prohibited from voting, working in certain jobs, and serving on juries. A punishment known as “civil death” involves the termination of all civil rights of convicted felons. No state uses civil death today.

Voter disenfranchisement is the greatest civil penalty imposed on ex-felons. According to a study completed in 1998, 14 percent, or one in seven, of the 10.4 million black males of voting age in the United States are either currently or permanently barred from voting due to a felony conviction. This disenfranchisement is a direct effect of racial disparity in incarceration. Currently, all but four states prohibit inmates from voting while they are in prison. In 13 states, most, although not all, felony convictions result in the loss of voting privileges for life.

The tradition of voter disenfranchisement dates back to just after the Civil War when Southern conservatives gathered at state constitutional conventions. Representatives adopted an array of voting barriers, including literacy and property tests and poll taxes. The purpose of voting restrictions was to disenfranchise as many blacks as possible without violating the Fifteenth Amendment. While a century has passed since these conventions, criminal disenfranchisement remains as the only substantial voting restriction of the era still in effect. The cumulative effect of such large numbers of persons being locked out of the electoral process is to dilute the political power of the African-American community.

Constitutional Rights of Prisoners – Human Conditions

The 8th amendment of the Constitution protects inmates of American prisons from cruel and unusual punishment, giving prisoners the right to demand humane conditions. This means that prisoners must be allowed access to toilets, fed regularly and be housed in facilities that are not infested with disease and pests among other things. This same amendment protects prisoners from being abused either physically or sexually.

Pretrial

Inmates who have not yet been given a chance to prove their innocence are given special protection. The 8th amendment requires that inmates awaiting trial not be required to pay excessive bail. In addition to this, inmates not yet convicted of a crime cannot be treated as though they are guilty of the crime of which they are being accused, and as with all inmates, prisoners awaiting trial must be housed in facilities with humane conditions.

Due Process

The 5^th and 14^th amendments of the Constitution guarantee prisoners the right of due process of law. This means that inmates awaiting trial must be given a relatively speedy trial, an unbiased trial, the right to be represented by an attorney despite financial constraints and the right to present evidence, call witnesses and cross-examine the prosecution’s witnesses. The right of due process also applies to prisoners already convicted of crimes when they file administrative appeals.

Parole

All prisoners, except those given a life sentence without the possibility of parole, have the right of access to the parole process. Parole is the process by which prisoners are released from incarceration conditionally, and then monitored by a parole officer. Paroled inmates must comply with the conditions of their parole or risk being sent back to prison. Inmates are selected for this process by the parole board in their jurisdiction.

Equal Protection

The 14th amendment of the Constitution has a clause that grants prisoners the right to equal protection. This means that prisoners cannot be treated differently by corrections officers or other prison staff on the basis of race, gender or religion. Additionally, the Americans with Disabilities Act provide further protection of the rights of prisoners with disabilities[14].

Conclusion

Prisoners are human being and as such they retain their rights even when in prison. This is so because human rights are universal. This means that every person, including a prisoner, has human rights, no matter who he is, where s/he lives or his/her class, race, sex, age, social status, etc. Also, human rights are said to be inalienable. This means that they cannot be taken away from a person, including a prisoner. At the same time prisoners cannot enjoy all rights as everyone else. The enjoyment of human rights may be restricted or limited in certain circumstances.

Even though prisoners lose a lot of their citizen’s rights when they are convicted, they still have certain rights that make sure that they are treated fairly. Some of those rights include freedom of speech and religion, freedom from arbitrary punishment and cruel and unusual punishment, and the right to have access to the courts through Habeas Corpus. These rights are guaranteed so that prisoners are not treated unfairly, or even in an inhumane fashion. If these rights were not guaranteed to prisoners, abuse and neglect would be rampant and violence would be worse than it is now.

The prisoners’ rights movement has had its effects on the individual prisoner. They now have more access to the courts and benefit from internal procedures which help to resolve disputes within the prison. Because of the prisoners’ rights movement, individual inmates now expect better treatment than prisoners before them had received.

The bad side of prisoners having more rights is that some may want more and more rights. This causes the social behavior of the inmates to be of the attitude that they deserve to be treated a certain way. Unfortunately, some prisoners believe that they should be given more freedoms than they currently have.

END NOTES

[1]http://www.studymode.com/essays/Prison-34160.html

[2]http://www.encyclopedia.com

[3]Know Your Rights: The Prison Litigation Reform Act (2011 resource)

[4]http://www.hg.org/prisoner-rights-law.html

[5]http://www.law.cornell.edu/wex/prisoners_rights

[6]Which human rights are particularly relevant for prisoners?

[7]http://www.chacha.com/question/can-you-define-and-give-an-example-of-a-prison-staff,-hands%26%2345%3Boff-doctrine,-and-state-created-rights

[8]Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961)

[9]Robinson v. California, 370 US 660 – Supreme Court 1962

[10]CRS/LII Annotated Constitution First Amendment

www.law.cornell.edu/anncon/html/amdt1cfrag10_user.html

[11]Jones v. North Carolina Prisoners’ Labor Union (1977) Eastern District Of Wisconsin Bar Association Pro Bono Continuing Legal Education Program. Prisoner Litigation An Overview of Prisoners’ First Amendment Rights. March 29, 2007 Larry Dupuis, ACLU of Wisconsin Foundation

[12]429 U.S. 97 (1976)

[13]Estelle v. Gamble, 429 U.S. 97 (1976)

http://en.wikipedia.org/wiki/Estelle_v._Gamble

[14]http://www.ehow.com/about_5399428_constitutional-rights-inmates.html

Author : Niharika Sharma and Jayati Chauhan,

4^th Year (8th Semester), School of Law, Jagran Lakecity University, Bhopal, jayati94chauhan@gmail.com; niharikas281@gmail.com (7703803563; 7909546949)

The post Contemporary Human Rights Jurisprudence and Prisoner’s Rights appeared first on Legal Desire Media and Insights.

Gender Equality is established when people are treated equally without discrimination on grounds of sex. Globally, women are considered as an oppressed class of persons who have been denied several rights on equal basis with men.Reverse discrimination, also known as positive/lawful/protective discrimination, refers to preferential treatment of people who have been historically in the minority or disadvantaged group. Such treatment uplifts them and creates de-facto equality between the privileged and the underprivileged. It is characterised by preferential policies enacted by the legislature which remedy people who are discriminated.

Human Rights instruments and the Indian Constitutionguarantee equal rights of men and women. India has ratified the Convention on Elimination of all forms of Discrimination against Women, 1979 (CEDAW), which stands for maximum participation of women on equal terms with men in all fields. CEDAW calls upon the states to take steps to eliminate all kinds of discrimination against women. Moreover, it allows them to adopt temporary special measures to accelerate de facto equality between men and women. In India, the state can make special provisions for women.

This research paper aims at studying and analysing reservation for women in institutions as a tool for reverse discrimination of women as against the privileged men. Doctrinal research methodology has been put to use in this research paper. The paper’s scope of study includes relevant international human rights instruments and Indian laws. The significance of this study lies in the analysis of the willingness of the society in recognising reservation as a matter of right for the underprivileged women and to the extent of which reservation has been used as a tool for reverse discrimination.

Reverse Discrimination

The word “discrimination” has been defined as distinguishing or treating people unfairly on the grounds of race, sex or age.[1] Therefore, discrimination refers to the treatment or consideration of, or making a distinction in favour of or against, a person or a thing based on the group, class, or category to which that person belongs rather than on individual merit. Discrimination can be the effect of some law or established practice that confers privileges on a certain class or denies privileges to a certain class because of race, age sex, nationality, religion or disability.[2]

An average person discriminates between different options available to him almost every day to arrive at a conclusion. However, when it comes to public law, discrimination unauthorised by law indicates unfair or unequal treatment of an individual or a group based on features like age, ethnicity, religion, sex, place of birth, disability, marital status, etc. Such discrimination leads to the division of the society into different classes on unreasonable bases and leads to gross injustice.

In our society, there are certain classes of people who by their very nature are weak and prone to unlawful discrimination such as women, disabled, aged persons, etc. They are called vulnerable groups. In order to uplift them and bring them on par with the rest of the community, the concept of reverse discrimination has been developed.

Reverse discrimination, also known as positive/lawful discrimination, refers to discrimination against people who have been historically in the majority or advantaged group. Simply put, it reverse-engineers discrimination in such a way that it operates against the privileged majority and puts the underprivileged minority in advantage. It is characterised by preferential policies enacted by the legislature which remedy people who are discriminated. The concept rose to importance in the late 20^th century where preferential legislations were required to reduce the rising tensions between the minority and the majority in the society such as the conflict between the whites and the blacks in America, the issue of untouchables in India, etc.[3] History has witnessed several preferential legislations on international, regional and national levels which uplift the vulnerable groups and give them equal protection, status and opportunities in the society.

Reverse Discrimination and International Human Rights Instruments

Universal Declaration of Human Rights, 1948 (UDHR), has recognised inherent dignity and equal and inalienable rights of all members of the human family as the building blocks of freedom, justice and peace in the world. It also recognises equal rights of men and women as one of the important factors towards achieving social progress and better standards of life in larger freedom.[4] Furthermore, it also highlights that all rights and freedoms set forth in the declaration must be granted to everyone without discrimination on the grounds of sex inter alia other grounds.[5]

The International Covenant on Economic and Social Rights (ICESCR), 1966 also points out that the rights enunciated under the covenant must be granted to all without discrimination on grounds of sex inter alia other grounds[6] and that the state parties must take all due steps to ensure equal rights of men and women to the enjoyment of all economic, social and cultural rights laid down under the covenant.[7]

The International Covenant on Civil and Political Rights (ICCPR), 1966, requires each state party to respect and ensure to all individuals within its territory and jurisdiction the rights recognised by it without distinction of any kind on the basis of sex inter alia other bases. Moreover, it also requires the state to take the necessary steps to give effect to the rights recognised by it.[8] ICCPR also guarantees equality between men and women in the context of civil and political rights.[9] The covenant also prohibits state parties to take measures which are discriminatory based on sex and other grounds even in the cases of public emergencies.[10]

The Convention on the Elimination of all forms of Discrimination against Women (CEDAW), 1981, has the biggest contribution as an international human rights instrument towards securing gender equality. It defines “discrimination against women” as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”[11] CEDAW requires state parties to condemn discrimination against women in all its forms and to agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women by taking the necessary steps through law and other appropriate means.[12] State parties must also take appropriate measures especially in the social, political, economic and cultural fields, including legislation, to ensure full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.[13] The convention excludes special measures aimed at achieving de-facto equality between men and women from the definition of discrimination and also asks state parties to withdraw such measures as soon as their objectives are achieved.[14] CEDAW also discourages social and cultural patterns that create prejudices against women and lead to their inferiority among the sexes and creates stereotyped roles for them in the society.[15] CEDAW provides women other rights as well such as right to vote and to be voted for election to all publicly elected bodies, right to hold public office and execute its functions at all levels of government[16], right to represent their Governments at the international level and to participate in the work of international organisations[17], equal rights and opportunities in the field of education[18], equal rights and opportunities in the field of employment[19] and equal rights and opportunities for rural women[20]. CEDAW, furthermore, requires the state parties to take all the necessary steps to guarantee women the rights recognised by it at the national level.[21]

Regional Human Rights Instruments

European states adopted Human Rights instruments and mechanism in their region. They were the first. Council of Europe adopted the European Convention of Human Rights (ECHR) in 1950. European Union has proclaimed the Charter of Fundamental Rights of the European Union in 2000. Both these instruments recognize equality as a basic principle. Organisation of American States (OAS) adopted the American Convention on Human Rights (ACHR) in 1969. All civil political rights are guaranteed equally without discrimination. In 1948, Inter-American Convention on the Granting of Political Rights to Women was adopted. This convention declares that the right to vote and the right to be elected to national office shall not be denied or abridged by reason of sex.[22]The African Union has adopted laudable human rights conventions. The Banjul Charter/African Charter on Human and People’s Rights (ACHPR), 1981, is the first and major human rights instrument of Africa. In 2003, African Union adopted a protocol to the ACHPR on the rights of women in Africa. This protocol recognizes affirmative action for gender equality.[23]Arab Charter on Human Rights also recognizes gender equality. Commonwealth of Independent States (CIS) was formed in 1991 by Russia, Soviet Union and Asian and South Pacific Regions. CIS Convention on Human Rights and Fundamental Freedoms has also as its base the principle of equality.

Gender Equality and Indian Constitution

The Constitution of India embraces the principle of gender equality through its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution of India, apart from granting equality to women, it also gives the state the power to make special provisions and to adopt the required measures in the form of reverse discrimination for women. Article 15 (3) of the Indian Constitution reads as under:

“Nothing in this article shall prevent the State from making any special provision for women and children”.

The Constitution safeguards women from the various social, economic, political and cultural disadvantages they face in the society by making them equal before the law and entitled to equal protection of the law.[24]The Constitution disallows the state to discriminate against any citizen on the grounds of sex inter alia other grounds and allows the state to make special provisions for women and children.[25]The Constitution also provides equal opportunity for all citizens in matters of employment and appointment to any public office.[26] The State is required by the Constitution to direct its policy towards securing for men and women equally the right to an adequate means of livelihood and equal pay for equal work for both the sexes as well.[27]The State is also required by the Constitution to make provisions for securing just and humane conditions of work and for maternity relief[28], to promote with special care the educational and economic interests of the weaker sections of the society and to protect them from social injustice and all forms of exploitation[29]. It also promotes harmony and the spirit of common brotherhood amongst all people of India and to renounce practices derogatory to the dignity of women[30].

India, as a democracy, has developed several laws, policies, plans and programmes with the intention of uplifting women in different aspects. India has also ratified several international human rights instruments, including the CEDAW in 1993, in furtherance of which India came up with many legislations in the form of protective discrimination in order to secure equality for women. National Policy for Empowerment of Women (2001) assured affirmative action and women-friendly personnel policies to encourage women to participate effectively in the development process.

Reverse Discrimination: Reservation for women

Reverse Discrimination is in the form of affirmative action to uplift the backward people and ensure de-facto equality. A mere declaration by law that all are equal cannot still guarantee equality in reality. Ashok Acharya observes that affirmative action largely seeks to address structural inequalities between different groups in societies with ideas of fairness towards disadvantaged groups and of redress for unjust inequalities by way of temporarily redistributing or reallocating scarce goods.[31]

Supreme Court of India explained the concept of affirmative action in Marri Chadra Shekhar Rao v. Dean, Seth G.S. Medical College[32]-“Equality must become a living reality for the large masses of the people. Those who are unequal, in fact, cannot be treated by identical standards; that maybe equality in law but it would certainly not be real equality. Existence of equality of opportunity depends not merely on the absence of disabilities but on the presence of abilities. It is not simply a matter of legal equality. De jure equality must ultimately find its raison d’être in de facto equality.”Marc Galanter uses the word compensatory discrimination. For him the purpose is inclusion.[33]

The word “reservation” is defined as an arrangement to have something held for one’s use such as a right or interest or a record of such arrangement.[34]Article 15 (3) of the Indian Constitution, which allows special provisions to be made for women, gives the green signal for reservations in favour of women recognising the need for representation of women in various institutions in the society.

In Govt. of AP v. P.B. Vijay Kumar[35], the Supreme Court held that all other things being equal preference would be given to women to the extent of 30% posts since Art. 15 (3) is wide enough to include employment under the State. The court emphasized: “To say that under Art. 15 (3) job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this Article. Making special provisions for women in respect of employment or posts under the State is an integral part of Art. 15(3). Therefore, the court positively admitted that an important limb of the concept of gender equality is creating job opportunities for women.

In Rajesh Kumar Gupta v. State of UP[36], the Supreme Court upheld 50% reservation in favour of female candidates for primary school teachers.

In Vijay Lakshmi v. Punjab University[37], the Supreme Court held that rules that make reservations only for women as a principal, a teacher, a doctor or a superintendent are not violative of Articles 14, 15 and 16. It further held that if special schools and colleges for girls are acceptable then so are special rules which are meant for protection of young girl students.

However, Supreme Court also has opined that reservation for women cannot be an absolute 100% as well because it would be unfair to the other potential candidates for that particular post.

In Union of India v. K.P. Prabhakaran[38], the Supreme Court struck down the Railway Administration’s decision to have all reservation counters in the metropolitan cities to be manned only by women, i.e., 100% reservation because it violated Art.14, 16 (1) and (2) and not protected by Art.15 (3).

Reverse Discrimination in Legislatures

The Constitution is also known for making reservations for women in public institutions such as one-third of the total number of seats in every Panchayat[39], one-third of the total number of offices of chairpersons in the panchayats at each level[40], one-third of the total number of seats in every municipality[41]and reservation of offices of chairpersons in municipalities for women in such manner as the legislature of a state may by law provide.[42]However, the original Constitution did not provide for reservation for women in the legislatures.

The Indian Constitution has laid down three levels in the elected legislative bodies, but women have reservation only at the local level. Articles 243 T and 243 D provide reservation for women of not less than one-third of the total seats. Articles 243 D and 243 T (4) also provide reservation for women in Panchayats and Municipalities. Reservation up to 50% for women in local bodies is also seen in states like Maharashtra.

The reservation for women in local bodies has been upheld. In Ashok Kumar Malpani v. State of Madhya Pradesh[43], enhancing reservation for women from 30% to 50% in the local bodies by amending MP Municipal Corporations Act, 1956 and MP Municipalities Act, 1962 was upheld. The High Court applauded the enhancement as an inroad into encouraging participation of women in the ground democratic polity. The Court rejected the complaint that the reservation will let the administration take over the elected body due to the inadequacies of the women as premature thinking of bygone days.[44]The Court also rejected the argument that there is no need for reservation as there is equality in contesting and that there is no ban on women from being elected.

The International Parliamentary Union data, as of March 1, 2017, shows that world average percentage of women in national parliaments, both houses taken together, is just 23.4% and Asian average is 19.4%. India has 11.8 % in the lower house and 11% in the upper house.[45]Report of the Government of India Committee on the Status of Women (1974) highlighted the low number of women in political bodies and recommended that seats should be reserved for women in panchayats and municipal bodies. Two members-Lolita Sarkar and Vina Masumdar asked for reservation in all legislative bodies.[46]However, to this date, the issue of reservation of seats for women in legislative bodies still remains debated. Even after several years of independence, women have a very low representation. It is just 11.42% in the current 16^th Lok Sabha and the average in 2008 in State Legislative Assemblies was just 6.94%.[47]In more than 60 countries there are electoral quotas for women and in India we still have not passed the Women Reservation bill, which is pending in Lok Sabha since 1996. To have such low representation of women in legislative bodies defies the spirit of democracy and inclusive growth.[48]

IPC: Adultery and Reverse Discrimination

Indian Penal Code (IPC), 1860, is the general penal law of India. It deals extensively with general offences. Generally, most of the offences are gender-neutral even though the language of IPC is not gender-neutral which issue has been resolved by defining gender. Robbery, Theft, Extortion, Murder, Fraud, Defamation, Abduction, etc. are such offences, where any person, irrespective of sex, who commits is punishable. But, there are certain offences which are gender-specific, i.e. they can be committed only by males or they can be committed only against a woman. If the same act is done by a woman, there will be no offence committed in the eyes of law. One such offence under the IPC is the offence of “adultery”.

Section 497 of IPC states that the offence of adultery is constituted when a man:

• Has sexual intercourse with a woman;
• With the knowledge or adequate reason to believe that she is married to an another man;
• Without the connivance or consent of such man;
• Provided the act of sexual intercourse does not amount to rape;

The section punishes the man who has such sexual intercourse with a married woman with an imprisonment of either description for a term which may extend to five years, or with fine, or with both. However, the section does not subject the adulterous woman to the same kind of punishment.

In the case of adultery, only the man is considered to be the aggrieved party. Therefore, the wife of the adulterous man cannot file a suit against her husband for committing adultery. This is because of a silly assumption that only the husband has the right to conjugate with his wife and no one else. Moreover, only the adulterous man can be punished whereas the adulterous woman cannot be punished. This prima facie disparity and discrimination was challenged several times as violative of Articles 14 and 15 of the Indian Constitution. But the Supreme Court, rejecting the pleas, has justified its stand on the ground that the adulterous woman is a victim and not the author of the crime. It further rejects the argument that S. 497 is gender- biased by not allowing women to file a case against her adulterous husband. Reconciliation of the matrimonial institution is seen as a justification.^[49] Therefore, it must be realised that Section 497 of IPC is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery. The law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law.[50]However, a woman is allowed to file a civil suit, applying for divorce, against her husband for committing adultery.^[51]

Recently in 2012[52], the constitutionality of the section was re-challenged on the following grounds:

• A woman can neither be a complainant under the impugned section nor can she attract liability as either an offender or an abettor, thus being clearly gender-biased.
• Lord Macaulay had not inserted the said provision in the first draft of the IPC. Even in the 1971 Law Commission Report, displeasure had been expressed at the provisions of Section 497. A recommendation in this behalf was also made by the Justice Malimath Committee on Reforms of Criminal Justice System in 2003

The bench in the above case observed, “The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of law as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for the offence of adultery. Indeed, the section provides expressly that the wife cannot be punished even as an abettor. Therefore, the mere fact that an offender is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.”

There is some recent advancement in this issue of constitutionality of Section 497 of IPC.

Recently in Joseph Shine v. Union of India[53], a bench consisting of Chief Justice of India Dipak Misra and Justices A. M. Khanwilkar and D.Y. Chandrachud admitted and issued notice on a writ petition challenging the validity of Section 497 of the IPC, in so far as the impugned section extends immunity to women from prosecution for the offence of adultery, even as an abettor. The bench made the following observations:

• Even though section 497 provides relief to women by making only one party liable for the criminal offence, it remains to be seen if conferment of affirmative rights on the woman can go to the extent of treating her as a victim to the peril of the husband.
• The wife cannot be treated as a commodity by leaving her at the discretion of her husband to give consent to the act.

Based on such observations, the honourable Supreme Court in its order held, “Section 497 of IPC tantamount to subordination of a woman where the Constitution grants equal status. The provision really creates a dent on the individual identity of a woman when the emphasis is laid on the connivance or consent of the husband. A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice.”

When it comes to adultery (S.497) both man and woman being in pari delicto the law punishes only the man. When the married woman herself consents to the sexual intercourse knowing that it is wrong, how can she still be a victim and not the author of the crime? The basic feature of an ideal marital relationship is “trust”. Adultery shatters that very trust a husband has over his wife. The Supreme Court has been ridiculous all these years by justifying reconcilement of the matrimonial institution after all the damage had already been done.

The Indian law on adultery has been wrong all this time in the name of protective discrimination for women. Definitely, women have suffered a lot since the ancient times and require empowerment. But, IPC should not pit the women against men which is neither good for the society nor for the family. For women, men and trans-genders there should be a uniform penal code. It is hoped that the parliament would take into account the observations made by the Supreme Court above and also the various Law Commission Reports that it has been avoiding from the past in this regard and finally amend this old archaic provision. This provision of law needs to be made gender-equal.

Conclusion

The Indian Constitution is committed towards securing equality and recognizes the importance of reservation as a tool for achieving de facto gender equality. The Legislatures also have taken several steps in order to secure reservation for women in several institutions of the society. However, when it comes to reservation for women within themselves they have been showing a blind eye towards it for several years now. This unfortunate position needs to be changed. Moreover, it is high time that something be done with the old archaic law under Section 497 of the IPC because it is clearly incompatible with Article 15 (3) of the Indian Constitution and the spirit of equality. The matter being pending in the Supreme Court, there is still hope left. Reverse Discrimination as a successful tool to anchor gender equality in India is still under-utilised. Women participation and women empowerment can be enhanced by exploring reverse discrimination in more creative ways.

[1] The Little Oxford Dictionary, Thesaurus and Word Power Guide, Indian Edition, Oxford University Press, Edition 2010

[2] www.definitions.uslegal.com/d/discrimination/

[3] www.legaldictionary.net/reverse-discrimination/

[4] See Preamble to UDHR

[5] Article 2, UDHR

[6] Article 2 (2), ICESCR

[7] Article 3, ICESCR

[8] Article 2, ICCPR

[9] Article 3, ICCPR

[10] Article 4, ICCPR

[11] Article 1, CEDAW

[12] Article 2, CEDAW

[13] Article 3, CEDAW

[14] Article 4, CEDAW

[15] Article 5, CEDAW

[16] Article 7, CEDAW

[17] Article 8, CEDAW

[18] Article 10, CEDAW

[19] Article 11, CEDAW

[20] Article 14, CEDAW

[21] Article 24, CEDAW

[22] Article 1, Inter-American Convention on the Granting of Political Rights to Women

[23] Article 9 (1) of the Protocol

[24] Article 14, COI

[25] Article 15, COI

[26] Article 16, COI

[27] Article 39, COI

[28] Article 42, COI

[29] Article 46, COI

[30] Article 51 A (e), COI

[31] Ashok Acharya, Affirmative Action for Disadvantaged Groups-Across Constitutional Study of India and the US in Rajiv Bhargava ed., Politics and Ethics of the Indian Constitution, Oxford University Press, 2008, p.267

[32] 1990 (3) SCC 130 at p.138

[33] Marc Galanter, Competing Equalities: Law and the Backward Classes in India, Oxford University Press, New Delhi, 1984, p.3

[34] www.merriam-webster.com

[35] AIR 1995 SC 1648

[36] (2005) 5 SCC 172

[37] AIR 2003 SC 3331

[38] (1997) 11 SCC 638

[39] Article 243 D (3), COI

[40] Article 243 D (4), COI

[41] Article 243 T (3), COI

[42] Article 243 T (4), COI

[43] AIR 2010 MP 64

[44] Id para 98

[45] Women in National Parliaments, www.ipu.org

[46] Towards Equality: Report of the Commission on the Status of Women in India, Ministry of Education and Social Welfare, Department of Social Welfare, Government of India, 1974

[47] Reservation of seats for women in legislative bodies: Perspectives, Rajya Sabha Occasional Paper Series-1/2008, www.rajyasabha.nic.in/rsnew/publication_electronic/reserv_women_pers2008.pdf

[48] Women’s Reservation Bill, Lokniti, www.lokniti.org/wome-reservation-bill.php

[49]Yousuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321; Sowmithri Vishnu v. UOI, AIR 1985 SC 1618: 1985 Cri. LJ. 1302 (SC);

[50] V. Revathi v. UOI, AIR 1988 SC 835

[51]S.22 of Indian Divorce Act, 1869 and S. 13 (1) (i) of Hindu Marriage Act, 1955

[52] W. Kalyani v. State Tr. Insp. Of Police and Another, [(2012) 1 SCC 358]

[53] WP (Crl.) No. 194/2017 dated 08/12/2017, retrieved from www.livelaw.in on 09/12/2017

Author : Rajsankar Jayakumar ,Student, V.M. Salgaocar College of Law, Miramar, Panaji, Goa-403001.

The post Reverse Discrimination for Anchoring Gender Equality appeared first on Legal Desire Media and Insights.

The paper is divided into two parts. Part I deals with the unquestioned right given to us by the virtue of Article 19 of the Constitution of India and Part II deals with the untapped human right of asylum seekers.The freedom of speech and expression given in Article 19 finds its way from the British period legislation related to hate speech. However, the backdrop of the ancient legislation was to protect Islam from the criticism offered by the Arya Samaj leaders. However, since then to today, the freedom has grown in magnitude each passing day. The ramifications of the law are much founded in our daily lives. This paper will briefly deal with the recent uproar regarding the movie ‘Padmavati’.     

As regards part II, we need to know that the practice of asylum originated in sanctuaries offered by the holy places in ancient time. Since then institution has developed into various ways.

This article explores the nature of asylum as a general principle of international law.

The interest of both individuals and states are directly involved in asylum. Therefore issues of asylum both from viewpoint of individuals as well as state have been approached in this study. It first examines the relation between asylum and refugee status to a place. It then outlines nature of asylum as a right of individuals. From the viewpoint of states, the nature of issues involved suggests a classification of asylum into territorial and non-territorial. In exploring territorial asylum, rights and duties of states granting asylum needs to be examined. Non-territorial asylum is manifested in diplomatic asylum, consular asylum, maritime asylum, although other kinds of asylum can be conceived as aircraft and military camps.

This study also attempts to look at the practice which is followed internationally in respect of granting of asylum. However, granting asylum is mostly based on realpolitik, rather than principle of non-refoulment. In doing so it encounters: the clash of nation’s perceived interest on one hand, and need of refugees on other in case of Rohingya Muslims.

Part – I

On one hand people making political statements on social media[1] are jailed for their audacity while on the other hand fake news on social media becomes cumbersome. The question, therefore is, where to draw the line? Article 19 of the Indian constitution gives to all its citizens the Right to Freedom of Speech and Expression. Yet, the pertinent question is that how free are we in actuality?

In RomeshThapar v. State of Madras[2], PatanjaliShastri, Chief Justice observed: “Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.”

The article was much extended through the interpretation by the Supreme Court in the famous case of Maneka Gandhi v. Union of India[3]which held that there is no geographical limitation to the exercise of freedom of speech and expression. The citizens have a right to gather information and transmit their views and thoughts not only within India but also in abroad.

However, the right to freedom of speech and expression guaranteed under article 19(1)(a) is not absolute. It is restricted on the basis of the grounds mentioned in clause 2 of the article. The grounds are as follows:

• Security of the State,
• Friendly relations with foreign States,
• Public order,
• Decency and morality,
• Contempt of court,
• Defamation,
• Incitement to an offence, and
• Sovereignty and integrity of India.

The general trend of the judiciary has been that it has upheld the citizens’ right to freedom of speech and expression. For example, in the case of Kishori Mohan v. State of West Bengal[4], the Supreme Court has culled out the difference between law and order, public order and security of State. Anything that disturbs public peace or public tranquillity disturbs public order. But public order cannot be disturbed by merely criticizing the government. However, the ideals of secularism embedded in our constitution have been duly protected by the Supreme Court. A law punishing the utterances deliberately tending to hurt the religious feelings of any class has been held to be valid as it is a reasonable restriction aimed to maintaining the public order.

For the purposes of ascertaining decency the Supreme Court has relied upon the case of R v. Hicklin[5]. The test to check ‘whether the tendency of the matter charged as obscene tend to deprave and corrupt the minds which are open to such immoral influences’was followed in the case of Ranjit D. Udeshi v. State of Maharashtra[6]wherein the court upheld the conviction of a bookseller for the sale of the infamous book ‘Lady Chatterley’s Lover’. The notion of decency and morality changes from time to time and place to place.

Padmavati Controversy

Questions regarding the Right to Freedom of Speech and Expression have gained relevance with the recent furor over the Bollywood movie ‘Padmavati’. Does state have the right to ban a movie which has been granted CBFC certification? Does a movie maker have the right to play with the sentiments of a certain sect of the public? How free and practical is it to produce art that appeals to all? As early as in 1970s and 80s, the Supreme Court had upheld the right of movie makers to exercise their right to speech and expression.[7] The writers as early as in 1990 have commented that if the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence.[8]

The threats and protests of the self-styled Rajput outfit karnisena, and the ban imposed by certain state governments is a blot on the exercise of speech and expression. The creative expression of a film cannot be challenged on such frivolous grounds. The work is a work of fiction.

Rani Padmini features first in the poem ‘Padmavat’ written by ‘Malik Mohammad Jayasi’, a resident of Jayas, Awadh. The only historically verifiable facts are: (1) the attack of Khalji on Chittor (2) the defeat of Rattan Singh. Therefore, the discretion of the film maker was quite wide. However, the public sentiment of the region regarding the queen is quite strong. The local people consider her the epitome of beauty and virtue.

Conclusion

As said by the CBFC chief Mr. Prasoon Joshi, “I condemn any kind of violence but I respect feelings, creativity and the different groups of the society. In light of all these things, the CBFC has to take a well-thought out decision.” The CBFC has taken a balanced view of the situation. The release of the film was delayed and certain amendments were made in the movie including the title that was changed to ‘Padmavat’.Recently, in response to the bans sought by different states, the Supreme Court has held that since CBFC has granted the certificate, there is no valid ground that can be used to ban the release of the movie. Any such ban is a violation of Article 19.

Part – II

Asylum is derived from Greek wordásȳlonwhich means ‘sanctuary’[9]. Asylum is a term which signifies refuge offered by a country. In the past particular places served the function such as an altar, a temple or church, a city or ship. Today asylum generally understood as a place where a refugee may find temporary or permanent shelter.[10]

Hospitality is a variant of asylum. But while asylum is today circumscribed and regulated by international laws and national laws, hospitality remains an expression of character, attitude and tradition rather than of law.[11]

According to Starke, the conception of asylum in international law involves two elements: (1) A shelter which is more than a temporary refuge; and (2) A degree of active protection, on the part of authorities which have control over the territory of asylum.

The Institute of International Law, at its Bath Session in September, 1950, defined the term ‘asylum’ as under:

“The protection which a State grants on its territory or in some other place under the control of certain of its organs to a person who comes to seek.”[12]

Colombia v Peru (popularly known as Asylum Case)[13]

Facts-The Colombian Ambassador in Lima, Peru allowed Víctor Raúl Haya de la Torre, head of the American People’s Revolutionary Alliance sanctuary after his faction lost a one-day civil war in Peru on 3 October 1949. The Colombian government granted him asylum, but the Peruvian government refused to grant him safe passage out of Peru.

Colombia maintained that according to the Conventions in force – the Bolivian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum, the Montevideo Convention of 1933 on Political Asylum – and according to American International Law, they were entitled to decide if asylum should be granted and their unilateral decision on this was binding on Peru.

Judgment-Both submissions of Colombia were rejected by the Court. It was not found that the custom of Asylum was uniformly or continuously executed sufficiently to demonstrate that the custom was of a generally applicable character.

Asylum Seekers & Refugees

Asylum literally means ‘safe haven’. After World War II, asylum became the legal immigration status in developed countries. This status is given to people who have fled their home and country because of persecution. Most developed countries have set up complicated asylum procedures to help them whether someone should get asylum or not. Asylum is also called ‘refugee status.’[14]

1951 United Nations Convention relating to Status of Refugees, an international legal document, defines a refugee as someone who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.  Under the Convention, people fleeing famine and natural disasters are not refugees.

In developed countries, people who apply for asylum are called asylum seekers. They have to wait and see whether they are recognized as refugees or not. However, the majority of people fleeing danger do not apply for asylum because they end up in poorer countries in Middle East and Africa.  A tiny percentage is allowed to resettle in small number of developed countries, including Australia.[15]

Rights of Asylum

Article 14(1) of the Universal Declaration of Human Rights (UDHR), which was adopted in 1948, guarantees the right to seek and enjoy asylum in other countries. Subsequent regional human rights instruments have elaborated on this right, guaranteeing the “right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions.” American Convention on Human Rights, Art.22(7); African [Banjul] Charter on Human and Peoples’ Rights, art.12(3).[16]

1. Right To Asylum A Human Right:One of the defining factors of human rights is that they belong to everyone. It doesn’t matter if you’re a British citizen, a refugee, or an asylum seeker applying to become a refugee, you have the right to be treated with humanity. As part of the Human Rights Convention we all have basic rights, including the right to liberty, life, and free speech, for example.

Previous human rights cases have proven that refugees can’t be sent back to a place that makes them suicidal, that female genital mutilation is form of torture, and that asylum seekers are entitled to accommodation while a decision is being made on their application. Refugees also have the right to family life, so they must be allowed to reunite with their families. If a serious crime is committed against a refugee or asylum seeker, the police have a duty to investigate the crime and punish the offender.

However, this doesn’t mean that asylum seekers in the UK are free to conduct their lives in the same way as British citizens. Many people arriving in this country are kept in immigration detention centres while their claims are investigated. Currently, there is no upper limit on how long an asylum seeker, or failed asylum seeker, can be held in detention, although the Human Rights Court found that unreasonable delays were unacceptable. Asylum seekers are not allowed to claim benefits or work in the UK. If they are destitute and have no other means ofsupporting themselves, they can apply to receive asylum support, which is set at a very low rate.[17]

2.Non-Refoulement: The basic principle of refugee law, non-refoulement refers to the obligation of States not to refoule, or return, a refugee to “the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 1951 Convention relating to the Status of Refugees, art.33(1). Non-refoulement is universally acknowledged as a human right. It is expressly stated in human rights treaties such as Article 3 of the Convention against Torture and Article 22(8) of the American Convention on Human Rights.[18]

In R (on the application of) ABC (a minor) (Afghanistan) v. Sec’y of State for the Home Dep’t[19] and Case of M.S.S. v. Belgium and Greece [GC][20], it was held that principle of non-refoulement prohibits not only the removal of individuals but also the mass expulsion of refugees. e.g., African [Banjul] Charter on Human and Peoples’ Rights, art.12(5).

In elaborating upon the ordinary meaning of the term ‘refouler’ – and hence, the special meaning of the term ‘return’ – an interpretation that it includes exclusion at the border appears valid. Grahl-Madsen has explained: ‘The word “refoulement” is used in Belgium and France to describe a more informal way of removing a person from the territory and also to describe non-admittance at the frontier. It may be applied to persons seeking admission, persons illegallypresent in a country, and persons admitted temporarily or conditionally, in the latter case, however, only if the conditions of their stay have been violated.[21]

Rohingya Muslims Case-Despite living for centuries in Myanmar, the Rohingya, who are mostly Muslim, have been denied citizenship and have been rendered stateless. In February, a United Nations report had documented numerous instances of gang rape and killings, including of babies and young children, by Myanmar’s security forces. Repercussions of the violence in Myanmar are now being felt around the globe, particularly in nearby countries; in India, where scores of Rohingya are lodged — reportedly totaling 40,000 — it must come to us as a matter of shame that the state is so much as considering returning the refugees back to the jaws of not merely political persecution but of mind-boggling terror and savagery. Indeed, it is precisely such an argument that a pair of Rohingya refugees, Mohammad Salimullah and Mohammad Shaqir, have made in a petition filed in the Supreme Court. Their submissions rest on two broad planks: one, that any deportation would violate theirfundamental rights to equality and to life, under Articles 14 and 21 of the Constitution, and, two, that any action by India in returning them to Myanmar would infringe international law, particularly the principle of non-refoulement. It could point out, first, that India is not bound to follow the principle of non-refoulement, since it is not a signatory to the 1951 U.N. Convention Relating to the Status of Refugees, and, second, that, in any event, any deportation would be saved by the exceptions to the principle, in that the Rohingya are guilty of committing crimes against peace and are a threat to India’s national security. However, the present crisis goes beyond matters of mere perception. It goes to the root of what it means to be a civilized state, of treating every person, irrespective of constructs of citizenship, with equal care, compassion and respect[22].

3.Freedom of Movement: Freedom of movement, however, is also a key right for refugees within their host country. For instance,International Covenant on Civil and Political Rights, Article12. Article 26 of the 1951 Convention provides that States shall afford refugees the right to choose their place of residence within the territory and to move freely within the State. Meanwhile, Article 28 obliges States parties to issue refugees travel documents permitting them to travel outside the State “unless compelling reasons of national security or public order otherwise require.”

Countries such as Kenya and Ethiopia specify in their national laws that the movement of refugees throughout the country may be restricted and that refugees may be limited to living in designated areas, namely refugee camps. National Refugee Proclamation, No. 409/2004, Art.21(2) (Eth.); Refugees Act (2014) Cap.173 § 12(3) (Kenya).[23]

4.Right To Family Life:The family is seen as the “natural and fundamental group unit of society and is entitled to protection by society and the State (International Covenant on Civil and Political Rights, Article 23(1). In respect of this right, a number of countries provide for the granting of derivative status to dependent relatives. Thus, where an individual is granted asylum, his or her dependent relatives will also receive protection through him or her. [24]

5. Other Rights:The 1951 Convention also protects other rights of refugees, such as the rights to education, access to justice, employment, and other fundamental freedoms and privileges similarly enshrined in international and regional human rights treaties. In their enjoyment of some rights, such as access to the courts, refugees are to be afforded the sametreatment as nationals while with others, such as wage-earning employment and property rights, refugees are to be afforded the same treatment as foreign nationals.[25]

Classification of Asylum

Asylum may be territorial i.e., granted by State on its territory; or it may be extra-territorial, i.e., granted to fugitives by a State within the precincts of embassies or legations abroad. The former is called ‘territorial asylum’ and latter ‘diplomatic asylum’.The distinction between territorial and diplomatic asylum was explained by International Court of Justice in the Columbian-Peruvian Asylum Case.[26]

“In case of extradition (territorial asylum), the refugee is within the territory of the State of refuge. A decision with regard to extradition implies only the normal exercise of territorial sovereignty, the refugee is outside the territory of the State where the offense was committed, and a decision to grant his asylum in no way derogates from sovereignty of the state.”

“In the case of diplomatic asylum, the refugee is with the territory of the State where the offense was committed. A decision to grant diplomatic asylum involves derogation from the sovereignty of that state. It withdraws the offender from the jurisdiction of the territorial state and constitutes an intervention in matters which are exclusively within the competence of that State. Such derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case.”

Territorial Asylum: Territorial asylum is the one granted by a state in its territory. Territorial asylum is not usually granted to ordinary criminals.  It is designed and employed primarily for the protection of persons accused of political offences such as treason, desertion, Sedition, religious refugees.  A well known case is Dalai Lama of Tibet.The General Assembly said in the Declaration of territorial asylum (1967) that the grant of asylum is a humanitarian act and it cannot be regarded as unfriendly by another state. But adds, states granting asylum shall not permit persons engaged in activities contrary to the purpose and principles of the U.N[27]

Dalai Lama’s Case:At the beginning of the 20th century, Tibet increasingly came under Chinese control, and in 1950 communist China invaded the country. One year later, a Tibetan-Chinese agreement was signed in which the nation became a “national autonomous region” of China, supposedly under the traditional rule of the Dalai Lama but actually under the control of a Chinese communist commission. The highly religious people of Tibet, who practice a unique form of Buddhism, suffered under communist China’s anti-religious legislation.

After years of scattered protests, a full-scale revolt broke out in March 1959, and the Dalai Lama was forced to flee as the uprising was crushed by Chinese troops. On March 31, 1959, he began a permanent exile in India, settling at Dharamsala in Punjab, where he established a democratically based shadow Tibetan government. Back in Tibet, the Chinese adopted brutal repressive measures against the Tibetans, provoking charges from the Dalai Lama of genocide. With the beginning of the Cultural Revolution in China, the Chinese suppression of Tibetan Buddhism escalated, and practice of the religion was banned and thousands of monasteries were destroyed.[28]

Case against a uniform asylum law: Baloch leader BrahamdaghBugti’s request for asylum in India has prompted calls for a uniform and apolitical asylum law.If Mr. Bugti is accepted, it would not be the first time that Indian asylum has been politicized. The political repercussions of welcoming the Dalai Lama in 1959 continue to be felt. The Dalai Lama has never been officially recognized as a refugee; he remains an “honored guest” — diplomats for political asylee. On the other hand, India hosts refugees from Tibet and elsewhere who fled persecution and conflict. For refugees, a law will regularize their stay in India and guarantee essential freedoms. But the law need not be uniform. Indeed it should vary so that victims of targeted persecution are individually protected, large groups fleeing war are protected as a group, and people displaced by natural disasters are given transient protection. The same law can allow the government to grant asylum to anyone it pleases, irrespective of what that person has done or where in the world he or she is located.[29]

Rights of States to Grant Territorial Asylum:  A Stateto grant territorial asylum to an alien rooted in principles of customary international law. It is free to admit an alien to its territory and, if it chooses to do so, it can put such conditions on his admission as it pleases. It is exclusive territorial sovereignty of the state, coupled with its right to admit alien to its territory, which gives it a right to accord territorial asylum and this right, has been widely practiced, particularly with respect to respect political refugees. The discretion to give or refuse asylum on its territory belongs entirely to the State, although a moral obligation to accord asylum is suggested.[30]

Duties of State Granting Territorial Asylum:

1. Duty to control activities of the person to whom asylum is given: Generally, speaking International Law imposes duty on a state to prevent to prevent persons within its territorial jurisdiction from engaging into acts which endanger the safety of another state. Therefore, the state of asylum must not let the fugitive do such things as, for example, organize hostile expeditions against his state of origin, or prepare crime against his personage or property.
2. Duty with respect to extradition:Extra Territorial Asylum: Active protection is given outside the territory not belonging to the state granting it. Thus, when Asylum is granted by a State at places outside its own territory. It is called ‘Extra-territorial Asylum’. It usually describes to those cases in which a State refuses to surrender a person demanding who is not upon its own physical territory but is upon one of its public ships lying in foreign territorial borders or upon its diplomatic premises within foreign territories. Thus Asylum is given at legation, consular premises and warships are the instances of extra-territorial asylum.Diplomatic Asylum / Asylum in Legation- Since granting extra-territorial Asylum or diplomatic Asylum involves derogation from the sovereignty of the State, International law ordinarily does not recognize a right to grant asylum in the premises of legation. But asylum may be granted in the legation premises in the following exceptional cases.

1)  Individual who are physically in danger from violence.

2)  Where there is well established and binding local custom.

3) When there is a special treaty between territorial State and the state of Legation concern.

Asylum in consular premises –The above principle also applies in the case of Grant of asylum in consular premises.

3. Asylum in the premises of international institution – Though International Law does not recognize any rule regarding the grant of asylum in the premises of International institution, however, temporary Asylum may be granted in case of danger of imminent violation. Eg, Najibullah, former president of Afghanistan sought refuge in UN headquarters in Kabul, later he was killed by Taliban.
4. Asylum in Warship – There are conflicting views to grant of asylum in warship, but it is argued that Asylum may be granted to political offenders.

As far as an asylum Warship is concerned, it may be granted on the ground of humanity, in cases if extreme danger to the individual seeking it. Thus, right to grant asylum on Warship may be granted in the same way in the case of Legation and also subject to the operation of the same conditions.

5. Asylum in Merchant Vessels – Since merchant vessels do not enjoy immunity from local jurisdiction, they are not competent to Grant asylum to local offenders. Thus, if a person after committing a crime on shore seeks asylum on board a foreign merchant ship he may be asserted by the local police, either before the ship leaves the port or when it comes into another port of the same State. There is, therefore a rule that asylum is not granted on merchant vessels. However, State may grant asylum if they conclude a treaty to this effect.
6. Asylum in the premises of international Institutions- Whether a person taking refuge in the premises of an international institution or organization would be granted asylum is a question which cannot be given with certainty in the absence of any rule in this regard and also because of lack of practice. However, a right to grant temporary refuge in an extreme case of danger from mob cannot be ruled out.

Thus, in Extra-territorial or diplomatic Asylum, Asylum can be granted in exceptional cases and it is necessary to establish legal basis in each particular case.

Asylum Practice Internationally

1. American Practice – Every year people come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to:

• Race
• Religion
• Nationality
• Membership in a particular social group
• Political opinion[31]

The United States recognizes the right of asylum for individuals as specified by international and federal law. A specified number of legally definedrefugees who either apply for asylum from inside the U.S. or apply for refugee status from outside the U.S., are admitted annually. Refugees compose about one-tenth of the total annual immigration to the United States, though some large refugee populations are very prominent. Since World War II, more refugees have found homes in the U.S. than any other nation and more than two million refugees have arrived in the U.S. since 1980. In the years 2005 through 2007, the number of asylum seekers accepted into the U.S. was about 40,000 per year. This compared with about 30,000 per year in the UK and 25,000 in Canada. The U.S. accounted for about 10% of all asylum-seeker acceptances in the OECD countries in 1998-2007. The United States is by far the most populous OECD country and receives fewer than the average number of refugees per capita.

Asylum has three basic requirements. First, an asylum applicant must establish that he or she fears persecution in their home country. Second, the applicant must prove that he or she would be persecuted on account of one of five protected grounds: race, religion, nationality, political opinion, or social group. Third, an applicant must establish that the government is either involved in the persecution, or unable to control the conduct of private actors[32]

2. British Practice

• The UK asylum system is strictly controlled and complex. It is very difficult to get asylum. The decision-making process is extremely tough and many people’s claims are rejected.
• Initial Home Office decision-making remains poor. In 2016, the courts overturned Home Office decisions in 41% of asylum appeals. (Home Office asylum statistics February 2017)
• There are particular problems with decisions on women’s claims. Women who turn to the courts for help when their asylum claims are refused are more likely to have their protection needs recognized by the courts. Women tell us that it is in part because the asylum system can feel very hostile and it is difficult for them to give full details of the violence they have experienced.
• In 2016, 13,230 asylum seekers had been locked up in detention centers. Shamefully, around half of all asylum seekers find themselves detained during the asylum process. Despite the Government’s 2010 pledge to end child detention for immigration purposes, 71 children were imprisoned during 2016.
• Since 2005 most people recognized as refugees are only given permission to stay in the UK for five years. This makes it difficult for them to make decisions about their future, to find work and make definite plans for their life in the UK. [33]

3. Indian Practice

• As per UNHRC, the UN refugee agency asylum seekers are individual who have sought international protection and whose claims for refugee status have not yet been determined.
• Refugee individuals recognized under 1951 convention relating to status of refugees.
• At the end of 2015 according to UN refugee body, there were 2,07,861 persons of concerns in India of whom 2,01,281 were refugees and 6480 asylum seekers.
• India has offered shelter to TibetiansChakmas of Bangladesh, Afghans & ethnic Tamil Refugees from Sri Lanka.
• India has not yet signed 1951 UN refugee convention nor must the 1967 protocol that stipulates the rights and services host state provide refugees.
• India has one of the largest refugee populations in the world that doesn’t have a uniform law addressing the concern of refugees.

There are laws consulted by Indian authorities with regard to refugees and asylum seekers.

1. The Passport Act 1920 & 1967.
2. Registration of Foreigner Act 1946
3. Foreigners Order 1948.

Legal Position in Tamil & Tibet Refugees

• The initial wave of refugees who arrived in India in 1959 with Dalai Lama were regarded as refugee and given asylum.
• The land & housing which they were offered were discontinued & even RC that allowed them to enjoy all privileges of an Indian citizen except the right to vote & work for government.
• Tibetian refugees are also issued an IC (Identity Certificate) from RPO’s on the recommendations of Bureau of His Holiness the Dalai Lama (HHDL) New Delhi.
• Sri Lanka refugees are classified as (a) Camp Refugees (b) Non Camp Refugees Based on socio economic parameters.
• They can’t own land/ vote but are allowed to own cattle & purchase items of domestic use.
• They are also issued Refugee Cards by revenue inspector of their camps required for their return to Sri Lanka.

Refugees of Pakistan, Afghanistan & Bangladesh

• In 2016, government approved various facilities aimed at easing difficulties faced by minority communities.
• They were allowed to open banks accounts, purchase properties for self occupation and suitable accommodation for carrying out self employment, take self employment and obtain driving license, PAN cards and Aadhar number.[34]

Realpolitik And Asylum

Realpolitik has been defined as “politics or diplomacy based primarily on power… rather than ideological notions or moralistic or ethical premises.”

As applied to asylum law, realpolitik means that the receiving country is not concerned about whether the applicant meets the international law definition of refugee. Rather, the receiving country has some ulterior motive for granting asylum; it hopes to benefit itself or harm a rival by granting refuge.[35]

Edward Snowden Case:Edward Joseph Snowden is an American computer professional, former Central Intelligence Agency (CIA) employee, and former contractor for the United States government who copied and leaked classified information from the National Security Agency (NSA) in 2013 without authorization. On June 21, 2013, the U.S. Department of Justice unsealed charges against Snowden of two counts of violating the Espionage Act of 1917 and theft of government property. Two days later, he flew into Moscow’s Sheremetyevo Airport, but Russian authorities noted that his U.S. passport had been cancelled and he was restricted to the airport terminal for over one month. Russia ultimately granted him right of asylum for one year, and repeated extensions have permitted him to stay at least until 2020. He reportedly lives in an undisclosed location in Moscow, and continues to seek asylum elsewhere in the world.[36]

In Mr. Snowden’s case, it’s not hard to imagine why certain countries–Russia, China, Bolivia, Venezuela, and Nicaragua–have been willing to facilitate his journey. Maybe by assisting Mr. Snowden, these countries hope to improve their own image while bringing the U.S. down a notch or two. In addition, all these countries might want to show the world that they are not afraid to stand up to the U.S. Another reason that the different countries might offer asylum to Mr. Snowden is that they want to encourage people who damage the U.S. government’s foreign policy.

Rohingya Muslims In India– The Rohingyaare a majority-Muslim ethnic group, often described as “the world’s most persecuted minority”, who have lived for centuries in the majority Buddhist Myanmar, where they have faced growing violence and persecution as Innocent people are being killed and facing genocide in their home country. That has forced hundreds of thousands to flee to neighboring countries. Around 40,000 Rohingya Muslims have fled to India over the past decade, out of which 16,500 are registered with the UN’s refugee agency. New Delhi wants to deport the 40,000 Rohingya Muslims currently residing in India amid concerns of terror threats.

Why India wants to deport the Rohingya?

The belief in New Delhi is that Rohingya refugees will increase India’s terrorism exposure, which is already at high levels amid threats from Pakistan-based insurgents.The Rakhine crisis has triggered warnings of extremist violence around the region as organizations like Al-Qaeda urge followers to avenge the Rohingya. New Delhi is particularly concerned that Rohingya refugees could be members of the Arakan Rohingya Salvation Army, or ARSA. Officials believe ARSA, an armed militia responsible for August’s attack on Burmese security forces, may be linked to trans-national fundamentalist networks, but the Rakhine-based group has rejected such claims.[37]

Suggestions and Conclusions

Asylum cases always implicate international relations. But the hope is that realpolitik can be minimized in order to provide protection to people fleeing persecution, regardless of the political consequences of granting (or denying) asylum. Refusing admission to prevent aliens from seeking asylum is not a just solution of this issue. So, the protection for those fearing persecution at home could be improved by better balancing the interests of the world community, the individuals in need of protection, and the individual states, and all states in the world community should share equally in the care of those in need of refuge.

END NOTES

[1] In November 2012, two girls were arrested for making a post condemning the bandh in the city due to the death of Bal Thakeray.

[2] 1950 SCR 594

[3] 1978 AIR 597

[4] AIR 1972 SC 1749

[5] L.R. 3 Q.B. 360 (1868).

[6] AIR 1965 SC 881

[7] K.A. Abbas Case

[8] A. G. Noorani, TV Films and Censorship, Economic and Political Weekly, Vol. 25, No. 6 (Feb. 10, 1990), p. 300

[9] www.dictionary.com access dated: 16/09/17; time: 18:51

¹⁶ Plaut Graunther W., Asylum: Moral Dilemma(1995) p.11

[11] ibid

[12] Tandon P.M., Public International Law(2012) p.217

[13] [1950] ICJ 6

[14] Teichmann Iris, Immigration & Asylum(2002) p.8

[15] Ibid p.9

[16]http://www.ijrcenter.org/refugee-law  access: dated 16/09/17 ;time 21:00

[17] https://rightsinfo.org/rights-asylum-seekers/; access dated: 16/09/17; time:21:22

[18] http://www.ijrcenter.org/refugee-law ibid

[19] [2011] EWHC 2937 (Admin.) (U.K.); ECHR

[20] no. 30696/09, ECHR 2011, Judgment of 21 January 2011

[21] https://openaccess.leidenuniv.nl/bitstream/handle/1887/16699/04.pdf access dated 21/09/17 ; time 22:42

[22] Reference: The Hindu (Newspaper)

[23] http://www.ijrcenter.org/refugee-law  access dated 17/09/17; time 18:03

[24] Ibid access dated 17/09/17; time 18:29

[25] ibid

[26] 20 November,1950  I.C.J. Reports,1950

[27] http://internationallawu.blogspot.in/2012/11/asylum.html#!/2012/11/asylum.html  date 20/09/17; time 22:01

[28] http://www.history.com/this-day-in-history/dalai-lama-begins-exile date 20/09/17; time 22:17

[29] http://www.thehindu.com/todays-paper/tp-opinion/Case-against-a-uniform-asylum-law/article15882290.ece access 20/09/17 ;time 22:32

[30]  Sinha Prakash S. ,Asylum and International Law, p.156

[31]https://www.uscis.gov/humanitarian/refugees-asylum/asylum   date 24/09/17 ;time 00:53

[32]https://en.wikipedia.org/wiki/Asylum_in_the_United_States  date 24/09/17; time 00:50

[33]https://www.refugeecouncil.org.uk/policy_research/the_truth_about_asylum/facts_about_asylum_-_page_5  date 24/09/17; time 00:55

[34] http://www.snmiasacademy.com/blog/indian-asylum-policy  date 25/09/17; time 01:00

[35] http://www.asylumist.com/2013/07/10/edward-snowden-and-the-realpolitik-of-asylum  date 25/09/17;time 19:05

[36] https://en.wikipedia.org/wiki/Edward_Snowden  date 25/09/17; time 19:10

[37] https://www.cnbc.com/2017/09/20/myanmars-refugee-crisis-is-a-test-for-india-and-narendra-modi.html date 25/09/17; time 20:43

Author : Garima Goyal, Shivangi Chandra,Students, Symbiosis Law School, Noida.

The post The Unquestioned and Untapped Human Rights appeared first on Legal Desire Media and Insights.

Human Rights of Refugees are one of the major problems of the world. According to Article 1 of United Nations Convention on Status of Refugees, refugees are those who are “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.”[1]

They move to other countries when their life is in constant threat due to various reasons and not perfect for their healthy survival. Many countries in the world have a proper rule governing refugees living in their country and the protection that should be given to them but in India, there is no uniform legal framework.

India is a country where there are many refugee groups from different countries, majorly from its neighbouring countries. It doesn’t have any suitable refugee rules and is neither a signatory to the 1951 UN Convention nor 1967 protocol on Status of Refugees. Many countries have adopted binding regional instruments for the protection of refugees, but there is no instrument to protect the refugees of the Asian region.[2] India has followed ad-hoc policies about refugee settlements since its independence. There are a large number of refugees in India due to its geographic location, religious society, vast culture. Currently, Rohingya refugees are a major concern to India. There are numerous aspects pertaining to refugees which are of major importance both to India, as a country and to the refugees, particularly in the context of law implementation.[3] UNHRC and HNRC are the bodies of Human Rights of the UN and India respectively. Major Refugee issue in India was because of the India-Pakistan partition of 1947, when there were millions of population exchanges between these newly formed countries. Some major Refugee groups in India are from Iran, Tibet, Bangladesh, Pakistan, Afghanistan, Sri Lanka, Myanmar.

Jordan, Pakistan, Ethiopia, Iran, Turkey host the largest number of refugees as of 2016.[4] Refugee protection is a great concern to the international community ever since the formation of the United Nations and the issue hasn’t been solved yet. Migration was a problem ever since the ancient times. Tribal people migrated in search of food, water, and resources, now the refugees migrate for safety and other reasons.[5] There are 15.2 million refugees worldwide and 1 million are waiting for their asylum application approvals.[6] Refugees face many problems in India as well as the whole world.

1.2 Research Objective

The main objective of this research paper is to present the laws and rights available to refugees in India and other countries. It presents many aspects related to refugees starting from the history of refugees and the current situation of them. United Nations High Commissioner for Refugees (UNHCR) is the main organization to provide international protection to refugees and assist them in other manners.[7] In India National Human Rights Commission (NHRC) is the body which was given statutory basis by Protection of Human Rights Act, 1993 which is responsible to protect the refugees and promote human rights. The paper also has the information about Laws and conventions regarding refugees. Many countries like Australia, Brazil, China, etc. continuously provide support and legal assistance to many refugees. There are a huge number of refugees in India but it has no specific laws related to their rights. India’s is not a signatory to the 1951 Refugee Convention, and the question is why? Is there a need for a South Asian Convention on Refugees? The Major refugee crisis in the World is also an issue to the UN. This paper will inform research scholars and refugees about the refugee laws, history, conventions and rights of refugees in India and the world.

1.3 Research Methodology

In order to find the above information, a number of research methods were employed. The doctrinal method of research was involved. The traditional methodology of research i.e., from the research scholars, is used. Information related to conventions and other materials related to UNHCR and NHRC are also used. Books on Human Rights to refugees, web articles, research papers were also used. The analysis of rights of refugees in India is brought from the statutes, case laws, books, articles, journals, webpages.

 2.1 History of Refugees

2.1.1 History of Refugees in the World

Asylum seekers are existing from many years, the early man used to migrate for finding food, shelter and other resources. Around AD 600, the right to seek asylum in a holy place or a church was codified in law by King Ethelbert of Kent. Many such laws were rising around Europe during the Medieval Period which was the start of such provisions. But, it was the 18^th century when it was required for people to show id verification to cross borders in many countries.

Many wars in the past were the main reason for the refugees to leave their places. The Balkan Wars caused 80,000 refugees to migrate.[8] The Civil war of Spain, USA, Russian Revolution of 1917 also caused people to become refugees. The League of Nations was the body that caused the first international refugee affairs.

The biggest Refugee crises occurred during the World Wars. The first world war lasted almost 4 years. One million refugees of Belgium went to the Netherlands and there on transferred to the UK and other countries. France, Germany were also the worst affected. When Russia attacked Prussia, 870000 fled.[9] World War 2 was one such war which never happened in the history of the world. By 1959 some 900,000 European refugees were taken by European countries. And 461,000 had been accepted by the USA, and 523,000 by other countries.[10] World War 2 caused around 60,000,000 refugees in Europe itself.

2.1.2 History of Refugees in India

Indi is a very vastly populated country and is one of the countries experiencing refugees lately. Migrations in the past occurred due to the Hindukush Mountains in the west and Patkoi ranges in the east. Partition of India–Pakistan resulted in a huge number of people migrating. Almost 20 million came to India after India got its Independence. It had to set up many relief camps addressing the huge number of refugees. People started coming in from Bangladesh, Pakistan. It passed the Rehabilitation Financial Administration Act in the year 1948 to address these issues with funding. A Huge number were displaced from India to Pakistan and vice versa and the problem was much similar to Refugees. Another instance was in 1959 when Dalai Lama and his followers approached India as refugees and India provided them a Political Asylum. The year of 1971 saw many refugees travelling from East Pakistan to India. In 1983 and 1986 India had refugees coming in from Sri Lanka and Bangladesh respectively. At the end of 1992, India has hosted 2,000,000 migrants and 237,000 displaced persons.[11] India always has some or the other Refugees coming in throughout its history.

2.2. Major Refugee Groups

The worst affected situation in the history of the world was because of the World War 2, which caused almost 60 million people getting displaced.5.1 million Palestinian have fled their homes because of the Israeli-Palestinian Conflict. Ever since the US launched a war on Iraq, 4 million were displaced. According to UNHCR, 647,781 Vietnamese refugees are resettled around the world, the war of Vietnam gave rise to 1.6 million refugees which included the mountain people of Vietnam as well. Kakuma Refugee Group in Kenya are 184,550, refugees are from South Sudan and Somalia. The refugee crisis in the Middle East and Africa caused almost 4.1 million to flee from Syria itself.

Soviet Jews have been migrating to the Us for decades, almost 380,000 refugees have migrated. Between 1945 and 1952, 137,000 Jewish refugees settled in The United States of America. Refugees of Myanmar (Burma) fled the country during the Vietnam civil war and settled in Australia, Canada, USA, New Zealand. In the recent years, Rohingya refugees which are a group of Muslim minorities whose basic human rights were denied. 1000’s of them now live in India, Bangladesh, and other countries. Rohingya’s were declared as most persecuted group by UNHCR.

2.3. Countries providing support to Refugees

Many countries are actively helping and safeguarding refugees by providing them shelter, medical help, and many other necessities. Due to the war in Syria, almost 4 million people fled Syria since 2011 and 1 million settles in Lebanon. On the whole, Germany has taken 1 million refugees in 2015 itself and provided them with all kinds of support. They welcomed them with open hearts and even hosted banners in football stadiums stating “Welcome Refugees”. In Germany, Right to Asylum is a constitutional right. The Asylum Act and Residence Act provide rules and procedure for taking refugees. An in-person interview of the refugee is conducted and experts of that country are consulted before accepting the application.[12]

Sweden accepts refugees coming from the border and also accepts quota refugees from UNHCR. In the year 2015, it took 160,000 applications for asylum and are given only temporary residence, but before asylum seekers were given permanent residence. Refugees are given many free services in the country. During the 2013 Iraq War, it took more number of refugees than US and UK combined.[13] Monetary Aid, Health Care, Schooling, Passports are all provided to the refugees.

Brazil has a constitutional provision that grants asylum to aliens. The accepted refugees are allowed to freely move in the country and also select their place of residence as per the Convention on Territorial Asylum. It is also a signatory to the 1951 convention on Refugees.

European Union objective was to establish a Common European Asylum System (CEAS). Under CEAS, international protection is given to those who qualify as refugees due to a well-founded fear of persecution. Right to Asylum and prohibition of refoulment is guaranteed by the Charter of Fundamental Rights and 1951 Refugee Convention and its 1967 Protocol. The CEAS is composed of a number of regulations and directives that require action by the EU Member States.  CEAS is composed of several directives and regulations which have been recast previously.[14] Many other countries provide support for refugees – Australia, Canada, China, France, Italy, Kenya, Lebanon, Turkey, United Kingdom and many other countries.

2.4. Rohingya Refugee Group

Rohingya people are also known as Arakanese Indians who are stateless people from Myanmar. They are declared by UN as the most persecuted minorities in the world.[15] The Rohingya population was denied citizenship according to the 1982 Myanmar Nationality Law. They had to flee due to the ongoing military crackdown by the Myanmar Army. More than 6700 Rohingya’s were killed in August 2017.[16] They are in heavy numbers in different cities in India, but the government of India does not recognize them as refugees. Most of those refugees have migrated to Bangladesh. There was a mass displacement of refugees and forced relocations. Rohingya refugees face multiple protection risks as of December 2017. Though India refused to let Rohingya refugees enter the country as it posed security threats, 40,000 refugees have taken shelter in Assam and West Bengal. There’s a threat because the Rohingya Military group has been declared terrorist by counter-terrorism authority of Myanmar. Many countries urged Myanmar to end the violence against this minority to restore peace in the country. China always stays away from internal interferences of other countries, but it mediated for Myanmar and Bangladesh. Though Bangladesh has stood up to help those refugees, its falling short of resources. In the case of Dongh Lian Khan v. Union of India the Delhi High Court held that the principle of non-refoulment is part of the guarantee under Article 21 of the Constitution of India irrespective of nationality.[17] In the case of NHRC vs Arunachal Pradesh, the Supreme Court held that the state is bound to protect the life and liberty of every human being, citizen or otherwise. Even then India is not ready to take Rohingya refugees and help them.[18]

3.1 Problems faced by Refugees

Refugees who needed up in different refugee camps or different countries face any problems with their life. They are subject to harsh living conditions. They have limited resources, live in tents, have limited food, water, clothing. They live without adequate shelter and face many difficulties. Those who do not join refugee camps and join countries, often face unexpected hardships, they also face cultural, language problems. The refugee children are the ones facing the most of the problems. They find it very hard to continue with schooling and fail to understand and cope up. Most refugees take up some or the other labour work in the country they are living and are exploited by the recruiters. They feel unsafe in their country, because of which they come to the new place, but feel unhappy and unsafe here as well. Different countries have different set of rules handling refugees, some countries grant citizenship in less number of years than the other. The perks of being a refugee in one country are different than the other. They face discrimination, financial difficulties, and are psychologically affected.

4.1 India’s Stance in 1951 Convention

There are 144 signatories to the 1951 Refugee Convention, and India is not one of them. The Refugee Convention is about the rights of individuals who are refugees in other countries and the responsibilities of the nation hosting them. India faces a lot of pressure from International bodies about it not being a signatory to the Refugee convention. Taking into consideration, the political, economic, ethical factors prevent India from being a party to 1951 Refugee Convention. India is a developing country and it would be a burden if it complies with the convention and becomes a signatory, and affect the security laws of India. It felt the convention is not related to the problems arising in India, but it is applying some articles from the 1951 convention. India believes even if it’s not a signatory, it would provide minimum reeds for a refugee. India has many problems with its border sharing countries, due to which it took that decision. If it becomes a signatory, it will have to provide more and more resources and other things for the refugees. After 1991, due to the execution of Rajiv Gandhi by a Sri Lankan refugee, India supported its stance for the very same reason. Refugees damage the economy of India as well, as many come to India in search of opportunities.[19] It is afraid that people may come to the country names as refugees for various reasons and misuse the convention for better opportunities. Should India be a signatory to the Refugee Convention or its Protocol is still a question that has both pros and cons.

5. Refugee Status in India

5.1. Constitutional Protection

A few articles of the Constitution of India are applicable to the refugees when they are in India. The most important Article is Article 21 which deals with Right to Life and personal liberty, it applies to everyone irrespective of whether they are a citizen of India. Many judgements have been given based on Article 21 on refugees. [20] Article 14 guarantees the person right to equality before the law.  Article 5, 6, 7, 8, 9, 10,11,12, 20, 22,25-28, 32, 226 also available for non-citizens of India including Refugees.[21] In the case of Louis De Raedt v. Union of India, the court held that the fundamental rights to life, liberty, dignity are available to non-citizens of India.[22] In the case of Visakha v. State of Rajasthan, the court has held that “International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein”.[23]Some fundamental rights are guaranteed to non-citizens of India. In the case of NHRC v. State of Arunachal Pradesh, the government was asked by the court to safeguard the life, health, of Chakmas that are in the state and that their application for citizenship should be sent to the authorities concerned immediately.[24] There are definitely a number of protections to the refugees living in India according to the Constitution of India but are hardly in practice. The cases and the provisions of the Constitution gives a hint about intention to help refugees, but due to India’s own reasons it doesn’t sign any Conventions related to it.

5.2. Laws in India and Role of Judiciary

We only have the Refugee and Asylum (Protection) Bill of 2009, no definite legislation regarding Refugees is available in India but the main legislation that supports is the Foreigners Act of 1946 which on the difference of Alien and Refugee create further persecution of the Refugee. The laws related to refugees are:

• Citizenship Act, 1955 (No.57 of 1955)
• Extradition Act, 1962 (No. 34 of 1962)
• Foreigners Act, 1946 (No.31 of 1946)
• Illegal Migrant (Determination by Tribunals) Act, 1983 (No.39 of 1983)
• India Penal Code Act, 1860 (No.45 of 1860)
• Passport (Entry into India) Act, 1920 (No.34 of 1920)
• Passport Act, 1967 (No.15 of 1967)
• Protection of Human Rights Act, 1993 (No.10 of 1994)
• Registration of Foreigners Act, 1939 (No.16 of 1939).[25]

Refugees are considered under the term ‘alien’ in India. The term appears in Constitution of India (Article 22), Section 83 of the Indian Civil Procedure Code, Section 3(2)(b) of the Indian Citizenship Act, 1955, as well as some other statutes. Most of the acts cause further complications to the refugees. The Foreigners Act, 1946 give the officials power to arrest or detain any foreigner on mere suspicion for non-compliance.[26] The current laws in India are not sufficient in order to protect refugees and need a much greater law for the protection of refugees. According to the Principle of Non-Refoulment, no country shall deport, expel or forcefully return the refugee back to his original territory against his will or if there is a reasonable threat to his life, liberty and freedom.[27]

Judiciary plays an important role in protecting refugees, many cases gave landmark judgements regarding refugees. The judiciary has made it easy with the concepts of Social Action Litigation and Public Interest Litigation.

Right to basic amenities: In Digbijay Mote v. Union of India, an NGO was running a school for the Sri Lankan refugees, When PIL was made when the condition to run the school was difficult, Ministry of Women and Social Welfare provided financial assistance to the school.[28] In Majid Ahmed Abdul Majid Mohd Jad Al Hak v. Union of India, basic amenities like food and medicines must be provided to the refugees who are in detention.[29]

Non-Refoulment and Right to refugee Status: In Malvika Karelkar v. Union of India, the deportation order issued against 21 Burmese refugees were stayed by the SC and allowed them to seek refugee status under UNHCR.[30]

5.3. UNCHR and NHRC in India

UNHCR in India is participating very actively as the number of cases regarding refugees is increasing day by day. If some refugee goes back to his country after being a refugee in India, UNHCR watches if the person is going back voluntarily. It performs the function of determination of refugee along with providing resources to them. UNHCR got involved since the issue of Tibetan refugees and the Bangladesh crisis in 1971. The Delhi office of the UNHCR works to help refugees become self-sufficient with assistance and income-generating activates with the help of NGO’s. The main role of UNHCR in India is to make sure that the refugees are not forced to go back to their country from which they have fled until the issue rests in their country.[31]

NHRC i.e., National Human Rights Commission in 1994, gave directions to Tamil Nadu Government to provide medical help to Sri Lankan refugees. In 1995, it filed a PIL on Arunachal Pradesh Government regarding the government not supporting Chakmas, and got the decision of the court ordering the government to provide necessary help to the group. It gets involved in all the refugee issues in India and provides some or the other help required.

5.4. Need for Domestic Law

            India doesn’t have any separate law for the refugees, but it desperately needs one considering the recent issues and many more issues that may come in the future. Until a law is made, India continues to hold refugees depending on the country of them and political considerations. Though NHRC has submitted many reports about the need for India to have a Law based on Refugees but no response to them. A law is required so that all refugees will be handled equally and correct provisions are made for them during the crisis. The law should also include the provisions for internally displaced people as well. All existing acts that make the refugees suffer more must be replaced with this new law, the law will make the procedure for granting a refugee status easier. It will also help end the discrimination against refugees in India, and help the Refugees in all ways possible for their development.[32]

6.1 Interplay of Human Rights Law, Refugee Law, Humanitarian Law

Both Refugee Law and Human Rights law often co-exist and overlap each other in several fields. International Humanitarian Law and Human Rights law being the distinct branches of law overlap as well, as one deals with the protection or a person from abusive power and the other one deals with the conduct of parties to an armed conflict. In the case of protection of the person in the power of a party to the conflict both Humanitarian Law and Human Rights Law reinforce each other mutually.[33] Humanitarian Law deals with the conflicts and while Refugee Law deals with the people that flee due to the conflicts. They both go hand in hand due to that.[34] Coming to the Interplay of Human Rights Law and Refugee Law, both of them describe the Principle of Non-Refoulment which prohibit forceful repatriation. On the whole none of the Laws work independently but go hand in hand with each other. Some of the principles or ideas are borrowed or adopted from each other as well.

7.1 International Laws and Conventions on Refugees

There are any declarations, conventions, regarding refugees. Some of them are Convention relating to the Status of Refugees (1951) and Protocol (1949), Convention relating to the status of Stateless Persons (1954), UN Declaration on Territorial Asylum (1948), Universal Declaration of Human Rights (1948), Convention on the Elimination of Discrimination against Women (1979), International Convention on Civil and Political Rights, Convention on the Reduction of Statelessness (1961), Guiding Principles on Internal Displacement (1998). Some of the Regional Refugee Laws are Cartagena Declaration (1984), Asian African Legal Consultative Committee Principles (1996).

The UN Convention Relating to the Status of Refugee of 1951 was adopted on 28 July 1951 and entered into force on 22 April 1954. It erases previous laws and set a most comprehensive codification of the rights of refugees. The Convention deals with General Provisions, Juridical Status, Gainful Employment, Welfare, Administrative measures, Executory and Transitory powers. These chapters are very well defined and the serve the purpose of helping refugees. Article 1 gives the definition to the term ‘refugee’, Article 12, 13 dealwith Personal status and Movable and Immovable property respectfully. Article 16 deals with Access to Courts. As the 1951 Convention covers only those persons who have become refugees as a result of events occurring before 1951, Protocol relating to the Status of Refugees was entered into force on 4 October 1967, because new refugee situations have arisen after the convention and the new refugee did not fall under the Convention. So, to ensure equality of all refugees, this protocol covered that.[35]

CONCLUSION

In the whole world, though there are a number of conventions and laws governing refugees, the refugees still keep facing problems. When a country as big as India doesn’t have a Refugee Law, we can understand that many countries have the same face and are on the same boat. If UNHCR and NHRC work together, there will be much more development in the field of Refugee Law. There is definitely a need for India to set up a Law regarding Refugees, as in the future there may be many more issues due to various reasons. Whenever UNHCR tries to do something regarding refugees NGO’s should actively help them. Though protection to refugees is given under various articles of the Constitution, there needs to be a uniform Law that give equal rights to all the refugees. India continues to take the humanitarian view of the problem of the refugees. Considering the security issues due to which India is not a signatory to the 1951 Convention, it should give due consideration to the same. It should also take care that the refugee law is not mistreated and mis-utilized by persons who come to seek opportunities. Many judgements in India support the refugees. India has done a very good work regarding refugees, but needs to do much more. Many Rohingya refugees living in India are receiving support, but India is planning to deport them to their territory. In the past NHRC submitted a report for the ned for a Refuge law but didn’t receive a reply. If UNHCR and NHRC together do the same, there may be an answer. The Refugee Convention and its Protocol of 1951 and 1967 are the Conventions that received global response with many countries signing the convention. They consider most of the reasons of refugees and tell us the rights and other provisions that they should be given. India on the whole, needs a refugee law for governing refugees entering India.

SELECT BIBLIOGRAPHY

Books:

1. Dhavan, Rajeev: Refugee law and policy in India, PILSARC, New Delhi, 2004.
2. Ranabir, Samaddar, Refugees and the State. Practices of Asylum and care in India 1947-2000, SAGE publications, 2003.
3. Refugee protection and plan of action, Indian Institute of Human Rights, New Delhi, 2001.
4. Sinha, Manoj Kumar: Handbook of Legal Instruments on International Human Rights and Refugee Laws., Edition 2014.

Articles:

1. Christina Harrison, “UNHCR and the Protection of Refugees in India”, unhcr.org/en
2. Droege, C, “The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict”, Israel Law Review, 2007.
3. Giselle Toledo, “The protection of refugees and their right to seek asylum in the European Union”, InstitutEuropéen De L’Université de Genéve, Vol. 70.
4. Hofman, Lennart, “Meet the most persecuted people in the world”, The Correspondent, 2016.
5. Fitzpatrick, “Revitalising the 1951 Refugee Convention”, Harvard Human Rights Journal, Vol. 9.
6. N. Saxena, “Legal Status of Refugees: Indian Position”, Indian Journal of Int. Law, Vol. 26.
7. Patricia Hyndman, “Developing International Refugee Law in the Asian Pacific Region: Some Issues and Prognoses”, Asian Year Book of International Law, Vol. I

List of Cases:

1. Dongh Lian Khan v. Union of India, 2015 SCC Online Del 14338.
2. Louis De Raedt v. Union of India, 1991 (3) SCC 554.
3. Visakha v. State of Rajasthan, 1997 (6) SCC 241.
4. NHRC v. Arunachal Pradesh, 1996 (1) SCC 742.
5. Digbijay Mote v. Union of India, 1993 (4) SCC 175.
6. Malvika Karelkar v. Union of India, Writ Petition (Crim) No.583 of 1992

END NOTES 

[1] Art. 1(A)(2) of Refugee Convention, 1951.

[2] Patricia Hyndman, “Developing International Refugee Law in the Asian Pacific Region: Some Issues and Prognoses”, Asian Year Book of International Law, Vol. I.

[3] J. Fitzpatrick, “Revitalising the 1951 Refugee Convention”, Harvard Human Rights Journal, Vol. 9.

[4] Which Countries host the most refugees? , www.unhcr.org/news/videos/2017/2/58b3f4714/which-countries-host-the-most-refugeesquest.html

[5] Giselle Toledo, “The protection of refugees and their right to seek asylum in the European Union”, InstitutEuropéen De L’Université de Genéve, Vol. 70.

[6] UNHCR, 2009 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons, Division of Programme Support and Management, 2010.

[7] Statute of the United Nations High Commissioner for Refugee [UNHCR Statue], adopted by the UN general assembly.

[8] Erik-Jan-Zürcher, “Greek and Turkish refugees and deportees 1912–1924”, Universiteit Leiden, 2003.

[9] Peter Gatrell,” Refugees and Forced Migrants during the First World War”, Immigrants & Minorities, 2008.

[10] European Refugees: 1939-1952 by Malcolm J Proudfoot (Faber, 1957)

[11] Prof. J.N. Saxena, “Legal Status of Refugees: Indian Position”, Indian Journal of Int. Law, Vol. 26.

[12] Asylum Act, Germany.

[13] Ivar Ekman, “Far from War, A Town with a Well-Used Welcome Mat”, The New York Times, 2000.

[14] European Migration Network, EMN Annual Report on Immigration and Asylum 2014: A synthesis of Annual Policy reports 2014, Submitted by EU member stated and Norway, June 2015.

[15]Hofman, Lennart, “Meet the most persecuted people in the world”, The Correspondent, 2016.

[16]McPherson, Poppy, “6,700 Rohingya Muslims killed in one month in Myanmar, MSF says”, The Guardian. ISSN 0261-3077, 2017

[17] Dongh Lian Khan v. Union of India, 2015 SCC Online Del 14338.

[18] NHRC v. Arunachal Pradesh, 1996 SCC (1) 742.

[19]RanabirSamaddar, “Refugees and the State, Practices of Asylum and Care in India 1947-2000”, SAGE Publications, U,2003, “Status of Refugees in India”

[20] Art. 21, The Indian Constitution.

[21] “Centre / State Acts and Rules on “Refugees””, http://nhrc.nic.in/documents/LibDoc/Refugees_A.pdf

[22] Louis De Raedt v. Union of India, 1991 (3) SCC 554.

[23] Visakha v. State of Rajasthan, 1997 (6) SCC 241.

[24] NHRC v. Arunachal Pradesh, 1996 (1) SCC 742.

[25] “Centre / State Acts and Rules on “Refugees””, http://nhrc.nic.in/documents/LibDoc/Refugees_A.pdf

[26] Foreigners Act, 1946.

[27] Art. 33, Refugee Convention, 1951.

[28] Digbijay Mote v. Union of India, 1993 (4) SCC 175.

[29] Digbijay Mote v. Union of India, Criminal Writ Petition No. 60 of 1997; Crl. W. 60/97

[30] Malvika Karelkar v. Union of India, Writ Petition (Crim) No.583 of 1992.

[31] Christina Harrison, “UNHCR and the Protection of Refugees in India”, www.unhcr.org/en

[32] V. Vijay Kumar, “The Need for a National Legislation on Refugees.” in roundtable workshop on refugees in the SAARC region: National legislation on refugees, 30 April 1999, New Delhi.

[33]Droege, C, “The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict”, Israel Law Review, 2007.

[34] Part IV, Geneva Convention, 1949.

[35] Sinha, Manoj Kumar: “Handbook of Legal Instruments on International Human Rights and Refugee Laws.”, Edition 2014.

Author : Aakash Sai, student, symbiosis law school, Hyderabad.

The post Human Rights of Refugees and Refugee Laws in India and Globally appeared first on Legal Desire Media and Insights.

The desire for a decent livelihood and better standards of living has always encouraged people to move from one place to another in search for better jobs The right to work and livelihood are one of the most significant human rights and has been a part of the Universal Declaration of Human Rights and other international human rights instruments notably International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.  Therefore the migration of people for work has been a regular phenomenon since ages.  This paper focuses on the migration of workers within one India i.e. State to State and region to region andthe major issues faced by them.

The intra country migration in characterized by lack of alternate livelihoods and skill development in source areas[1]. The large gap between urban and rural areas in terms of development, infrastructure and standard of living is the major reason for this. The economic disparity between different states has also resulted in people migrating from one state to another. However, the migrant workers in India are one of the worst victims of human rights violations.

Migration of Labour in India

The Economic Survey 2017 shows the fact that the Indians are very prone to migration. Though there are various types of migration such as rural to rural, rural to urban, urban to rural and urban to urban, the concept of rural to urban and migration from a poor state to a rich state are very prevalent. The reasons include poverty, a seasonal agriculture economy and underdevelopment in their own place of origin.

According to the 2011 census, there is about a 453.6 million migrants in India. These migrant workers are mainly engaged in domestic work, construction work, agricultural labour and taxi driving. This migration on one hand is crucial to skill development, access to health care etc. On the other hand, the migration is risky as the migrant workers are often the victims of the various social, economic, cultural and political oppressions. [2]

Migrant Worker: Definition

A “migrant worker” is a person who either migrates within their home country or outside it to pursue work such as seasonal work. Migrant workers usually do not have an intention to stay permanently in the country or region in which they work.

The United Nations defines “migrant worker” as a person who is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.[3] The definition given by UN clearly covers only international migration and the related issues.  According to section 2(1) (e) of Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, “inter-State migrant workman” means any person who is recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State, whether with or without the knowledge of the principal employer in relation to such establishment. According to section 2(n) of the “Unorganized Workers Social Security Act, 2008, “Wage worker” means a person employed for remuneration in the unorganized sector, directly by an employer or through any contractor, irrespective of place of work, whether exclusively for one employer or for one or more employers, whether in cash or in kind, whether as a home based worker, or as a temporary or casual worker, or as a migrant worker, or workers employed by households including domestic workers, with a monthly wage of an amount as may be notified by the Central Government or State Government, as the case may be. The definition given by the above two legislations categorize migrant workers into organized and unorganized workers.  While the inter- State Migrant Workmen Act, 1979 covers only contractual workers, the  Unorganized Workers Social Security Act, 2008 talks about the unorganized workers.

Human Rights Violations faced by Migrant Workers in India

The migrant workers lacks basic living amenities such as proper housing, clean drinking water, sanitation facilities. Various studies on the migrant workers show that they either live in slums, tents or at times in make shifts huts. The migrant workers who do construction work lives in the make shifts tents near the construction sites.  Those work as domestic maids live in slums where the living conditions are unsafe and in adequate. The temporary settlements of the migrant workers are often in the unauthorized land and there is a threat of evacuation also. As the housing and sanitation conditions are very poor, they are susceptible to various diseases.

The labour welfare provisions such as minimum wage and weekly holidays are not available to the migrant workers. As many of the migrant workers are in unorganized sector, these welfare provisions are not applicable to them. The available benefits do not reach to them because of nepotism, corruption and ignorance of the migrant workers.

The working conditions of the migrant workers are also often worse. They work in unsafe environment and are prone to various work related accidents. This is especially prevalent in the construction works and factories. There is an obvious lack of occupational health and safety measures for them. The workers do not have provisions of compensation and insurance overs. Another problem faced by the migrant workers is that they are often trapped in bonded labour and debts. The workers are often uneducated and illiterate and are financially exploited.

It has also been found that the women migrant workers especially women are often sexually exploited. They are vulnerable to rape, sexual harassment, child trafficking, prostitution and women trafficking. They do not have access to justice such as courts, police stations because of their economic and social vulnerability. In many places, the police falsely implicate the migrant workers.

The migrant workers face from various legal problems. They often do not have identity cards and documents.  Due to lack of proper documents, they are not part of census data and are missed out in BPL surveys. They are unable to be a part of electoral system is denied the right to vote. They cannot avail the benefits of nationalized banks including savings, investment and loans. The children of migrant workers do not have access to education because of the lack of identity cards.

Laws on Migrant Workers

The Constitution of India provides every citizen various fundamental rights and provides for various directive principles. These constitutional provisions are applicable to the migrant workers as well. They are as follows.

• Article 16. Equality of opportunity in matters of public employment

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State

• Article 21. Protection of life and personal liberty – No person shall be deprived of his lifeor personal liberty except according to procedure established by law.
• Article 21 A. Right to education – The State shall provide free and compulsory educationto all children of the age of six to fourteen years in such manner as the State may, by law,determine.
• Article 23. Prohibition of traffic in human beings and forced labour

(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law

• Article 38. State to secure a social order for the promotion of welfare of the people – (1)The State shall strive to promote the welfare of the people by securing and protecting aseffectively as it may a social order in which justice, social, economic and political; shallinform all the institutions of the national life.

(2) The State shall, in particular, strive to minimize the inequalities in income, andendeavour to eliminate inequalities in status, facilities and opportunities, not onlyamongst individuals but also groups of people residing in different areas or engaged indifferent vocations.

• Article 39. Certain principles of policy to be followed by the State – The State shall, inparticular, direct its policy towards securing a that the citizens, men and women equally, have –

1. the right to an adequate means oflivelihood;
2. that ownership and control of the material resources of the community are sodistributed as best to sub-serve the common good;
3. that the operation of the economic system does not result in the concentration of wealthand means of production to the common detriment;
4. that there is equal pay for equal work for both men and women;
5. that the health and strength of workers, men and women, and the tender age of childrenare not abused and that citizens are not forced by economic necessity to enter a vocationsunsuited to their age or strength;
6. that children are given opportunities and facilities to develop in a healthy manner andin conditions of freedom and dignity and that childhood and youth are protected againstexploitation and against moral and material abandonment.

• Article 41. Right to work, to education and to public assistance in certain cases- The Stateshall, within the limits of its economic capacity and development, make effectiveprovision for securing the right to work, to education and to public assistance in cases ofunemployment, old age, sickness and disablement, and in other cases of undeserved want.
• Article 43. Living wage, etc., for workers – The State shall endeavour to secure, bysuitable legislation or economic organization or in any other way, to all workers,agricultural industrial or otherwise, work, a living wage, conditions of work ensuring adecent standard of life and full enjoyment of leisure and social and cultural opportunitiesand, in particular, the State shall endeavour to promote cottage industries on an individualor co- operative basis in rural areas.

Unorganized Workers Social Security Act, 2008

In 2008, the Central Government enacted the Unorganized Workers Social Security Act, 2008. This is an important legislation as it covers the unorganized workers particularly migrant workers who are neglected in all labour law provisions. Section 3 of the Act directs the Central Government and State Governments to make and implement social security schemes to the unorganized sector migrant workers.. This includes life and disability cover, health and maternity benefits, old age pension etc., education schemes for children etc. The Schedule 1 of the Act lists various schemes for the unorganized workers such as Indira Gandhi National Old Age Pension Scheme (IGNOAPS), Janani Suraksha Yojana (JSY), Janashree Bima Yojana (JBY): (scheme),Aam Admi Bima Yojana (AABY): (scheme), Rashtriya Swasthya Bima Yojana (RSBY): (Scheme),National Scheme for Welfare of Fishermen and Training and Extension: (scheme),Handloom Weavers’ Comprehensive Welfare Scheme.[4]

The Unorganized workers Social Security Act which however has hardly been implemented anywhere in India even after a decade of it coming into force. The reason behind this is the lack of interest of the Government. The migrant workers also have very less awareness about the legal provisions available to them.

Domestic maids in East Delhi ( A case study on migrant workers)

The city of Delhi has always been a settlement for migrants from the historic times.  The conquests, the partition and the advantages of it being the capital and a metropolitan city are the various reasons for it. The district of east Delhi has various slums and migrant colonies where the migrant workers from the north India and East India are residing.  The men among them work in various factories in Noida, or in meagre jobs in the upper/middle class resident colonies of East Delhi. The women predominantly work as domestic maids in the in the upper/middle class resident colonies of East Delhi.

The domestic maids of east Delhi live in poverty as the earnings that they get are very meager. They are mostly illiterate. The rented rooms of the chawls  or the slums where they live are very congested and over populated. The land owners often ask for exorbitant rents, water bills and electricity bills and exploit them. The women are often the victims of domestic violence and sexual violence.The jobs of these maids are not regulated by any of the labour laws. The main reason behind this is the lack of proper laws for them and its implementation. Many of them do not avail any social security benefits and do not receive minimum wages.  They do not have weekly holidays and proper leisure hours.Some of the maids do not have proper identity documents, ration cards and BPL cards. Due to this, their cost of living is also very high. The children of these maids do not get proper education as they also start working at a very tender age. The children also work as domestic maids, child care takers in houses. Sometimes, the girls get married at a very early age and suffer from various miseries.

On the other hand, these women do not want to return to their villages due to the seasonal character of the agriculture and lack of development in their villages.The case study on these domestic maids clearly shows the gloomy picture of conditions of migrant workers in India. The existing schemes and laws are not accessible to them.

Conclusion and Suggestions

The migration of labour is very important for the economic growth and development of the country. Despite contributing for the economic growth substantially, the migrant workers are the victims of economic, social, cultural and political exploitation. The situation is worsened by the fact that they do not get any benefits from their place of origin and the place of migration. The migrant workers largely belonging to the unorganized sector are disadvantaged by lack of adequate labour benefits also. The constitutional ideal of economic justice is only achieved by providing them basic facilities and bringing them to the mainstream.

Following are the suggestions for the welfare of the migrant workers in India.

• Adequate Laws for the welfare of migrant workers.
• Governments to implement more schemes for the migrant workers.
• Provisions of identity cards for the migrant workers.
• Access to Education for the Children of migrant workers.
• Access to justice systems in case of violations on them.
• Civil Society Organizations to take initiatives.

END NOTES

[1] http://in.one.un.org/page/decent-work-for-migrant-workers-in-india/

[2] http://in.one.un.org/page/decent-work-for-migrant-workers-in-india/

[3] United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, United Nations. Retrieved 30 November 2006

[4] https://blog.ipleaders.in/laws-related-to-migrant-labourers-in-india

Author : Sreedurga T.N, Assistant Professor (law), Amity Law School, Noida, Amity University, Noida (UP); sreedurgatn@yahoo.co.in;

The post The Human Rights of Migrant workers: Existing Laws and Need for Reforms appeared first on Legal Desire Media and Insights.

Now lets take a simpler problem, imagine you live in a town and you have two candidates and both are known to be corrupt and power-hungry the problem is even though you choose not to vote someone will and even  single vote in favor of one candidate puts him in the parliament or even worse imagine a city dominated by the poor class , people who have day jobs and can hardly make ends meet lets say his population of poor people constitute 70% of the population and this population is dominated by one caste , take any caste. and now there are two candidates the one who is corrupted and a known criminal and other who is comparatively better but in the election the first one wins , why ? politics of caste and religion. over the period of time politicians have convinced people that somehow their caste will make them a better politician. So they are not really peoples representatives they are just deceivers and now they are going to be responsible for making the laws. Personally i find it very worrying as to continue to stay in power they will make laws favoring their caste and this will lead to an unjust law making process. the famous MANDAL COMMISSION is a classical example of this.

So again are the laws even yours ? or they are by the people who want temples the people who fund their campaigns and people who makes laws not for the progress of the county but for satisfying their own greed of power.

Would you trust a prisoner or a criminal or an accused with the safety of your family? no, now goggle how many cases  are there against members of the legislative assembly. Forget the family we are letting the nation to be run and administered by the and don’t you worry take a look at the person who was running the election to be the most powerful women on earth Hillary Clinton who has been involved in more than 15 scandals and scams but never ever she has been prosecuted. The stories are plenty but the issue remains the same. Can this all happen under the blanket of democracy and nobody can do anything ?
is it dictatorship in a nice suit of democracy after all ?
I guess the least we can do is think about is and talk about it , but wait  ,can we ? we all know that somewhere in the constitution there is a fundamental right that gives us the freedom of speech and also gives the state the right to excursus reasonable restriction. now this reasonable restriction is often misused i wont bore you with a thousand case laws , my point here is simple a state that is suppose to be ru by people should logically give us the right to point out the mistakes in the government. the term is known as the whistleblower. now why don’t we hear more about them , its so obvious that a lot of people will raise their voices and here is why two things 1- they are removed / murdered / threatened. 2- it sends the message that nobody can actually go against the sate and if they  did ? number 1 will follow.

EVIDENCE –

1- Seth Conrad Rich – A Democratic National Committee (DNC) official who worked on exposing recent election fraud during the Democratic primaries was found murdered on the second week of july 2016.

2-Shanmugam Manjunath (1978–2005) was a marketing manager (grade A officer) for the Indian Oil Corporation (IOC) who was murdered for sealing a corrupt petrol station in Lakhimpur Kheri, UP. This incident inspired several students at IIM, IIT and other institutes culminating with the IIM students setting up the “The Manjunath Shanmugam Trust”.

3-Lalit Mehta (1972–2008) was an Indian RTI activist, who was killed brutally near Palamau on May 14, 2008. Lalit Mehta (1972–2008) was an Indian RTI activist, who was killed brutally near Palamau on May 14, 2008.

And honestly the list will o on and o and some of them like the famous Subramaniam Swamy are kind of successful but this success rate is nothing compared to the ones who are silenced or killed just because they were brave enough to go against the system and change it.

Thank you with love ,

DEMOCRACY.

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