In this chaotic situation, the Supreme Court of India has proved to be the true guardian of justice in the country. The Supreme Court not only successfully adopted the online mode by enhancing the e-courts program but also ensured that justice is delivered on the important matters of the country.

This article aims at summarizing the top 10 landmark judgments delivered by the Supreme Court of India in 2020.

1.     The Secretary, Ministry of Defence v. Babita Puniya & Ors.

Citation: MANU/SC/0194/2020

The Supreme Court marked 17 February, 2020 as an important date in the calendar of Indian Armed Forces. For the first time since independence, the females belonging to the Indian Armed Forces will be granted permanent commission to serve in the army. The females had been struggling to attain this right for more than a decade. Justice DY Chandrachud, while delivering the judgment, stated that: ‘At the stage of opting for the grant of PC, all the choices for specialization shall be available to women officers on the same terms as for the male SSC officers. Women SSC officers shall be entitled to exercise their options for being considered for the grant of PCs on the same terms as their male counterparts’.

The judgment upheld the directive principle of equality by providing access to permanent commission to the female populace.

2.     Anuradha Bhasin v. Union of India

Citation: MANU/SC/0022/2020

Another important judgment that upheld the rights of the citizens declares right to internet as a part and parcel of the right to freedom of speech and expression, a fundamental right granted to the citizens of India under Article 19 (1)(a) of the Constitution. The hon’ble court thus concluded that the ban on the internet services in the state of Jammu and Kashmir is unreasonable and violative of the above-mentioned article. Justice NV Ramana ordered the relevant authorities to ‘review forthwith the need for continuance of any existing orders passed under Section 144, Cr.P.C in accordance with law laid down above’. The court believed that suspending telecom services (be it internet or any other services of this kind) is a drastic measure and that passing an order that suspends the internet indefinitely is highly impermissible under the Temporary Suspension of Telecom Services) Rules of 2017.

3.     Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr.

Citation: (2020) 5 SCC 1

This case posed a typical question in front of the judiciary about whether anticipatory bail granted under section 438 of Criminal Procedure Code should be limited to a fixed period of time or not and that whether such anticipatory bail is trimmed when the court summons the accused. The 5-judge bench unanimously agreed that anticipatory bail shall not be limited to a fixed period of time and in certain peculiar cases, can be extended till the end of the trial upon the order of the hon’ble court. Two separate judgments were pronounced by J. Shah and J. Bhat; however, both the judgments were synchronous with each other and were agreed upon by J. Mishra, J. Banerjee and J. Saran.

The court further overruled the following judgments: Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors[1], Salauddin Abdulsamad Shaikh v. State of Maharashtra[2] and other subsequent decisions.

4.     Mukesh Kumar & Anr. v. The State of Uttarakhand & Ors.

Citation: MANU/SC/0139/2020

Another landmark judgment booked for the year; it states that a state is not bound to make reservations to SCs and STs guaranteeing promotions in government jobs. The court further stated that it is not a fundamental right guaranteed by the Constitution thereby barring the courts from issuing a mandamus for the same. The hon’ble bench believed that collection of quantifiable data reflecting the representation of SCs and STs is not, mandatory for states if they seek to abstain from providing such reservations. Article 16(4) of the Constitution grants such discretionary power to the states.

The bench thus stated that: ‘As such, collection of data regarding the inadequate representation of members of the Scheduled Castes and Schedules Tribes, is a pre-requisite for providing reservations, and is not required when the State Government decided not to provide reservations. Not being bound to provide reservations in promotions, the State is not required to justify its decision on the basis of quantifiable data, showing that there is adequate representation of members of the Scheduled Castes and Schedules Tribes in State services’.

5.     Prathvi Raj Chouhan v. Union of India

Citation: MANU/SC/0157/2020

The court in this judgment tactfully upheld the constitutionality of the SC/ST (Prevention of Atrocities) Amendment Act, 2018. This amendment was brought forth to reverse the SC judgment of March 2018[3] that introduced safeguards that prevented the misuse of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 also known as the PoA Act. However, this decision gave rise to massive protests among the SC, ST community, as a result of which the Parliamentary amendment was introduced.

The court thus settled its views in consonance with the Parliamentary amendment that aimed at nullifying the effects of the Kashinath Mahajan judgment of the SC which had diluted the provisions of the Act. Hon’ble judges held that the ‘Kashinath Mahajan directions placed an undue burden on SC/STs persons who had suffered a caste-based atrocity’. Whereas, J. Bhat delivered a concurring opinion warning that ‘a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament’.

6.     Rambabu Singh Thakur v. Sunil Arora & Ors.

Citation: MANU/SC/0172/2020

The court in the given case mandated political parties to follow certain directions laid down by the Supreme Court to ensure that criminalization of politics doesn’t take place. These directions include: 

1.  mandatorily updating their websites with the details of candidates that have pending criminal cases
2. grounds for the selection of such candidates (on the basis of merit and qualifications rather than ‘their ability to gather votes’)
3. such information to be published in a local vernacular newspaper as well as a national newspaper
4. the time limit for such publication to be within 48 hours of selection of the candidate
5. submission of a report of compliance of these directions to the Election Commission (EC) within 72 hours
6. failure in following these guidelines must enable the EC to bring a non-compliance notice against the party to the Supreme Court of India.

This judgment can be viewed as a major step towards curbing the alarming rise in criminalization of politics within the country.

7.     Arnab Ranjan Goswami v. Union of India & Ors.

Citation: MANU/SC/0448/2020

The petitioner (Arnab Goswami) alleged that a vindictive and malicious campaign was launched against him through social media by the states which owed their allegiance to the Indian National Congress. Multiple FIRs were lodged against the petitioner alleging that he was responsible for propagating views of communal nature. The Supreme Court defended the rights of a journalist by disallowing multiple complaints against him stating that it would hinder his freedom thereby quashing all identical FIRs except for the one lodged in Maharashtra.

However, the Supreme Court took a step back by refusing to interfere with the case by disallowing the plea to seek transfer to CBI probe by stating that, ‘Nothing contained in the present judgment shall be construed as an expression of opinion on the merits of the allegations contained in the FIRs’ and that ‘the transfer of an investigation to the CBI is not a matter of routine. The precedents of this Court emphasise that this is an extraordinary power to be used sparingly and in exceptional circumstances’. The court also stated that the accused has no right to determine the mode of investigation.

8.     Indore Development Authority v. Manoharlal & Ors.

Citation: MANU/SC/0300/2020

After extensive debate, the hon’ble bench concluded that Land Acquisition Act, 1894 will not lapse in a case where compensation has been deposited in the treasury. A 5-judge bench led by J. Arun Mishra provided clarifications for the ambiguities about the lapse of acquisition proceedings. It was held that the landowners cannot insist the deposition of amount in court in order to sustain the proceedings under the old act. Therefore, even if the state fails in depositing the compensation in a landowner’s account, it cannot account for a valid reason to lapse the proceedings going on under Section 24(2) of the Act of 2013. The court re-affirmed the views of 2018 Indore Development Authority Case and over-ruled the judgment of Pune Municipality Corporation case of 2014.

9.     Internet and Mobile Association of India v. Reserve Bank of India

Citation: MANU/SC/0264/2020

Famously known as the cryptocurrency judgment, it is known for the Supreme Court’s decision to lift the restrictions imposed by the Reserve Bank of India on regulated entities dealing with virtual currencies.

The court validated the ‘ground of proportionality’ by setting aside the circular issued by RBI preventing regulated entities from providing banking services to those engaged in the trading or facilitating the trading in Virtual Currencies. The court observed that, ‘when the consistent stand of RBI is that they have not banned VCs and when the Government of India is unable to take a call despite several committees coming up with several proposals including two draft bills, both of which advocated exactly opposite positions, it is not possible for us to hold that the impugned measure is proportionate’.

The court also believed that the ‘lukewarm’ response of RBI in this regard was totally unjustified.

10.  Union of India & Ors. v. G.S. Chatha Rice Mills & Ors.

Citation: MANU/SC/0714/2020

The given case holds vital significance in the presidential history of judgments. The case has been divided into 14 parts and contains a highly detailed judgment that analysis every minute detail. It revolves around a notification issued by the Union Government under Section 8A of the Customs Tariff Act 1975 that introduced a tariff entry by which all goods originating in or exported from the Islamic Republic of Pakistan were subjected to an enhanced customs duty of 200% in the aftermath of the Pulwama attack. The issue at hand was whether a notification issued by the Union Government (upon which the legislative power was delegated) can issue a retrospective order or not.

The court held that rate of duty which was applicable was crystallized at the time and on the date of the presentation of the bills of entry in terms of the provisions of Section 15 read with Regulation 4(2) of Regulations of 2018. Therefore, it cannot be altered at a later stage. The court examined section 15 (1)(a) which clarifies that ‘once the goods are entered for home consumption under section 46, the rate of duty is supposed to be the rate of duty in force on the date on which the Bill of Entry in respect of such goods is presented’.

Hence, in the scheme of the Customs Act, the Tariff Act and the 2018 Regulations, the time at which the notification under Section 8A is published would indeed have relevance.

11.  Paramvir Singh Saini v. Baljit Singh

Citation: MANU/SC/0908/2020

A very unique and Avant Garde judgment mandated installation of CCTV cameras in all police stations as well as other investigating agencies like NIA, CBI, NCB, etc. The hon’ble court ordered that in any circumstance that reflect human rights violations, the victim has a right to obtain a copy of CCTV footage of the interrogation and can approach the National/State Human Rights Commission for the same. The installation of CCTV has been mandated in any office that has the power to arrest and interrogate an individual.

The post 10 Landmark Judgments by Supreme Court in 2020 appeared first on Legal Desire Media and Insights.

EXPLAINING THE CONCEPT OF MENTAL ILLNESS

Mental illness, as defined by the Persons with Disabilities Act, 1995 (PWD Act), is any mental disorder other than mental retardation. The Constitution of India disqualifies any such person, who is declared of unsound mind by a competent court, from registering in an electoral roll. However, a distinct definition of ‘unsoundness of mind’ hasn’t been illustrated which leads to ambiguity as to who all are covered under this definition.

Mental illness should not be confused with unsoundness of mind. A mentally ill person may be of unsound mind at particular intervals, after which, he is capable of regaining his sanity. An apt example of this situation is mentioned under the contract law where if a mentally ill person enters into a contract during the lucid interval where he regains his sanity, then the contract amounts to a valid contract. Such persons, as psychiatrists argue, should be allowed to vote during this lucid interval.

Mr. R K Solanki, head of department of psychiatry at SMS Medical College, stated that ‘if the mentally ill people are able to think of the consequences of their decisions, then such people should be allowed to vote’.

Dr Sanjay Jain, superintendent of psychiatric centre, Jaipur also stated that like any other disease, mentally ill people who are still on medication tend to behave normally and that such people should be provided with voting rights. 

THE PROS OF PROVIDING VOTING RIGHTS TO THE MENTALLY ILL PEOPLE

India is by far one of the best democracies in the whole world. Voting rights provide strength to the principles of civil rights, equality, freedom of speech, and inclusivity that are responsible for reinforcing the true concept of democracy. Depriving people with mental illness, their right to vote, by structurally discriminating against such group can be tantamount to the failure of democracy as a whole.  

During the 1965 elections of the New York City mayor, researches conducted a mock voting process for around 325 patients in a psychiatric hospital in order to draw a conclusion about whether the result of this mock voting will match with the results of elections or not. Surprisingly, the results of the mental hospital for the two main candidates resembled with the results of the nearby district.

This study was used to conclude that people with mental illness are also capable of making an informed choice.

Apart from this, India works on the model of representative democracy where the people elect their representatives that take decisions for them on a larger platform. If we exclude the mentally ill people by disallowing them to vote, it is very likely that the concerns of this group of people will remain unheard of, and it will eventually lead to ignorance of such people on the representative front of the country.

On the other hand, if persons with mental illness were allowed to vote, the politicians will tend to address their concerns like lack of community-based services and disavowal of job opportunities and will provide for viable solutions of these issues.

Voting can be termed as a political act of free expression, which is to be performed independently and in secrecy. Therefore, over-reliance on the ‘companionship model’ can also lead to the infringement of this right.

India ratified the UN Convention on the Rights of Persons with Disabilities (CRPD) in 2007, in order to protect and promote the rights of Persons with Disabilities. Since then, two new legislations were formulat4ed in India namely, the Rights of Persons with Disabilities Act, 2016 and Mental Health Care Act, 2017. Later in 2018, the Election Commission of India (ECI) conducted a two-day National Consultation on Accessible Election in Delhi in order to make elections accessible for Persons with Disability (PwDs) in India. However, an RTI query revealed that no action has been taken upon any of the recommendations specific to persons with intellectual and psycho-social disabilities across the country.

APPREHENSIONS ABOUT ALLOWING VOTING RIGHTS TO THE MENTALLY ILL PEOPLE

While it is extremely necessary to provide voting rights to the mentally ill people, it must no be overlooked that such people often depend on others for sustenance. There is another fear in this regard due to the ease of manipulation that follows people with mental disabilities. Manipulation can lead to unfair voting processes which can crumple down the structure of democracy. Hence, the threat of voter fraud is the primary reason behind keeping certain groups of people away from the polls.

Also, if a companion accompanies them during the voting process, then there is a high chance that the decision might get influenced which would again amount to an unfair voting practice as the basic requirement of voting is that it should be independent.

Another major concern is that the country lacks a clear definition of mental illness or mental incapacitation or unsoundness of mind. This leads to ambiguity and confusion about which group of people can or cannot be categorised under these headings.

It is difficult to quantify mental illness in percentages which again makes it difficult to segregate the group of mentally ill people who can be made eligible to vote.

Therefore, many people fear that providing voting rights to this section of the society can lead to failure of the democratic process of free and fair voting.

CONCLUSION

Therefore, the country must devise a plan that acts as a middle road by providing voting rights to the mentally ill people without affecting the ‘fairness’ of the voting process. A method should be formulated in order to determine which set of people belonging to this category can be deemed fit to vote and special arrangements should be made for such people to prevent voter fraud.

As the primary aim is to ensure that the principle of democracy is sustained, it should be kept in mind that denying the right to vote to this section will harshly affect the democratic process but at the same time, misuse of the right to vote through this section will also have adverse consequences. Hence, striking a balance between the two is of utmost necessity.

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COURT NAME: Supreme Court of India

DATE OF JUDGMENT: January 2, 2017

CITATION: (2017) 3 SCC 1

BENCH NAME: Hon’ble J. D.Y. Chandrachud, J. Sharad Bobde, J. A.K. Goel, J. U.U. Lalit, J. Nageswara Rao, J. Madan B. Lokur, J. Tirath Singh Thakur

SUMMARY OF FACTS

The present case was decided by a seven-judge constitutional bench in the hon’ble Supreme Court of India on January 2, 2017. The cases revolved around re-promulgation of Ordinances and its constitutional validity.

In 1989, the Bihar Government passed the Bihar Non-Government Sanskrit Schools (Taking over of Management and Control) Ordinance. According to this, 429 private Sanskrit Schools were taken over by the state of Bihar. As a result of this Ordinance, the services of teachers and other employees of the school were to be transferred to the state Government. The first Ordinance was followed by a succession of Ordinances, none of which were presented before the State Legislature and no law was passed with regard to this. As soon as a previous Ordinance ceased to operate, a fresh one was issued.

As a result of these Ordinances, the teachers and other employees of these schools claimed to be Government employees and thus filed petitions before the High Court of Patna, for the payment of salary and other emoluments. The question of law before the High Court was whether the seven successive re-promulgation of this Ordinance suffer from any illegality or constitutional impropriety. The High Court of Patna dismissed the Writ Petition relying on the decision in D.C. Wadhwa and Ors. v. State of Bihar and Ors.[1], stating that the repeated re-promulgation of the Ordinances was unconstitutional.

Thus, an appeal was filed before a two-judge bench of the Supreme Court in 1998. The bench, comprising of Justice Sujata Manohar and Justice D P Wadhwa, also held that re-promulgation of Ordinances was unconstitutional. However, they differed on the validity of the first Ordinance and hence the matter was referred to a 3-judge bench. In 1999, this bench (comprising of 3 judges) further referred it to a 5-judge bench, considering that the matter raised substantial questions related to the Constitution. On 23rd November 2004, the matter was referred to a larger Bench of seven judges.

On January 2, 2017, the seven-judge Constitution Bench of the Supreme Court of India held that promulgation of Ordinances is a fraud on the Constitution and leads to subversion of democratic legislative processes. The Court also held that the satisfaction of the President of India, under Article 123 and of the Governor under Article 213 while issuing an Ordinance is not immune from judicial review.

ISSUES RAISED

1.      Whether Article 213 of the Constitution confers a mandatory obligation on the Executive to table an Ordinance before the Legislature?

2.      Whether re-promulgation of an Ordinance is permissible as per the Constitution?

3.      Whether an act through an Ordinance remains valid even after the Ordinance ceases to operate?

4.      Whether the Ordinance making power was misused by the Parliament in the given case?

5.      Whether the Ordinances passed by the Bihar Government were legally valid?

6.      Whether the petitioners were entitled to any legal right after the termination of the Ordinance?

7.      Whether the respondent could be prosecuted and punished under the Ordinance after it was repealed?

CONTENTIONS FROM BOTH THE SIDES

The main issue of contention between the parties in the given case was the Constitutional validity of the Ordinances promulgated and re-promulgated by the Executive.

·         The appellants in the given case were seeking relief on the grounds of the said Ordinances. The appellants, brought to the notice of the Hon’ble Court, their right to claim salary and other emoluments from the Government of Bihar in light of the status of ‘government employees’ conferred on them by the said Ordinances.

·         According to them, they were entitled to gain salary and other benefits from the government, from the day when the first Ordinance (Ordinance 32 of 1989) was promulgated and should continue to gain the same even after the last series of Ordinances expired due to lapse of time.

·         The main issue raised by the respondents was whether the effect and consequences of actions concluded under an Ordinance prior to its ceasing to operate by virtue of it being disapproved by the Legislative Assembly, will hold value or will cease to exist.

·         They raised the contention that if the Ordinances weren’t valid in nature, then they shall not be held liable to pay salaries to the teachers and other staff of the Sanskrit schools.

JUDGMENT OF THE CASE

The Supreme Court of India pronounced a very landmark and detailed judgment relating to the Constitutional validity of re-promulgation of Ordinances and discussed all important aspects related to the same. The Hon’ble Bench, in the ratio of 5:2 held that unfettered re-promulgation of Ordinances is unconstitutional.

The Indian Constitution, under Article 213 and Article 123, accredits the President/Governor to promulgate Ordinances; also known as authoritative orders, that enable the government to take immediate legislative action in the absence of legislative assembly. The Hon’ble Bench in this case declared that the powers conferred on the President and Governor under respective articles are not immune from judicial review. More importantly, it held that re-promulgation of Ordinances without placing these Ordinances before the legislature is a subversion of the democratic legislative process.

The majority judgement, authored by Justice D.Y. Chandrachud, on behalf of himself, and J. Bobde, J. Goel, J. Lalit and J. Nageswara Rao held that although the Constitution empowers the President/Governor to issue Ordinances, it is a conditional legislative power and can only be exercised when the Legislature is not in session.

Even though an Ordinance has the same force and effect as a law temporarily, it does not confer an independent legislative power upon the President/Governor. Further, a mandatory constitutional obligation was cast upon the government to lay the Ordinance before the Legislature by virtue of Article 213 itself.

This was done so that the legislature could decide on the following:

        i.            the need, validity, and expediency to issue the Ordinance;

      ii.            whether the Ordinance should be approved;

    iii.            whether a Statute must be enacted in furtherance of the Ordinance.

The Court also placed special emphasis on the decision given in DC Wadhwa v. State of Bihar where re-promulgation of Ordinances constituted a fraud on the Constitution. Re-promulgation is considered unconstitutional for two major reasons:

·         Such an act attempts to circumvent the Legislature, which is the primary law-making authority;

·         It defeats the purpose of Articles 123 and 213 which prescribe a limited power to issue Ordinances.

Another important observation was that any right, privilege, obligation or liability provided by the Ordinance will only survive if it fits with any of the three tests mentioned below:

a.       the effect of the Ordinance should be irreversible in nature

b.      reversing of the consequences of the Ordinance should be impractical

c.       a compelling public interest must exist in order to continue the effect of the Ordinance

The judges, in this landmark judgment highlighted a very important issue; that the Ordinance-issuing power, under Articles 123 and 213, are not immune from judicial review. Hence, the court is empowered to adjudge the issue of existence of a valid exercise of the power. Apart from this, the Ordinance making power is also subject to legislative control, under the principle of legislative supremacy and the Executive are collectively answerable to the Legislature.

In the present case, Chief Justice (as he then was) T.S Thakur rendered a separate concurring opinion, stating that it is an open question whether Articles 123 and 213 make it obligatory for the Government to place the Ordinance before the Legislature.

The dissenting opinion of Justice Madan Lokur stated that Article 213 does not make it mandatory for an Ordinance to be laid before the Legislature. According to him, since an Ordinance acquires the force of law, its validity cannot depend on the contingency of whether or not it was tabled before the Legislature.

Thus, even though the judgment held that all the Ordinances constitute a fraud on the Constitution since they were not placed before the Legislature and were re-promulgated in violation the decision in the case of D.C. Wadhwa and did not confer the status of ‘Government employee’ on the teachers, the salary that had already been given by the Government need not be recovered from the teachers.

The Hon’ble Bench focused on each minute detail and provided clarification for the same in an elaborate manner. One of the key observations was that an Ordinance which is promulgated under Article 123 or Article 213 will only have equivalent force and effect as a law enacted by the legislature when; a) it is laid before the legislature and b) will cease to operate six weeks after the legislature has resembled or, even earlier if a resolution disapproving it is passed. Moreover, they stated that an Ordinance may also be withdrawn.

Another important issue addressed is that the Ordinance making power does not enable the President or the Governor, as a parallel source of law making or an independent Legislative Authority. Emphasis was also placed on the term ‘satisfaction of the President under Article 123 and of the Governor under Article 213’.

They also held that the Constitution has used different expressions such as “repeal” (Articles 252, 254, 357, 372 and 395); “void” (Articles 13, 245, 255 and 276); “cease to have effect” (Articles 358 and 372); and “cease to operate” (Articles 123, 213 and 352). Each of these expressions has a distinct connotation. The expression “cease to operate” in Articles 123 and 213 does not mean that upon the expiry of a period of six weeks of the reassembling of the legislature or upon a resolution of disapproval being passed, the Ordinance is rendered void ab initio. Both Articles 123 and 213 contain a distinct provision setting out the circumstances in which an Ordinance shall be void.

The dissenting opinion of hon’ble Mr. Justice Madan B. Lokur can be summarised in the following manner:

·         There is no mandatory requirement that an Ordinance should be laid before the Legislative Assembly.

·         The fate of an Ordinance, whether it is laid before the Legislative Assembly or not, is entirely governed by the provisions of Article 213(2) (a) of the Constitution and by the Legislative Assembly.

·         The limited control that the Executive has over the fate of an Ordinance after it is promulgated is that of its withdrawal by the Governor of the State under Article 213(2)(b) of the Constitution – the rest of the control is with the State Legislature which is the law-making body of the State.

The theory of enduring a right, as laid in the judgment in State of Orissa v. Bhupendra Kumar Bose and followed in T. Venkata Reddy and Ors. v. State of Andhra Pradesh by the Constitution Bench is based on the analogy of a temporary enactment. These judgments aren’t considered to be of use.

The majority Judgment, authored by Justice DY Chandrachud, held that the requirement of placing the Ordinance before the Legislature is mandatory; Justice Madan B Lokur observed that it is directory; Justice Thakur, the Chief Justice of India as he was then, in his separate concurring opinion, preferred to leave the ‘question of interpretation of Articles 123 (2) and 213(2) in so far as the obligation of the Government to place the Ordinance before the Parliament/legislature.

The Supreme Court has overruled two of its earlier judgments and has ruled the following in the given case:

a.       The court will not enquire into the adequacy of material present before the President or Governor. It will investigate whether executive has committed any fraud or an abuse of power.

b.      Ordinance is distinct from temporary legislation. Ordinance is not created by legislatures. Hence, it does not automatically create rights and liabilities which go beyond its term of operation.

MY COMMENTS ON THE CASE

Legislative debates and deliberations form the foundation of our democracy. Objections from opposition and deliberations, help in making laws based on critical reasoning. Creating laws purposefully when the houses are not in session through Ordinance route altogether debases the Constitution and its finest ideals.

However, considering the emergency situations, a right to promulgate Ordinances should be provided to the Executive with strict checks and controls in order to prevent misuse.

This judgment widens the scope of judicial review of Ordinances by promoting transparency in the functioning of the same. It enables the courts to exercise the powers of judicial review and verify the actions undertaken by both President and the Governor so as to arrive at the satisfaction on the necessity of the Ordinance.

Another important observation that I made is that re-promulgation is fundamentally at odds with the principal of parliamentary supremacy. It seems that the concept of re-promulgation of Ordinances and parliamentary supremacy cannot coexist in practical scenario. Also, Article 123 of the Constitution of India spells out requirements before resorting to the extraordinary measure of promulgating an Ordinance. It appears that the Government has converted the emergent power under Article 123 into a source of parallel law-making that is unethical to the scheme of the Constitution.

It has become a common practice that Ordinances are seldom brought before the legislature and are reissued again and again, violating the spirit of the Constitution. The court’s verdict seems to be a vital check on the power rampantly abused by the executive.

Thus, negligence and failure of Governments, at the Centre as well as states, are considered as fraud on the Constitution and thus fails to constitute a good spirit of law and order.

REFERENCES

1.      SCC Online

2.      http://indiankanoon.org/

3.      Law Times Journal

4.      Legitquest

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‘If the legislative and executive authorities are one institution, there will be no freedom. There won’t be any freedom anyway if the judiciary body is separated from the legislature and executive’ – Charles de Montesquieu

The concept of ‘doctrine of separation of powers’ or ‘trias politica’ was first introduced by a French philosopher, Charles de Montesquieu. According to him, there should be a three-tier machinery of the government i.e. legislature, executive and judiciary.

The idea behind this doctrine was that each organ/branch should have its own set of functions and responsibilities and must not overlap with the functioning of other organs. This would ensure that one organ doesn’t acquire too much power to pass tyrannical laws and would prevent misuse of power.  Montesquieu asserted that in order to effectively promote liberty in its true sense, the three powers should function independently.

It is believed that in order to maintain a stable political system, power needs to be balanced off amongst the various government bodies. The principle of separation of power tries to establish mutual relationship among the organs of the government while ensuring exclusiveness in their functioning. Thus, a strict demarcation of power is sought to be achieved by applying this principle. However, a strict demarcation of powers is not a very feasible idea and thus, the system of ‘checks and balances’ was introduced in the modern day approach towards the separation of power doctrine.

In India, the doctrine of separation of powers has acquired a contemporary approach and doesn’t follow strict separation of powers both in principle and practice.

Even though three organs of government (legislature, executive and judiciary) exist in India and have their own specific functions, they tend to overlap each other’s powers while working in their own ambit. This overlapping of powers is also recognized by the constitution of India.

Many countries follow the separation of power principle in current times; however, not all countries follow it in its strict sense. Around forty state constitutions specify the division of the government into three branches: legislature, executive and judiciary.

EVOLUTION

Montesquieu published a book in 1747, called ‘De L’esprit des Lois’ (The spirit of the laws) in relation with the doctrine of separation of powers.

The origin of the concept of separation of power can be traced back to ancient Greece. In 384-322 BC, Aristotle in his book, Politics, stated that there are three elements in each constitution and the balance between these reflect the balance of the Constitution. According to him, these three elements were the deliberative, the official and the judicial element.[1] He focused on the Constitutional forms of city-states of ancient Greece.

From Greece, it became widespread in the Roman Republic and derived its place in the initial Constitution of the Roman Republic. According to Polybius, the Roman Senate, Consuls and the Assemblies showed an example of a mixed government[2].

Later, during the reign of Edward I (1272-1307), this concept emerged in England, however, took force much later in time. In England, the three divisions were in the form of Parliament, the Council of King and the Courts. In the 16^th and 17^th century, a British politician, John Locke, expressed his views on the doctrine of separation of powers. However, Montesquieu was the first person to articulate this principle systematically, accurately and scientifically.

During the English Civil War, the composition of the English system of government was viewed as the division of powers between the King, the House of Lords and the House of Commons, where the king exercised the executive powers while the other two had control over the legislative powers.

In 1653, English General Sir John Lambert wrote one of the first documents that proposed a tri-partite system of separation of powers and was adopted as the Constitution of England for few years. A further development was observed with the separation of judicial powers from the other to branches. This was executed by giving juridical powers to the Crown to prosecute.

Montesquieu promoted the ‘tripartite system’ in England from 1729-1731. He tried to ascribe the tri-partite system (division of political power between legislature, executive and judiciary) to the British model of separation of power between the Monarch, Parliament and the Courts. However, the close knit connection between the executive and legislative branch led to its failure. From there, the doctrine of separation of powers became widespread due to the colonialism effect of Britain.

John Calvin (1509–1564), a French theologian, suggested setting up of different political institutions that complement and control each other through the system of checks and balances, to ensure a democratic setup and reduce the threats of misuse of political power.[3] Another French philosopher, Justice Bodin also presented his views on the doctrine of separation of powers.

Countries like USA did not have a model of strict separation of powers until the 18^th century. While some states of the USA like New Jersey showed a mixture of powers, the others like North Carolina and Georgia had clear and distinct separation of powers. However, in present times, the doctrine of separation of powers is applied in the strict sense.

Various countries like Uzbekistan have incorporated the concept of separation of powers between legislature, executive and judiciary in their Constitutional structure.

India also incorporated this feature as a part of their Constitution while framing the Constitution in the 20^th century.

Whereas, some countries like China reflect separation of powers in more than three branches. China has five branches of government, namely, the Legislative Yuan, Executive Yuan, Judicial Yuan, Control Yuan and Examination Yuan. This however does not signify a better political system in China as compared to other countries like Uzbekistan or UK.

 MEANING OF THE CONCEPT OF SEPARATION OF POWERS

The concept of separation of power reflects the principle propounded by Lord Acton that says that, ‘power corrupts and absolute power corrupts absolutely’. The reason why the doctrine of separation of power came into existence was that if more and more power is vested in the hands of a single person or a single body then that power becomes highly vulnerable to misuse. Thus, division of power ensures that no organ is able to pass arbitrary decisions by misusing the power.

This doctrine has been defined by various authors over the period of time. However, a general meaning that can be derived is categorized into three features as mentioned below:

a.      One person shall not be a part of more than one organ

b.     One organ should not interfere with the functioning of other organs

c.      One organ shouldn’t encroach on the functions of other organs i.e. it should not exercise the functions of other organs

The concept of separation of powers is based on a tripartite system, in which powers are distributed among the three organs of the government. These powers highlight the jurisdiction of each organ and each organ has to work within the boundaries outlined by their jurisdiction.

The three-tier mechanism of government as prescribed by this doctrine is explained below;

i.                 Legislative

The legislative organ is primarily responsible for enacting laws that express the ‘will of the state’. It wouldn’t be wrong to say that the legislative organ frames the basis of the structure and the functioning of executive and judiciary is dependent on it as until a law is framed, its implementation and application is not possible. The judiciary, in some cases, might act as an advisory body to the legislature but cannot control or function it.

ii.               Executive

The executive branch is in charge of implementation and enforcement of laws framed by the legislature. It also acts as an administrative head of the government and is the impetus of the government. An imbalanced executive can exhaust the government and might lead to its collapse.

iii.             Judiciary

The judiciary is vested with the power to apply the laws and ensure that they are being enforced in a proper manner. The foundation stones of the judiciary are the principles of natural justice, liberty and fairness. The judiciary is often kept independent from the other two organs in order to uphold the principle of a fair judiciary that is free from any sort of bias.

SIGNFICANCE

As mentioned earlier, the highlight of the doctrine of separation of powers is the division of power in order to prevent misuse and abuse of power by one organ.

While introducing the concept of separation of powers, it was widely believed that it would reduce the possibilities of corruption and other forms of maladministration. It plays a vital role in the formation of a balanced government.

The significance of the doctrine of separation of powers can be encapsulated in the following points:

·       Curbs arbitrary rule

·       Protects individual liberty, even in the cases where the government is the violator

·       Puts an end to autocracy

·       Efficiency in the administration is ensured as the power is divided among various individuals

·       Exhibits a ‘government of law’ that doesn’t work according to the whims and fancies of certain people who are in the position of power

·       Independence of judiciary leads to the establishment of a free and fair justice delivery mechanism

 AMERICAN MODEL OF THE SEPARATION OF POWERS

As Jefferson quoted, ‘The concentration of legislative, executive and judicial powers in the same hands in precisely the definition of despotic Government’.

The Founding Fathers of the United States of America (USA) believed that the American states had suffered a highly due to the broad abuse of power by the British Parliament and the Monarchy during colonialism. Thus, a new concept of the system of checks and balances was introduced as a hard-learned lesson from the colonialism.

As a remedy to this abuse of power, they decided to limit the powers of the federal government through different strategies. The branches of the federal government are divided by the exercise of different functions. The executive and the legislative branch were separated in origin by way of separate elections while the judiciary was kept independent.[4]

In USA, the doctrine of separation of powers is applied in a strict sense as the word ‘shall’ is used in the Constitution which implies that it is mandatory to follow the separation of powers in a strict sense.[5]

The works of Montesquieu inspired a number of statutes and legal documents of USA. Some of the most prominent ones are ‘Declaration of the Rights of Man’ and ‘The Constitution of the United States of America’.

Three departments have been established under the Constitution of USA to ensure adequate division of powers. These are:

a.      The United States Congress, comprising of the House of Representatives and the US Senate, with legislative power[6]

b.     The President with the executive power[7]

c.      The Supreme Court of the United States of America along with other US Federal and District Courts, established by law, with judicial power[8]

The case of Madbury v. Madison[9] is often highlighted when it comes to the development of the doctrine of separation of powers in USA. This case established the system of judicial review in USA.

Even though the application of the doctrine of separation of powers in USA is followed in a strict sense, some exceptions to this are seen in the form of the system of checks and balances. These checks and balances include the power of the President to veto a bill passed by the Congress, approval of Senate in the treaty-making powers and the power of judicial review.[10]

Hence, it is true that the application of this theoretical maxim was a difficult task but USA has observed a significant development in the past few years. The efficiency of this maxim when applied, gives rise to the administrative system of the United States of America, keeping in mind the practical implications of the same.

 SEPARATION OF POWERS – INDIAN PERSPECTIVE

The Indian adaptation of the separation of powers model is a classic example of application of the doctrine with various modifications. In India, the focus is laid on ‘separation of functions’ rather than ‘separation of powers’.

The basic postulate under the Indian Constitution is that the legal sovereign power has been distributed between the legislature to make the law, executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution.[11] Each branch in India has some overlapping powers that ensure harmonious working between all three organs in a democratic manner;

1.     Executive function of the legislative organ – election of President by forming an electoral college

2.     Judicial function of the legislative organ – impeachment of President and Vice President of India, Judges of Supreme Court and High Court and the Chief Election Commissioner

3.     Legislative function of the executive branch – the legislature can delegate its law-making power to the executive branch by way of delegated legislation

4.     Judicial functions of the executive branch – the authority of the president to grant pardon, suspend or lessen the punishment of a person convicted by the courts. Tribunals (quasi-judicial bodies) also exercise judicial functions.

5.     Legislative power of the judiciary – the India judiciary is not only a redressal forum but is also responsible for interpreting the meaning of laws enacted by the legislature which includes expanding the scope of such laws and rights. Judicial precedents also hold a binding value on the lower courts and can be equaled to laws.

6.     Executive powers of the judiciary – the power of judicial review enables the judiciary to review any action of the executive and issue directions in case of dispute. The Supreme Court can also exercise advisory jurisdiction.

The Indian Constitution has expressly adopted some Articles in relation with the doctrine of separation of powers as listed below:

a.      Article 50 – separation of judiciary from executive

b.     Article 122 and 212 – validity of Parliamentary proceedings cannot be questioned in Courts

c.      Article 121 and 211 – conduct of judges cannot be discussed in the Parliament or State Legislature except for the procedure of impeachment

d.     Article 361 – President or Governor are not answerable to courts for exercise of their powers

e.      Articles 53 and 154 – President and Governor enjoy immunity from civil and criminal liability

While applying the doctrines of constitutional limitation and trust in the Indian scenario, a system is created where no organ can usurp the functions or powers assigned to another organ by express or necessary provision, neither can they divest themselves of essential functions which belong to them as under the Constitution.

Apart from this, the Indian constitution has a well established system of checks and balances that prevents capricious and arbitrary use of power.

The essence of the Constitution of India is that it produces a system which is the result of amalgamation of the principle of separation of powers with the doctrine of parliamentary sovereignty in a manner to give effect to both, yet without the rigidity of the two systems. The Parliamentary democracy is cemented as the corner stone of constitutional edifice in preference to the Presidential system of governance.

Therefore, axiomatically it can be said that Indian Constitution does not contemplate separation as embodied in the ‘pure doctrine’, it rather perceives and accords to it in its central sense and not in its literal sense, rather in its purposive sense, i.e. non conferment of unfettered powers in a single body of men and to motivate checks and balances.

In the Constituent Assembly Debates of 1948, a clear vision of the ideal of separation of powers and the reasons for adoption of this ideal is obtained. The development of this doctrine in India has a deep connection with the bitter past experiences, like that of England, where the concentration of all power in the name of one, known as the king, had many evils culminating in a Civil War.

Thus, a common view of the importance of separation of powers in order to ensure Civil Liberties and the Rule of Law[12] was derived. Furthermore, the normative nature of the doctrine, in euphemistic parlance, can be understood as being committed to the achievement of political liberty, as essential part of which depends upon restraining the power of the government and providing for checks and balances.[13]

Judicial Pronouncements in India and Separation of Power Theory

‘The executive is derived from the legislature and is dependent on it, for its legitimacy’, was the observation made by the Hon’ble Supreme Court in the case of Ram Jawaya v. State of Punjab[14].

In the case of I.C. Golakhnath v.  State of Punjab, the Constitution brings in actuality the distinct constitutional entities i.e. namely, the Union territories, Union and State. It also has three major instruments namely, judiciary, executive and legislature.

In the landmark judgment of Keshavananda Bharati[15], the amending power of the Parliament was curtailed in matters of the basic structure of the Constitution. Any alteration to this was prohibited by resorting to Article 368 of the Constitution.

This principle was later reiterated in the case of Indira Nehru Gandhi v. Raj Narain (1975) [16], where the court was of the view that adjudication of a dispute is a judicial function and parliament can never be competent to exercise this function.

Another interesting case is the Swaran Singh case (1998)  where the Supreme Court declared the Governor’s pardon of a convict unconstitutional.

CRITICAL ANALYSIS

The doctrine of separation of powers clearly runs on the lines that a single person or body should not be conferred with the responsibility of all the powers of the government. It acts as a safeguard against tyranny or oppression that might arise as a result of arbitrary decision making.

The essence of this doctrine is derived from the ‘Doctrine of Non-Delegation’ which states that one branch of the government must not delegate its power to another by authorizing the other entity to exercise its own functions or powers.

This doctrine reflects both explicit and implicit forms in the Constitution of countries that impose a strict structural Separation of Powers.

The following interpretations can be drawn from the critical analysis of the doctrine of separation of power:

·       It is highly utopian to imagine a democratic system exercising absolute structure of Separation of Powers. At the same time, complete absence of a structure of separation of powers in a democratic system is also not possible. Thus, a middle way is created in the form of ‘check and balances’ to apply this doctrine into practice.

·       The powers, functions and responsibilities of various organs of the government and mutually inclusive and thus tend to overlap and intersect each other. This often creates confusion in proper allocation of responsibility.

·       There exists an inherent competition among the organs of the government due to the complex nature of powers and responsibilities and this might end up leading to conflicts among the organs in many cases.

·       Important information obtained through this analysis is that the extensive application of this doctrine into our political, social and legal structure is a constantly evolutionary process and is not finite.

·       The modern day states are very different from the state that used to exist few decades ago. They have witnessed drastic changes from being minimal, non-interventionist states to welfare states. This had lead to increase in the number of roles that the state has to cater to.

·       These multifarious roles include protector, arbiter, controller and provider. This omnipresent nature has diversified the functions and has increased interdependence within the organs.

·       This has also developed a key notion of essential and incidental functions of each organ. The primary aim of this distinction is to prevent encroachment of an organ into the essential sphere of activity of the other.

·       The judicial review power acts as a preventive measure to strengthen the foundations of democracy and prevent the administrators and law-makers to exercise their whims and caprices, turning it into a despotic regime.

·       However, the power of judiciary to review shouldn’t be exercised arbitrarily too. An important aspect in this regard is that the power of judicial review doesn’t establish the judiciary as a ‘super-legislature’ or a ‘super-executive’ as stated by Sir A.K. Aiyar.

Hence, it wouldn’t be wrong to say that the doctrine is undesirable and impractical when applied in strict sense. However, this does not render the doctrine invalid and the logic behind the doctrine stills holds immense value. The polarity between various organs is meant to avoid absolutism and bring-in stability.

Thus, a balance between the doctrine of separation of powers and the doctrine of checks and balances should be established for better outcomes.

CONCLUSION

Thus, it can be concluded that the above discussion of the doctrine does not tilt in favor of the ‘pure doctrine’ of Separation of Powers. The principle of the doctrine of separation of power has been accepted by most of the Constitution in a modified and broader sense and has been accepted as an idea functional separation of powers, rather that inculcating the idea of structural separation.

The goals of a democratic country are enshrined in their Constitution and the state machinery is set in a way that it reflects upon those goals. By providing absolute power to a small group of people, the idea of arbitrary rule and tyranny comes into the picture. Thus, separation of powers is very essential to ensure democratic governance in a state. However, this should not be interpreted in a sense that the doctrine of separation of powers is applied strictly or rigidly.

Constitutionalism, the philosophical concept of the constitution also insists on limitations being placed upon governmental power to secure basic freedoms of the individual. Hence, the conclusion drawn out of the study is that there is no strict separation of powers but the functions of the different branches of the government should be sufficiently differentiated in order to cater to the needs of the society.

All three branches of the government; the legislature, executive and judiciary constitute the powerful ideology of effective political system in a country and its importance can be observed while monitoring the political system and advocating new measures when the rights of people are threatened.

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–        Nelson Mandela

Human Rights are viewed as an existential threat by the Government of the People’s Republic of China. The Chinese Communist Party (CCP) has shown signs of tension over providing political freedom in mainland China due to its belief that political freedom would jeopardize its control of power. Thus, it has built a sophisticated surveillance state with a high-tech internet censorship system in order to oversee, control and suppress public criticism. Strict regulations have been set up by various agencies to monitor the news that is available to the Chinese population.

These restrictions are not limited to mainland China but are also extended abroad through the help of China’s growing economic leverage to silence any voice that is raised against the Chinese ideologies or the Chinese Government and to implement a systematic attack on the emerging concept of enforcing Human Rights.

‘It doesn’t matter where I am, or what passport I hold. [Chinese authorities] will terrorize me anywhere, and I have no way to fight that.’

–        Uyghur Muslim with European citizenship, Washington, September 2019[1]

The enforcement of Human Rights in mainland China are reviewed periodically by the United Nations Human Rights Committee (UNHRC)[2] to which the government of China and various other governments have often shown dissent. The Chinese government claims that the existing policies and measures are enough to guard their people against Human Rights violations. However, it is often viewed that the state authorities in mainland China regularly sanction and organize such abuses. The succession of Xi Jinping as the Secretary General of the CCP in 2012 has further deteriorated the situation of Human Rights violations in the country. The violations of Human Rights that took place during his rule were the most brutal oppression in decades.

The rationale behind attack on Human Rights by the Chinese Government is to strengthen the weak system of rule by repression rather than popular consent. The CCP, on various occasions, has been accused for targeting activists and their family members by harassing, imprisoning and torturing them. It has also been accused of frequently imprisoning people who’ve presented their views on politically sensitive topics. In fact, lawyers who worked on cases related to free speech and abuse of power were also targeted.[3] Amnesty has pointed out that there needs to be a higher awareness about cases related to abuse of power like that of Cao Shunli[4] (a Human Rights activist who died in police detention). Her family claimed that she wasn’t provided adequate medical attention and that they were denied access to her body. However, the Chinese Government continues to deny any mistreatment and stated that ‘lawful rights were protected in accordance with law’.

A group of feminist activists were also detained, some of them for more than a month. Also, the Nobel Peace Prize winner Liu Xiaobo[5] is serving an 11-year jail term for subversion.

The Chinese government claims that it is for China to decide and that only the 1.3 billion Chinese people have a say on China’s Human Rights.[6]

Various other sanctions have also been imposed by USA as well as various organs of UN on the Chinese Government, accusing them of severe Human Rights violations. However, little change has been observed in the field of Human Rights in the country in the last decade.

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The Protection of Civilians (PoC) in armed conflict has its roots in 18th century International Humanitarian Law (IHL) protection concepts put forward by the International Committee of the Red Cross (ICRC).In 2014, we celebrated the 150 years of adoption of the Geneva Convention for the Amelioration of the Wounded in Armies in the Field, 1864.[2] It was one of the first IHL treaties that tried to regulate and limit the conduct of warfare. A recent addition to this is the Additional Protocol III, 2005 to the 1949 Geneva Conventions.

The adoption of 1949 Convention was a complicated and difficult process; however, it was able to enshrine the humanitarian ideal of ensuring the protection of civilians in a legal instrument.[3]

The nineteenth century IHL treaties referred only marginally to civilians[4]; however, the twentieth century witnessed a shift in the pattern, with PoC taking a more central role in the International Laws.

During a war or armed conflict, most victims turn out to be civilians. Thus, it becomes the cornerstone of International Humanitarian Law (IHL) to protect these civilians. This protection isn’t limited to their life, but also extend to the protection of their public and private property. Some particularly vulnerable groups, like women, children and the displaced are provided with special care by the IHL.

A comprehensive legal framework has been established and guidelines have been set up to ensure that non-combatants remain protected from the military operations, considering that these guidelines are carefully implemented from both the sides.

However, violations of such guidelines and IHL have often taken up brutal forms of death, injury, rape and forcible displacement of the civilians. Apart from this, they also have to face situations like hunger, malnutrition and conflict-induced increases in diseases.

As we observe a surge in modern day conflicts, the increase in civilians caught in the crossfire cannot be ignored. This leads to a legacy of socio-economic challenges that are faced by the victims as well as their families, for a long time after the hostilities end. It wouldn’t be wrong to state that this leaves an ever-lasting scar on the life of these people.

A rapid development in this regard is necessary to protect these civilians from the hostilities of warfare. One of the major barriers to implementation of such laws is the severe lack of respect for the rules by parties during times of war.

Analysis

Sir John F. Kennedy quoted that, ‘It is an unfortunate fact that we can secure peace only by preparing for war’.

Various countries involve in unfair war practices that include surprise attacks inside the borders of another country, surgical strikes and bombardments on civilian areas, to either take over the land of other countries or to prove their strength and induce fear.

The United Nations (UN) is constantly working to develop a mechanism to ensure PoC and has also developed it as one of its potential benchmarks, to determine the success of peacekeeping mission. This concept is gaining importance both in the international as well as regional organisation associated with crisis management.

For example, in NATO’s (North Atlantic Treaty Organization) operations in Afghanistan and Libya, the significance of PoC became a specific objective rather than a counter-insurgency strategy.[5]

The plans of regional organisation are constantly being scrutinized to ensure that state militaries comply with the IHL principles and place emphasis on the well-being of non-combatants. Even the African Union along with the UN peacekeeping missions have extended their role beyond IHL obligations to establish secure environment along with positive civil-military relations, and differentiate between combatants and non-combatants (civilians).

The main issue arises in relation with the translation of thematic discussion about PoC and IHL to concrete measures to mitigate the suffering of civilians in times of war and armed conflicts. And even though civilians are not directly involved in attacks, they fall prey to its consequences and after effects.

We have an extensive legislation when it comes to PoC. However, the problem for around past 50 years, has been applications of these legislations. A key challenge is the accountability for gross violations in this regard. Countries are often seen violating the rules and guidelines in relation to PoC, but no significant action has been taken yet, in order for it to function as deterrent and prevent other countries from involving in such practices.

Moreover, many countries view the intentional killing of civilians as a method of warfare and thus, violations of IHL in a considerable amount of cases is neither accidental nor a result of inadequate efforts to minimize incidental harm.

The pragmatic nature of IHL is visible in its constant efforts to balance the military necessity with the humanitarian considerations.[6] Unfortunately, a certain level of harm/damage to the civilians is considered ‘acceptable’ while analyzing the hostile war-like situations as it is still not practically viable to imagine war and war-like situations with zero casualties.

The IHL clearly provides that civilians, under the power of enemy forces must, in all circumstances, be treated humanely, without any adverse distinction.  It also states that they must be protected against all forms of violence and degrading treatment, including murder and torture. Moreover, in case of prosecution, such civilians are entitled to a fair trial affording all essential judicial guarantees. However, it is very unlikely that the countries involved in conflict treat these civilians in a humane manner. To the contrary, it is not an unusual site to find war prisoners facing hostile treatment and severe torture if they are captivated. Also, a trial itself is a far-fetched dream that most of them are never able to see and even if they do, the chances of it being a fair trial are very low.

Some major violations, in the past few years are listed below:

1.           Myanmar’s atrocities against ethnic Rohingya Muslims
2.          United States’ retreat from Human Rights Council
3.          Repression of Turkic Muslims in Xinjiang
4.          Syrian Civil War
5.          Israel-Palestine Conflict
6.          Serbia-Kosovo Dispute
7.          Peshawar School Massacre

However, this list is not exhaustive in nature and various other cases of severe atrocities also exist. Many civilians in or around the area of conflict either succumb to these atrocities or have to migrate to other places, in many cases to other countries to seek shelter. They not only suffer from the trauma of leaving their motherland, but also have to face conditions of sheer poverty and are often not accepted by many countries. Also, in most of the cases, they aren’t recognized as the citizens of a country and have no access to the rights and benefits available.

The choice of weapon plays a crucial role when considering protection of civilians in an urban environment. The use of high explosive munitions, such as artillery and weapons that have the capacity to destroy a large area should be kept away from civilian areas.

The UN secretary-general, in his 2009 report on the protection of civilians in armed conflict, showed concern over use of explosives in densely-populated areas as it might have a severe and indiscriminate humanitarian impact on the civilians killed or injured by the damage, along with the loss to infrastructure.[7]

Almost 60 years have passed since the adoption of the Geneva Conventions, and still deliberate attacks on and abuses against civilians during armed conflict are widespread. It wouldn’t be incorrect to refer to them as an inevitable by-product of war.

In various recent on-going conflicts, civilians have been subjected to indiscriminate attacks. It is a common practice states blame such attacks on the civilian population on the terrorist organisations or non-state actors. However, these attacks are not only the result of non-state actors or terrorist organisations, but also are preferred by state related actors.

Few atrocities that these civilians are subjected to include:

•        war-crimes like genocide
•       ethnic cleansing
•        forced displacement
•       indiscriminate attacks
•        sexual harassment and violence – including rape and sexual slavery
•        unlawful recruitment and use of children as soldiers
•       killing and maiming of children, etc

The lack of respect towards such civilians is one of the major concerns of recent times that leads to the adoption of such brutish measures as mentioned above. In USA, State and federal prisons continue to hold over 2 million people, with another 4.5 million on probation or parole.[8]

The Global Protection Cluster (GPC) is currently looking into the situation and is developing a guidance note to address the challenges faced by humanitarians and peacekeeping forces in interacting the military actors.

The UN Office for the Coordination of Humanitarian Affairs (OCHA) has devised 5 guidelines to ensure PoC in conflict zones around the world:[9]

1.    Parties to conflict should avoid the use of explosive weapons in populated areas
2.    The UN Security Council should not accept attacks on children as the “new normal” of armed conflict
3.    States should ensure that civilians in conflict zones can access medical care and humanitarian assistance and enable humanitarian and health workers to work in safety
4.    States should ensure better protection and assistance of people forcibly displaced within their country by upholding their human rights
5.    States should condition their arms exports on respect for international humanitarian and human rights law

Various other such remedies and solutions have been suggested theoretically; however, we are still finding it difficult to incorporate these in the practical scenario.

Therefore, a shift of focus is needed to ensure that the proposed laws, regulations and guidelines are strictly adhered to, accountability of States in matters of violation should be increased, prosecution in cases of serious violations of IHL should be ensured, remedial and reparative mechanisms should be devised for victims and comprehensive strategies should be adopted to enhance the compliance with IHL, both by the state as well as non-state actors.

Also, we should focus on establishing peace by preventing situations where armed conflict can arise. Peaceful connections between the States will not only help us develop a better world for living, but will also help us secure and preserve various resources that are used in wars and conflicts each year thereby enhancing the quality of life.As quoted by Sir H.G. Wells, ‘If we don’t end wars, wars will end us’.

Conclusion

The IHL is a comprehensive framework of laws that aims at providing protection to civilians in midst of conflict. However, some fingers have been pointed out towards the Geneva law in recent times. Thus, it becomes mandatory to establish a more effective compliance mechanism to prevent violation of IHL.

Also, a sense of ownership needs to be induced in all state and non-state actors, to respect the rights of the civilians and ensure that no harm is caused to them irrespective of their motives and beliefs. A broader approach that entails integrated response to threats by identifying the trends that are giving rise to humanitarian concerns along with development of punitive for PoC. Thus, it becomes a common responsibility of the human kind as a whole to adopt and assume their responsibilities to protect and respect civilians during an armed conflict.

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Adopted on December 5, 1979, opened for signature on December 18, 1979, and came into force on July 11, 1984 (General Assembly resolution 34/68), the Moon Agreement, 1979 is a framework of laws relating to the Moon and other celestial bodies within the Solar System, other than Earth, including orbits around or other trajectories to or around them.1 It is one of the 5 multilateral treaties deliberated and developed by the Legal Subcommittee for the Committee on the Peaceful Uses of Outer Space (COPUOS) from 1972 to 1979.

The Moon Agreement aspires to establish an international regime to govern the exploitation of resources that explorations by various countries may yield. But there has been no consensus on establishment of such laws. Hence, in 2018, S. Neil Hosenball (NASA General Counsel and chief US negotiator for the Moon Treaty) decided, that negotiation of the rules of this international regime should be delayed until the feasibility of exploitation of lunar resources has been established.

It upholds and elaborates various provisions of the Outer Space Treaty, however, it is still considered to be a failed international law and remains unratified by major space faring powers like United States of America, Russia and People’s Republic of China. This article critically analyses the provisions of the Moon Agreement, 1979, to draw out conclusions about its relevance and validity in the current times along with its future implications.

INTRODUCTION

The United Nations has the power and responsibility to develop and codify international law and has thus become a focal point for international cooperation in outer space.4 The United Nations Treaties and Principles on Outer Space are “Text of treaties and principles governing the activities of States in the exploration and use of outer space, adopted by the United Nations General Assembly”. However, extension of law to outer space has been gradual and evolutionary, beginning with the study of questions relating to legal aspects, continuing to the formulation of principles of a legal nature and, then, incorporating such principles in general multilateral treaties. The declaration of legal principles governing the activities of States in the Exploration and Use of Outer Space was adopted by the General Assembly in 1963. This text is the genesis of what has become known as “Space Law”.

Thereafter, as stated above, UN saw development of 5 multilateral treaties, out of which one became the Moon Agreement or the Moon Treaty that provides several guidelines and provisions outlined in 21 articles.

The Agreement governs the activities on moon and other celestial bodies stating that the moon and its natural resources are “the common heritage of mankind”. It declares that the Moon should be used for peaceful purposes and for the benefit of the entire international community reiterating the fact that lunar resources shouldn’t be subjected to claims by nations on basis of sovereignty or by means of occupation.  The primary objective of the Moon Agreement is ‘to provide the necessary legal principles for governing the behaviour of states, international organizations, and individuals who explore celestial bodies other than Earth, as well as administration of the resources that their explorations may yield.’8 The Agreement proposes to establish an international regime or framework of laws that apply to the Moon and to other celestial bodies within the Solar System (Article 11.5; Moon Agreement, 1979).9

Currently, 18 States are parties to the Agreement, out of which, seven have ratified the same and the rest acceded. Four other Sates have signed, but not ratified the treaty yet.

ANALYSIS

As mentioned earlier, the Agreement reiterates most of the provisions of the Outer Space Treaty. However, it provides a new angle to the international space laws by addressing the issue of exploitation of natural resources, by applying the concepts of ‘common heritage of mankind’ and to have the participating countries develop ‘appropriate procedures for mining’ in order to protect and sustain the natural environment for the present as well as future generations. It explores some significant themes by ensuring that parties to this Agreement consider the repercussions of their activities in space and the environmental changes that follow and identify the general need to promote better standards of living. Article 2 of the Agreement specifically states that the Moon and other celestial bodies are a province of all mankind and not subject to national appropriation by any means.

This Agreement augments the agreement on outer space laws in several ways. It is first space law treaty that specifically mandates that sustainable options should be used while exploring the Outer Space, considering the idea that both, the present and the future generations have an equal right on the available resources.13 It also provides wider prohibitions on use of nuclear weapons or weapons of mass destruction as well as setting up of military bases on moon and other celestial bodies than the 1967 treaty.14 It also expresses the aspiration to prevent the Moon and other celestial bodies from becoming a source of international conflict.

Apart from this, it also rectifies another flaw of the Outer Space Treaty by banning the ownership of any extra-terrestrial property by any organisation or private person, allowing only international and governmental organisations to carry out research. The Agreement provides strength to the concept of ‘Global Commons’ by disallowing individual ownership of resources on Moon and other Celestial Bodies.

The question however, is whether this Agreement successfully justifies its ratification as a new space law, considering that it has not been ratified or signed by any of the ‘Big Three Nations’ (USA, Russia and China).

The Moon Agreement is one of the least supported treaty/agreement relating to the outer space law.15 India is the only country with independent spaceflight capabilities that has signed (but not ratified) this Agreement.

One of the major objections that is often raised is that this Agreement mandates that extracted resources, along with the technology used to achieve that end should be shared with developing nations that have not invested funds or assumed risks to enable use of lunar resources.

The moon plays an important role in the exploration of Outer Space, and exploitation of its resources can prove to be commercially profitable in the long run. Thus, each major space faring power wants to extract the maximum benefit out of the Moon’s available resources. But the Moon Agreement acts as a check on the countries by mandating that the UN should be informed about any new station that is to be placed on the Moon. Also, one of the major focus points of the Agreement is ‘sharing’ of resources which is a major drawback for the developed nations when analysed commercially.

Even though, the Agreement doesn’t require ratification from any of the “Big Three” to come into force, it is not a binding international law as US, Russian Federation and China have neither signed nor acceded to, nor ratified it, leading to a conclusion that it is a failure from the standpoint of international law. An example of Dennis Hope, where he asserts a claim over the Moon in 1980, has not formally been rejected by the US, and thus, questions the validity of the Moon Agreement as a binding international law.

A reason for the failure of this Agreement is the threat it imposes on the developed nations. Similar to the Agreement of Law of Sea Convention, this Agreement might also demand for the developed nations to share their technology and innovations with the developing nations, which the nations like USA, often consider hinderance to their progress.

If the international regime that is envisioned by the Moon Agreement takes a form similar to that of the Enterprise (proposed in the Agreement of the Law of the Sea Convention), developed nations would be required to relinquish a portion of the resources extracted from the Moon and other celestial bodies. They would also be required to surrender technology developed by private industries under their jurisdiction for extracting extra-terrestrial resources so that the

developing nations also get a chance to explore the available resources. This implies that the Moon Agreement’s common heritage view might also apply to Intellectual Property Rights.

Another limitation to the Agreement is that it fails to define the term ‘resources’, thereby posing a critical challenge to the countries that ratify the same. The Agreement remains ambiguous at various instances, leading to its failure as an international space law.

Another major drawback of the Agreement is that it is a compilation of dictates from past agreements, with only six out of 21 articles that aren’t addressed previously in other space laws. Apart from this, the areas that are novel, lack the clarity required to make necessary changes.

Louis de Gouyon Matignon, in his study on the Moon Agreement states that, “the Agreement is a germinal legal framework for developing the required laws, rather than a finished set of detailed laws”.

Therefore, this Agreement requires a lot of changes before it can actually be implemented in the current scenario. However, as mentioned earlier, negotiation of the rules of this Agreement have been delayed until exploitation of such resources, available on Moon and other Celestial Bodies, becomes a reality.

Although, the Moon Agreement has a lot of drawbacks, it also creates a shadow of customary law that could grow such that non-parties could find themselves overshadowed by the penumbra of the Moon Agreement, especially if those non-parties take no action to refute its legitimacy. Also, the soft power gains of China and Russia might promote them to sign and ratify the Moon Agreement, restoring its status as a customary law binding on parties and non-parties alike.

The assumption that the Moon Agreement has no legal effect because of the non-participation of the Big Three nations is false. Hence, to officially curb the power of the Moon Treaty of becoming a customary law highly depends on its official denunciation by these nations.

CONCLUSION

Considering the advantages and the drawbacks of the Moon Agreement, 1979, it is evident that some major changes are required before making it binding on parties and non-parties, along with the ratification of major space faring powers. Thus, the UN should review the present provisions of the Agreement and incorporate the required changes and also provide a better clarification on the already existing clauses. However, the genuine test of the Moon Agreement as a treaty as well as a customary law will only be possible after exploitation of the extra-territorial resources becomes technically and economically feasible

Author: Sujata Porwal, Legal Intern at Legal Desire (June 2020)

Sujata is a student of law, currently pursuing BA. LLB. (Hons.) degree from Symbiosis Law School, Pune. Criminal law and psychology, along with Sports Law are few subjects of her interest.

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