Prostitution is one of the oldest professions in the world. It is a deplorable state of affairs where one person offers sexual intercourse to another for money. Although prostitution of women is a well recognized issue, the participation of men in this system is no new development. The reason the term ‘system’ has been used for referring to prostitution is that it is not a solitarily occurring process, which does not manifest itself. In fact, in most cities in India, prostitution is very much present, in some form or the other. It may interest the reader to know that in the entire Indian sub-continent, it is estimated that there are more than 2 million people involved in prostitution, 30 per cent of whom are believed to be girls. Concentrated in so called ‘red light’ areas, the brothels in India house between 2,70,000 and 4,00,000 children. Although the exact figure may never be known, it is clear that many children are being sexually exploited in India, with about 20 percent being brought in from Nepal. From the ‘devdasis’ in ancient India to the ‘nautch’ dancers in the British era, the form in which prostitution has been showcasing itself is diverse, the recent trend being those of ‘masseurs’. But one thing is for sure, prostitution is an inevitable depravity which will only continue to grow, if nothing is done to check it. If women and children were not enough, even men, now, are tramping into prostitution. And the trouble is that they are not just offering their services to rich affluent women.

The acceptability of homosexuality in Indian morality is a debatable question, but is prostitution too? What about homosexuals indulging in prostitution? But in spite of the disparaging attitude that people in India have of them, the fact remains that they are very much in business. Male sex workers, also known as ‘Gigolos’ are on a growing presence in India. In Delhi alone, there are as many as twenty “agencies” offering “handsome masseurs” in the classifieds of the newspapers. They offer both in and out services, although the facilities are usually very basic. Local middle class Indians are also now using these services. Fees are discussed over the phone, typically 1000 – 3000 Rs. Large percentage of male sex workers are eunuchs. Although the profession does not have official sanction, little effort is made to stamp regulate it. Sonagachi in Kolkata, Kamathipura in Mumbai, G.B. Road in New Delhi, Reshampura in Gwalior, Budhwar Peth in Pune, Dalmandi in Varanasi, Naqqasa Bazaar in Saharanpur host thousands of sex workers in India.

II. History.

There are many illustrations which pinpoint the existence of prostitution way back in time. It was revered highly among Sumerians and Babylonians. In ancient sources (Herodotus, Thucydides) there are many traces of hieros gamos, starting perhaps with Babylon, where each woman had to reach, once a year, the sanctuary of Militta (Aphrodite or Nana/Anahita), and there have sex with a foreigner, as a sign of hospitality, for a symbolic price.

A similar type of prostitution was practiced in Cyprus (Paphos) and in Corinth, Greece, where the temple counted more than a thousand prostitutes (hyerodules), according to Strabo. It was widely in use in Sardinia and in some of the Phoenician cultures, usually in honour of the goddess ‘Ashtart. Presumably by the Phoenicians, this practice was developed in other ports of the Mediterranean Sea, like in Erice (Sicily), in Locri Epizephiri, Crotone, Rossano Vaglio, Sicca Veneria and other towns. Other hypotheses regard Asia Minor, Lydia, Syria and Etruscans.

According to the Bible, the Canaanite peoples had a system of religious prostitution. This is seen, for example, in Genesis 38:21, where Judah asks Canaanite men of Adulam “Where is the harlot, that was openly by the way side?”

III. Legal Position in India and other countries

Prostitution means the sexual exploitation or abuse of persons for commercial purposes, and the expression ‘prostitute’ shall be construed accordingly. Thus prostitution is not confined to the act of a female offering her body for hire, but includes sexual exploitation or abuse of a male, female or a child for commercial purposes. In order to constitute prostitution, the act of the female (or person, emphasis added) must be an act of offering her body for promiscuous sexual intercourse and that this must be for some consideration or hire, whether in money or in kind. Besides the provisions in the Indian Penal Code relating to child prostitution, the Immoral Traffic (Prevention) Act 1986 was enacted for the prevention of immoral traffic. All persons, whether male or female who are exploited sexually for commercial purposes, fall under the purview of the Act. The Act also distinguishes between ‘child’ and ‘minor’, a child being below 16 whereas a minor is between 16 and 18 years of age. Offenses under the Act which involve children are dealt with very strictly by enhancing the period of imprisonment which the offender would have incurred had the victim been an adult. The laws regarding prostitution in India do not make any distinction, as far as punishment is concerned, between the giver or receiver of a person under eighteen years for an immoral purpose. A person who lives on the earnings of the prostitution of any other person may be punished with imprisonment for a term which may extend to two years or/and with fine which may extend to Rs 1000. The provider of a minor for the purpose of prostitution may be imprisoned for a term which may extend to ten years and shall also be liable to fine. The dedication of minors to the service of a temple as dasis(servants) amounts to a disposal of such minors, knowing it to be likely that they will be used for the purpose of prostitution. The State regulation of Sexuality Continues to generate controversy amongst feminist scholars and activists, criminologists and law-makers. The subject of prostitution has long vexed criminal justice authorities in most other countries throughout the world. Law-makers are faced with the onerous task of attempting to appease the conflicting demands of various segments of society. On the one hand law-makers wish to uphold the principles of a liberal democratic society by allowing consenting adults to freely engage in sexual conduct, while on the other hand they are anxious to consider the demands of residents who object to the ‘nuisance’ aspects of prostitution, as well as those who object to prostitution on religious, moral or other grounds. Prostitution in countries like Iran, Egypt and Thailand is expressly declared illegal. Whereas in countries like Argentina, Canada, Brazil, Kenya, New Zealand, Senegal and the UK, prostitution is not illegal per se but soliciting, abetting, running a brothel and living off the earnings of prostitutes is illegal. On the other hand, in countries like Germany, Australia, Netherlands, Peru, and Turkey prostitution is legal, with a few minor restrictions.

IV. The Issues

Most people, if not all, when they hear the word ‘prostitute’ automatically assume the feminine gender, which is understandable. Unfortunately the development of the arguments for or against prostitution and studies on prostitution have until recently continued on a gender bias, with no concern for men involved in prostitution, either as workers, or more glaringly, as clients. Policies, services, research and rhetoric have chosen to participate in the battle between men (clients, cops) vs. women (prostitutes), instead of looking at prostitution as a ubiquitous ingredient of the human experience.

Eunuchs also indulge in prostitution as they are deprived of any other means of surviving. They are often faced with violence from the police, clients, and are often subjected to extortion from the police in order to carry on with their work.

Most know of sexually transmitted diseases through experience, but there are few preventative measures, such as condoms, that are made available to them and due to their legal status, no regimen of testing for AIDS or other diseases are available.

Where sex work is criminalized, sex workers are much less likely to disclose their occupation when seeing a doctor. Without knowing the occupational risks of a patient, it is hard for doctors to provide good medical care.

The prostitution of males is unrecognized and a taboo subject in Indian societies, and thus, cases involving the sexual exploitation of boys are frequently under-reported and shrouded in silence. A very few programs address the prostitution of males in India because males are perceived as less emotionally or physically harmed by prostitution than girls, and therefore, are seen as not needing special attention and services. Most interventions in India that related to the sexual exploitation of males are focused on HIV/AIDS awareness work. Mass media echoes the same reluctance to explore the male sex worker. How many films can you name involving female sex workers? How many male?

V. Launda Dancers- Indigenous form of MSWs in India.

The Launda dancers of UP and Bihar, who are hired to spice up the entertainment barometer at marriages are the most vulnerable to sexual and physical assaults. These adolescents, generally effeminate males, dance in in marriage procession and ceremonies, dressed in women’s clothing. The dances could start late in the evening and continue non-stop until dawn. As the night progress the songs become risqué, complemented by vulgar and obscene body movements. By this time drunken men at the wedding party hurl abuse at the dancers. Often their backs are slashed with blades, when they are dancing wearing backless ‘cholis’. Often they are bitten and sank or stubbed.

A group of 10 to 15 men could physically carry a dancer to a field and gang rape him, and this is very common trend. They have faced torture all the occasions. Resistance only leads to grater torture and sometimes-even death.

V. Research and Studies- The West

A review of the literature on prostitution in general reveals a paucity of available research on young male prostitutes. Studies in the 1960s and 1970s have focused almost exclusively on adult female prostitution, and adult male prostitution has been the subject of much less research.

Although researchers have categorized their subjects into diverse and heterogeneous groups, which they de­scribed as flexible categories, their impressions remain narrowly focused on pathology without being sensitive to any strengths or survival skills. For example, they saw their subjects as having poor judgment and as suffering from immaturity. In addition, the subjects’ lifestyles are characterized by family rejection and self destructive behaviors. These views were consistent with earlier and contemporary research, which emphasize several similar family characteristics, including a high frequency of broken homes, a lack of affection, and indifferent or hostile mothers, fathers, and stepfathers¹¹. Most of the studies on juvenile prostitutes emphasize that typical male prostitutes are masculine in appearance and that most are not homosexuals. Coombs’ ( 1974) subjects were classi­fied as 6 percent homosexual, 22 percent bisexual, and 72 percent heterosexual. Jersild ( 1956) found only seven subjects classified as homosexual among 300 male prostitutes in Copenhagen. Ginsburg ( 1967) expressed the viewpoint that the homosexual act does not define a person as a homosexual and that most male prostitutes are not homosexuals, although he accepts the possi­bility that some heterosexual prostitutes may drift into homo­ sexuality with continued homosexual experiences. On the other hand, it is incorrect to assume that male prostitutes only have sex with other males for commercial or recreational sex. Many, who are not self-defined as homosexuals, engage in sexual intercourse with women also. In contrast to this definition of male prostitutes as masculine/heterosexual is that of MacNamara ( 1965), who found 31 of 37 subjects “mildly to wildly effeminate” in appearance and mostly homosexual in preference.

In reviewing the literature on motivating factors leading to prostitution, the majority of the researchers agree on the deprived background. They do not all agree, however, on the other moti­vating factors leading to male prostitution. Jersild ( 1956) con­cluded that these factors are poor background and chance. Craft ( 1966), whose study included a number of sons of prostitute mothers, felt that parental attitudes and behavior were of prime importance in preparing a child for misconduct and motivating him to seek affection and money through prostitution. MacNamara ( 1965), who found no evidence for psychopath­ology, described the motivation as primarily socioeconomic as subjects felt they had “nothing else saleable.”

Sutherland and Cressey’s Differential Association theory identifies how most of these hustlers come to engage in street prostitution. They learn about this activity from friends who provide them with the techniques, motives, and rationalizations necessary to complete the deviant act.

VI (i) Understanding the relationship between male prostitution and personality development.

This is one of the many studies done by western researchers tracing the development and behavioral changes among MSW’s.

Twenty male prostitutes ranging in age from 19 years to 29 years were selected from the Hollywood area. Only those volunteering to be interviewed were used as subjects. A structured interview was constructed that allowed the investigator to study the personality development of each male prostitute. Some of the data obtained was easily coded. For example, age, years of schooling, years as male prostitute; other data was easily transformed into percentages. Clinical description of early parent-child relationships was obtained in most cases. The case descriptions were given to two psychiatric residents. They read each case description and then independently placed each into discrete categories. The categories were constructed to measure the degree to which the parent-child relationships were reported by the male prostitute.

Results. The results indicated that 19 fathers were in the categories of detached, absent, weak and inadequate, or unknown. One father was in the category of close- binding. On the other hand, 17 out of 20 mothers were in the categories of close-binding intimate or controlling- dominating. The other 3 mothers were all seen as detached.

The study also revealed the following results: 96 percent of the subjects reported having unhappy childhoods; 4 percent of the subjects described their childhood as satisfactory. A “lone wolf” pattern of childhood behavior was noted in 86 percent of the subjects. Seventy-eight percent of the subjects reported having had a good education during childhood. Ninety percent of the subjects reported no incidence of seduction in childhood. The mean income as a prostitute was $8,900 per year. The mean working hours was seventeen hours per week. Ninety percent of the subjects had never experienced full or part-time employment. None of the subjects had attempted suicide. Twenty percent of the subjects reported being addicted to LSD, heroin, or alcohol. Forty percent were involved in offenses such as robbery or violence. All subjects were involved in self- masturbation. Ninety percent of the subjects indicated discomfort in pursuing their current profession.

VI (ii) MSW’s in India and Australia: a comparison.

Note: The comparison was done using information published in the study Dancing Boys: Traditional prostitution of Young males in India conducted by PLUS, Kolkata and a ‘Commercial Sex Between Men: A Prospective Diary-Based Study - Statistical Data Included’ based in Australia.

The age group of MSW’s in India generally seen to be between 15 to 26 years. Out of the 400 respondents 30% are in the age group of 15-19, 69.5% are between 20-26. Mean age is 20. Whereas their Australian coevals ranged from 18-58 years with 46.1% younger than 25 years of age (mean age 27.06).

As far as the levels of education are concerned in the Indian study, 29% are illiterate (n= 400) and 7.25% are just literate. On the other hand, among the Australian group, the majority (69.2%0) had completed secondary education, and 39% had at least some additional tertiary education.

Table showing substance abuse in Indian group.

In the Australian study, MSWs reported that in 18.2% of the encounters clients had consumed alcohol, and that in 9.7% of the encounters they had consumed alcohol themselves before the encounters. In contrast, use of other drugs by clients before the encounter was much less common. MSWs reported that in only 6% of the encounters did they believe the clients had used marijuana, and that less than 1% used heroin prior to the encounter. However, they were more likely to report using drugs before the encounter themselves; in 20.7% of the encounters they reported using marijuana, and 6.8% used heroin before the encounter.

V(ii) (a) Safe sex.

To ensure 100% condom usage for penetrative sex is the most reliable achievement for prevention of STD/HIV. It was however seen in the Indian study that the knowledge and perception about condom, usage of condoms is low. 94.5%(n=378) have heard about condom but 8.5%(n=34) use condoms consistently in anal penetrative sex, 26% (n=104) said they sometimes use condoms, 33.5%(n=134) said they rarely use and 32%(n=128) said they never use condoms. About the availability of condoms 41.5%(n=166) reported they do not get condom every time they want.

As against the Indians, the majority of the commercial sex encounters(70.4%) in case of the Australians fell into the safer-sex category, 18.3% were in the probably safe/uncertain category, and only 8.3% of the sex encounters were in the unsafe category (defined as unprotected anal sex). Request for unsafe sex was an isolated event (only 7% of the encounters). Additionally, about 3% of the encounters were in the non-risk category. An analysis of these results using MIXREG revealed that there were no significant differences by location or by source of client.

VII. Protection and welfare to children of prostitutes.

The Supreme Court of India held in a public interest litigation that all the state governments must set up advisory committees with experts from all fields to make suggestions regarding measures for eradicating child prostitution, care and rehabilitation of rescued girls, setting up of rehabilitative homes and a survey of the Devdasi and Jogan tradition. Child prostitutes and children of prostitutes are to be treated as ‘neglected juveniles’ as defined in the Juvenile Justice Act 1986 and no stigma should be attached to them.

VIII. What needs to be done?

Clearly, the issue of unsafe migration, sexual exploitation of young gender variant males is serious one that has not received the adequate attention. The national, state and local governments and NGOs must recognize the issue and allot the necessary resources to tackle it. Measures should include the creation of services for boys vulnerable to prostitution, or engaged in prostitution, unsafe migration and sexual exploitation with particular focus on unsafe castration including short-term re-ability cum shelter home and HIV/AIDS prevention projects. Governments and NGOs also need to establish a network to help identify and counsel vulnerable children. Peer educators need to be trained and deployed as part of efforts to reach boys vulnerable and involved in prostitution. Finally, NGOs and government officials must take steps towards preventing other children from falling prey to sexual exploitation, including sexual health education, vocational training and micro-financing.

Islamic banking refers to a system of banking or banking activity that is consistent with the principles of Islamic Law [Shariah].

Shariah prohibits the payment or acceptance of interest fee for the lending and accepting of money respectively, {Riba, usury} for specific terms, as well as investing in businesses that provide goods and services considered contrary to its principles [Haraam, forbidden.]

Say, a customer buying a home with bank funds, will not ‘borrow’ from the bank and service it through equal monthly instalments. Instead, the bank will purchase the property and then rent or lease it out to the customer. Once the bank recovers the investment, it will transfer the property to the customer at a reasonable rate.

The basic idea behind such practice is to treat all, rich or the poor equally and to bring about equal distribution of wealth among all classes of people.

History:

The first experiment with Islamic banking was undertaken in Egypt undercover, without projecting an Islamic image. This experiment lasted until 1967 by which time there were 9 such banks in the country. These banks which neither charged nor paid interest, invested mostly by engaging in trade and industry, directly or in partnership with others, and shared the profits with their depositors. In the 70’s changes took place in the political climate of many muslim countries so that there was no longer any strong need to establish Islamic financial institutions undercover.

A number of Islamic finance banks came into existence throughout the Middle East e.g., The Dubai Islamic Bank (1975), The Faisal Islamic Bank of Sudan (1977), The Bahrain Islamic Bank (1979), fostering trade and business activity. In Spain and the Mediterranean and Baltic states Islamic merchants became indispensible middle men for trading activity. It is claimed that many concepts, techniques, and instruments of Islamic finance were later adopted by European financers and businessmen.

The revival of Islamic banking coincided with the world wide celebration of the advent of the fifteenth century of the Islamic calendar [Hijra] in 1976. The boost received by the oil producing countries due to rationalization of oil prices led Muslims to strive to model their lives in accordance with the ethics and principles of Islam.

Principles:

The underlying financial principles in Islamic finance have remained unchanged historically since their development over 1,400 years ago. The basic principles underlying Islamic banking are profit and loss sharing and prohibition of interest (Riba).

• Prohibition of Interest:

The prohibition on paying or receiving of interest is based on the Islamic tenet that money is only a medium of exchange it has no value in itself and therefore should not be allowed to give rise to more money via fixed interest payments put in bank or lent to someone. Human effort, initiative and risk involved in a production venture are more important than the money put in it.

Interest can lead to injustice and exploitation in society. The Quran characterizes it as unfair as implied by the word ‘zulm’ (oppression, exploitation). Money is intended to be means of exchange, and interest represents an increase in money itself, hence of all ways of getting wealth this is the most contrary to nature. – Aristotle.

• Profit-and-loss-sharing :

While Islam employs various practices that do not involve charging or paying interest the Islamic financial system promoted the concept of participation in a transaction backed by real assets, utilizing the funds at risk on profit–and–loss–sharing basis. Such modes used by Islamic banks are known as Musharakah (Joint Venture) and Mudarabah (profit sharing)

The concept of profit and loss sharing is a progressive one as it distinguishes good performance from the bad and the mediocre. This concept therefore encourages better resource management.

• Rules of permissibility:

Muslims believe that all things have been provided by God and benefits derived from them are for man’s use and so they are permissible except those prohibited in Quran.

When guidance is not clearly given in Quran it can be sought from other sources of law like, ‘Fiqh’ which means understanding.

Prohibition includes a number of key principles like:

i. Transactions in unethical goods and services

ii. Earning returns from a loan contract (Riba/Interest)

iii. Compensation-based restructuring of debts

iv. Excessive uncertainty in contracts (Gharar)

v. Gambling and chance-based games (Qimar)

vi. Trading in debt contracts at discount.

vii. Forward foreign exchange transactions.

Scenario Worldwide:

The global market for Islamic financial services, as measured by Shariah compliant assets has estimated growth by over 10% a year from about $150billion in the mid-1990s.

Islamic commercial banks accounted for 75% of the assets and investment banks, 13%. The balance is made up by Sukuk issues.

Emerging centers of expertise :

Bahrain, Dubai/UAE and Kuala Lumpur have strong historical positions and future ambitions as centers for Islamic financial services. Riyadh, Qatar, and Singapore also have aspirations to become centers for Islamic finance. London is positioning itself as the gateway to Islamic finance in Western Europe. The market is currently most developed in Malaysia, Iran and the majority of countries that form the Gulf Co-operation Council (GCC). However, Islamic finance is moving beyond its historic boundaries in these countries into new territories both within and outside the Arab world. Initiatives are on to develop Islamic finance in the UK. The UK, in 9th place, is the leading Western country with $10billion of reported assets, largely based on HSBC Amanah.

Key future markets include:

• Arab countries such as Egypt, Turkey, Lebanon and Syria.
• Asian countries such as Indonesia, which has the largest indigenous Muslim population in the world, and China.
• Western countries in Europe and North America. Countries such as the US, France, Germany and the UK each have indigenous Muslim populations of between one and five million. Moreover, the customer base in Western countries is not necessarily restricted to Muslims, other customers may be attracted by the ethical and environmental basis of Islamic finance.
• Malaysia and Pakistan have over 15 banks supplying Islamic financial services; Kuwait, Bahrain each have 17; Iran, Saudi Arabia and Bangladesh each have around 10.
• Market share of Islamic banks in Malaysia and the Gulf Cooperation Council (GCC) is rising. Within the GCC, Kuwait and Saudi Arabia are the countries in which Islamic banks’ market share is highest and has grown the fastest.
• London has been providing Islamic financial services for 30 years, although only recently this service has begun to receive greater profile.

Success and difficulties in implementation:

• Islamic banks are evolving financial and investment instruments that are not only profitable but also ethically motivated. The boom in Islamic banking has several reasons, on one hand the industry is young so the growth is natural on the other hand it depends on credit crises.
• Volatile interest rates, high bank fees and foreclosure in payment defaults make people unhappy of traditional banking system.
• Islamic banks or banks that offer Islamic banking units, have a market that holds half of oil reserves and whose citizens have an estimated $ 1.5 trillion in private wealth.

• With great inclusion of muslim youths in the financial sector they can contribute in a better way and Islamic banking can help counter terrorism. One of the main reasons of terrorism is poverty and Islamic banking can alleviate the condition.
• Islamic banking, because of its value- oriented ethos enables it to draw finances from both Muslims and non-Muslims alike.

• Islamic banks are popular especially among young Muslims. Internationally Islamic banks appear more resilient to economic turndown and international financial crisis than conventional banks. Islamic finance involves regulatory framework that accommodates financial principles and clear willingness of the government to promote Islamic finance. It also generates employment opportunities at a large scale.

Challenges in development of Islamic Finance :

Despite all the progress Islamic banks have a long way to go. To keep a sustainable growth track, they must address some critical issues involved.

• One key challenge arises from the varying interpretations of Shariah across regions, countries and sometimes even within the same country. What constitutes an Islamic practice is determined by a bank’s Shariah Council, an independent bank-appointed panel of scholars. Therefore, what is considered Islamic in Malaysia maybe Haraam or prohibited in Saudi Arabia. These absences of uniform standards affect the bank’s ability to replicate and implement Islamic products across geographies, attract external investors and expand to near markets. The Council must approve all innovative products but, without a uniform interpretation, it is difficult for the banks to know whether the committee will give its nod for a particular region or country.
• Another challenge is of the regulatory frameworks governing these banks. These frameworks are often at variants leading to operational road-blocks. This is further compounded by absence of accounting, auditing, and credit analysis standards for Islamic banks. Not only must they satisfy the Shariah but also need to measure up to national policies.
• To operate in globalised economy these banks must also meet international requirements. Being part of International Banking Committee also means following corporate governance requirements which have not been designed for Islamic business model.
• Another cornerstone of global banking is financial risk management which is underdeveloped in Islamic banks since many such instruments are unacceptable under Shariah.
• The sector also faces IT related challenges due to systematic complexities of this market because core banking solutions are not perfectly tailored for Islamic markets.

Controversy related to Islamic Finance :

In Islamabad, Pakistan on June 16, 2004, members of leading Islamist political party in Pakistan, the Muttahida-Majlis-e-Amal (MMA) party, staged a protest walkout from the National Assembly of Pakistan against remarks by a minority member on interest banking. He was of the opinion that, without interest the country could not get foreign loans and could not achieve the desired progress. Later, the opposition members responded to the minority member’s remarks by saying that the Council of Islamic ideology had decreed that interest in all its forms was Haraam in an Islamic society. Hence, he said, no member had the right to negate this settled issue.

Current status in India:

India being one of the countries which has not accepted the law relating to Islamic Banking is now introducing proposition for establishing the first ever Islamic bank in Cochin, Kerala.

However, a year ago, the RBI was asked by the government to look into the matter. The members of the committee submitted their recommendations few months ago, but the regulator, perhaps held back by obvious sensitivities, has not yet put the findings in public domain.

While the final form of report is not known, sources said the members have pointed out how Indian banking laws come in the way of various Islamic banking principles.

These are as follows: Al Wadiah (for Saving Bank Account):

• Section 21 of the Banking Regulation Act requires payment of interest on such deposits; thus, interest-free deposit and simple charging of premium or Hiba is not permissible.
• Mudarabah (for term deposit or investment): Here again, Section 21 of the BR Act disallows such products where the bank can invest the money in equity funds (in India, equity exposure is determined by a separate set of rules), and the client has complete freedom in the management.
• Mudarabah, Musharakah (for project finance and SME credit): Sections 5, 6 of the BR Act indicate the forms of business a banking company can undertake and does not allow any kind of profit-sharing and partnership contract, the basis of Islamic Banking.
• Ijirar (for home finance) : as against Islamic Banking where the banks owns the asset and hold the title, Section 9 of the BR Act prevents the bank from any sort of immovable property other than private use.
• Istisna (leasing, buyback): Besides the usual curbs on acquiring immovable property offering Islamic banking products many not be bankable due to stamp duty, central sales tax and state tax laws that will apply depending on the nature of the transfer. In the markets like the UK there is separate law that makes it possible to launch Islamic banking products. The BR Act even disallows an Indian bank from floating a subsidiary abroad to launch such products, or offering these through a special window. Thus, the upshot of the findings is that such banking experiment is impossible without a new law and multiple amendments to the BR Act thereof.

Though the RBI study group had earlier rejected the concept of Islamic banking it was given a green signal by the Raghuram Rajan Committee on banking reforms. A report prepared by Ernst and Young was approved by the Kerala industries on August 12, 2009. Its likely that the registration formalities will be completed and the bank will be operational in 2010. Kerala State Industrial Development Corporation, which is the designated agency for the formation of the bank, will have 11% stake in the proposed banking company. According to the government officials it will be registered as a non banking finance company in the beginning and later get transformed into a full fledged Shariah-Compaliant bank. However the biggest challenge before the Kerala-based bank will be the formation of a Shariah Supervisory Board, including independent scholars on Shariah and banking business, in order to monitor the activities of the bank.

The islamically based system of finance has proven itself to be entirely feasible and sound. There are many benefits to the development of full-fledged Islamic banks in India which include a potential bettering of the condition of India’s largest minority and better integration of that minority into secular-democratic India. This would also enhance savings across the country and an increase in the national GDP growth rate. Reform, by opening to Islamic banks would be beneficial for all entrepreneurs who have profitable proposals but lack collateral. Increased political involvement, decreased inequality, business ownership and wealth will all serve towards the growth of our economy. All Indians will benefit from the increase in the GDP, the decrease in welfare expenditure, an increase in tax revenues, creation of new savings, employment opportunities and mobilization of savings. The increased growth would be the outcome of efficient investment allocation provided by Islamic banks.

Conclusion:

The benefits to India of opening itself to full-fledged Islamic banks are significant and numerous enough that the opportunity cannot be easily neglected. India’s banking sector should be reformed so as to allow and encourage Islamic banks to enter the market place. Islamic banks are on the thresh hold of historic opportunity. Oil prices are rising; banks are flush with funds and are driving growth on the back of strong recent performances.

The interpretation of fundamentals of Islamic financial principles and emergence of clear standard and a common framework will help bring about improved management practices at Islamic banks resulting in higher growth and profit margins.

The majorities of Islamic banking clients are found in the Gulf States and developed countries. With 60% of Muslims living in poverty, Islamic banking is of little benefit to the general population. The majority of financial institutions that offer Islamic banking services are owned by Non-Muslims. With Muslims working within these organizations, employed in the marketing of these services, having little input into the actual day to day management, the veracity of these institutions and their services are viewed with suspicion. One Malaysian Bank offering Islamic based investment funds was found to have the majority of these funds invested in the gaming industry; the managers administering these funds were non Muslim. These types of stories contribute to the general impression within the population that Islamic banking is simply another means for banks to increase profits through growth of deposits and that only the rich derive benefits from implementation of Islamic Banking principles. The sensitive secular fabric of India can hinder the full-fledged implementation of Islamic finance and can create a controversy on the term “Islamic Banking” itself. As the term refers to the form of banking as Islamic, a reserved impression is cast and not many non Muslims would prefer to opt for it. However if a rational approach is adopted by all without letting the secular aspect affect the banking scenario it will prove to be futile towards higher GDP and betterment of the entire economy.

With around 11% of the Indian population being Muslims, Islamic banking may find enough takers. But given the tedious route for new legislations, it may take a long time to happen. It can prove to be a conducive idea and the government of India can grow one step closer to development of the economy by way of making amendments in the current banking system and adopting Islamic banking.

Prior to acquisition of intellectual property through a merger or acquisition, a due diligence must be performed to ascertain the validity of the assets, their value, ownership and rights over them, adequacy of protection available etc.[3] In this context confidentiality agreements, license agreements, joint venture agreements, agreements confirming payment of maintenance fees and taxes etc are useful.[4] They help the transferee/takeover company to determine by how much the concerned IP assets add to the value of the target company’s assets. Here it is relevant to note that due to their intangible nature, it is sometimes difficult to value IP assets especially in fields where technology and products are constantly and rapidly evolving.[5]

In addition, warranties given by the transferor/target company regarding the IP assets listed, absence of liens or encumbrances therein, non-infringment on third party rights, absence of litigation, etc are necessary as they enable the transferee/takeover company to claim breach of contract and relief after the merger/acquisition has taken place in case they turn out to be incorrect.[6] All these give an idea of the strengths and liabilities of the transferee/target company or specfic IP assets belonging to it, which influences the decision of the transferee/takeover company regarding a merger or acquisition.

Another important issue regarding IP assets is the question of how far employment agreements drawn up protect the rights of the transferee/takeover company over intellectual property created by its employees in the course of their employment. For instance, in case of copyright it is necessary to ascertain whether or not the contract signed was one of ‘work for hire’ enabling the company to be deemed by statute as the author so that it has copyright over the work created. Similarly, when the transferor/target company’s disclosures include inventions that have not yet been patented or assigned, the inventor’s obligations to assign must be ascertained. It is important that all listed inventors have assigned to the target company so that there is no gap in the chain of title.[7]

Once these issues have been settled and a decision is made to acquire the IP assets, this may be done through purchase of specific IP assets used by the transferor/target company in its business, or by purchasing stock in a company having IP among other assets. It is relevant to note here that in case of acquisition by purchase of IP assets, the transfer agreement need not specifically mention the right in these assets as these are presumed to have been acquired through such sale. But when acquisition is through purchase of stock, it should be noted that the takeover company does not acquire rights over the target company’s IP assets which are presumed to remain with the acquired company unless otherwise specified. Therefore an express written agreement may be needed to obtain effective ownership and control over them.[8]

Moreover, the target company may not have rights over all aspects of intellectual property used by it, such as when it has obtained a license to make use of intellectual property belonging to a third party. In such cases, if the licensee desires to assign its rights to an acquiring company, it may have to obtain the licensor’s consent to such transfer. Even when such consent is not required, it has to give notice to the licensor of the proposed transfer.

Post the merger/acquisition, the relevant IP assets have to be recorded as belonging to the transferee/takeover company in all jurisdictions where they exist for the company to be conferred with valid rights of ownership and use under law. Otherwise there may be confusion regarding ownership and the company may lose its newly acquired rights to the asset(s). This is especially possible with regard to well-known marks that are extensively used so that they no longer act as an indicator of origin. In such a situation the company may not be able to avail of certain reliefs like enforcement of IP protection, prosecution of infringments and damages thereon, injunction orders etc. A failure to record the change in ownership can also lead to loss of royalties and affect the acquiring company’s rights to engage in further transactions.[9]

One last issue to be noted in this regard is that the status and extent of protection given to IP often varies from one country to another depending on their level of economic and technological development. Difference may be with regard to the ease with which property rights may be established by the transferor company, the duration of time for which these rights exist and extent to which they are enforceable, remedies available in case of infringement etc. These have to be taken into account in case of international mergers and acquisitions.

A humble endeavor has been made to bring to the fore the importance of negative voting in a democratic country. The development of the voting rights and the position of negative voting in other countries are also discussed. Arguments both in favour and against the right of negative voting are talked about.

Pressing the button of ballot machine is not just the pressing of a button but it is the expression of intelligence, sensitivity and understandings, which is fundamental for democracy to subsist.

INTRODUCTION

The preamble to the Constitution of India proclaims India as a democratic republic. India is a constitutional democracy with a parliamentary system of government, and at the heart of the system is a commitment to hold regular, free and fair elections. These elections determine the composition of the government, the membership to the two houses of parliament, the legislative assemblies of the state and union territories. Thus the concept of democracy as visualized by the Constitution presupposes the representation of people in Parliament and state legislatures by means of election.<!–[if !supportFootnotes]–>[1]<!–[endif]–>

For democracy to survive, it is essential that the best available men should be chosen as people’s representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote, obtained on their own merit and not by the negative vote of process of elimination based on comparative demerits. But what if no candidates of ‘attractive merit and established characters’ comes to the election? Will the voters still have to select the lesser of two evils? Will they still have to pick from a slate of unworthy candidates in today’s world of choice? So, there is a yell for negative voting. No doubt, the right of recall is a blue-chip mechanism, but that comes into effect only when an elected candidate misuses his office. However if at the very outset all the candidates are ones, which the constituency deems undesirable, should not the sovereignty of voters, the nitty-gritty of a democratic election, require a mechanism to cast off those candidates out at the very threshold? The mechanism of negative voting, thus, serves a very fundamental and essential part of a vibrant democracy.

DEVELOPMENT OF VOTING RIGHTS

There has been constant growth of voting rights in India, as well as in other countries of the world. Ancient Greece had one of the earliest forms of democracy, since at least 508 BC. They had the system of negative election, where the voters were asked to cast a vote for the politician they wanted to exile for ten years. Voting rights in ancient Greece were only for male landowners, so the number of voters was pocket-sized. In the 13th century, the Venetian state was built up and they elected a Great Council of 40 members by introducing “approval voting”, where electors cast one vote for every candidate they find acceptable.

American history is a history of thriving voting rights. At first, only white males over the age of 21 were allowed to vote. But later there came some of the Copernican changes like black suffrage, women suffrage, adult suffrage etc.

A situation, where the right to vote is not restricted by race, gender, belief, wealth or social status, is termed as “Universal suffrage”. Corsican Republic was the first country to grant limited universal suffrage for all inhabitants over the age of 25 and which was followed by Paris Commune, the island republics of Tavolara, Franceville, New Zealand and then Finland. The 13th, 14th, and 15th Amendments to the U.S. Constitution extended voting rights to former slaves and the 19th Amendment gave voting right to women in 1920. Women still lacked this right in Switzerland until the 1970s and in Kuwait until 1990. The 26th Amendment, which was adopted on July 1, 1971, lowered the voting age from 21 to 18. The Constitution of India adopted universal adult suffrage as the basic tenet of elections. Except people of unsound mind, and people convicted of certain criminal offences, the voting right is guaranteed irrespective of caste, creed, religion or gender. It is not that voting was something new to this country. In ancient India there were provisions for elections and vote. A vote was known as ‘chhanda’ which literally means a ‘wish’. This expressive term was used to convey the idea that voting is expression of one’s free will and choice.

“Right to vote” is not a fundamental right but merely a statutory right. Suggestions have been made to make voting mandatory. But if the electors decide that none of the candidates is worth their vote, what is the way out? Some NGOs wanted the option of “negative voting” by providing an extra button in the electronic voting machines that says “none of the above” clause. There is a provision in Section 49-O of the Conduct of Election Rules, 1961 that an elector whose roll number has been entered in the register of electoral rolls in Form 17A, if decides not to vote, a remark to this effect shall be made against the said entry by the Presiding Officer and the signature and thumb impression of the elector shall be obtained against such remark.<!–[if !supportFootnotes]–>[2]<!–[endif]–> But this is of no use as it is not only cumbersome but also violates the right to secrecy while casting vote. So, a necessity is felt for negative voting to have absolute freedom while expressing ones’ choice.

Under the present law, there is no scope for a voter to refuse to vote for a particular candidate or to cast his vote against all candidates. This is different from a voter refusing to exercise his franchise at all. In a writ petition filed in the Supreme Court by People’s Union for Civil Liberties (here after referred as PUCL), it is submitted that a citizen’s right to vote at an election in secrecy includes the right of negative voting qua all candidates.<!–[if !supportFootnotes]–>[3]<!–[endif]–> The Election Commission’s stand was that if the electors had the right to know the assets and antecedents of candidates and then make their choice, there was no rationale to bar the right of negative voting. Indeed, counsel for the Commission, Meenakshi Arora submitted before the Supreme Court that the PUCL could seek directions for appropriate modification in the EVMs to enable the electors to exercise their right of negative voting.

A Bench of Justices B.N. Agrawal and G. S. Singhvi referred the case to Chief Justice K.G. Balakrishnan, for appropriate order. The issue needed to be adjudicated by a larger bench as there were certain ‘doubts’ over the interpretation of the ruling in the case of Kuldip Nayar vs. Union of India<!–[if !supportFootnotes]–>[4]<!–[endif]–> relating to a voter’s right. The court while rejecting an argument that the right to vote is a constitutional right had observed that there is a distinction between the right to vote and the freedom of voting as a species of freedom of expression. They further said that a right to elect, is fundamental to democracy, but is neither a fundamental right nor a common law right but simply a statutory right. In the case of Union of India vs. Association for Democratic Reforms<!–[if !supportFootnotes]–>[5]<!–[endif]–>, the apex court said that Article 324 is a reservoir of power to act for the avowed purpose of not divorced from, pushing forward a free and fair election with expedition…” Justice Singhvi, referred to an earlier verdict and said, “The concomitant of the right to vote which is the basic postulate of democracy is two-fold: first, formulation of opinion about the candidates and second, the expression of choice by casting the vote in favour of the preferred candidate at the polling booth.”

Section 49(O) of the Conduct of Election Rules, 1961 violates the Constitutional provisions guaranteed under Article 19 (1) (a), Article 21 and the concept of secret ballot.<!–[if !supportFootnotes]–>[6]<!–[endif]–> Moreover the Universal Declaration of Human Rights<!–[if !supportFootnotes]–>[7]<!–[endif]–> mandates that suffrage shall be held by secret vote or by equivalent free voting procedures. To similar effect is the mandate of Rule 49-M of the Conduct of Election Rules Act, 1961, which requires the maintenance of secrecy in voting and Section 128 of the Representation of People’s Act, 1951, which requires maintenance of secrecy in voting by every officer on duty. Thus there is a need for right of negative voting. So, the Election Commission should provide one extra button in the electronic voting machine, which will enable the voter to exercise his right, in secrecy and will also convey a memorandum of anger of the voter to the political mentors.

NEGATIVE VOTING IN OTHER COUNTRIES

Negative voting does exist in other countries but not the same expression is in use. Many countries have the option of “None of the above” on ballots, as a standard modus operandi. The U.S. state of Nevada has the option “None of these candidates”, Ukraine has “Against all”, France has “vote blanc”, Spain and Colombia has “voto en blanco”. Russia had “Against all”, which was abolished in 2006. In 2006, Massachusetts included “None of the above” as an option.<!–[if !supportFootnotes]–>[8]<!–[endif]–> Negative voting legislation has been introduced in Wyoming, Colorado, Michigan, Ohio, Pennsylvania, and Arizona, but has not come near passing anywhere yet.<!–[if !supportFootnotes]–>[9]<!–[endif]–> Negative votes give citizens a veto in the real sense of the term. They can veto all the candidates presented to them and demand a new election with better candidates. Negative voting could help in checking criminalize cum communal and castism cum class politics.

ARGUMENTS FOR NEGATIVE VOTING

We have accomplished a stage in human civilization, where we really feel the need of Negative Voting as indispensable “right” in order to resolve the dilemma of political nihilism and effective political participation in the present state of democratic system. When voters feel disgusted at the nomination of undesirable candidates, they just could not able to convey their message of non-cooperation. On the other hand giving people this choice of negative voting would give them a reason to go to the polls even though they don’t like any of the candidates. It assures one, secrecy and encourages him to exercise his right, which will send a knockout message to the conceited politicians. This will also enhance the participation of urban, educated and rich people. Legislation needs to be enacted to provide that if negative votes gets highest vote, the election will be countermanded and a fresh election will be ordered. This change will be a warning to the political parties that decision about the choice of candidate is not the sole prerogative of a clique within the party. It must involve the voters at the very stage of selection and the candidate will not be a dumb helpless spectator. This provision exists in other countries; so, why can’t, in India. It is agreed election in India is too expensive. But in the name of expenses or any other excuses, the State cannot deny this right to the people.

With conventional ballot papers, a voter could drop a blank sheet or stamp wrong to cancel or nullify the vote. That was an indicator of the voter’s disillusionment with the choice given. But the EVM has no such option. An elector can refuse to vote after being identified only but that defeats the purpose of a secret ballot. A negative vote takes the matter a step further by ensuring that a voter can choose ‘none of the above’ secretly.

Secondly, negative voting will curtail the significance and role played by caste and religious factor in the electoral process. There is hardly any constituency in the country, where any particular caste can command more than 50% of the votes. This means that a candidate has to carry with him several castes and communities, to succeed. Now the parties will try to fight on ideologies and programmes rather than on caste or religious vote banks. It is the best measures to make our electoral system more representative, fair and transparent, to strengthen our democracy, to arrest and reverse the process of proliferation and splintering of political parties and to introduce stability in our governance.

No doubt this method calls for a run-off and a fresh election in case no candidate obtains 50% or more votes even in the run-off, and in that sense expensive and elaborate, yet it has the merit. It will forward good candidates and eschew bad characters and corrupt elements.

There can be no dispute that the idea and its underlying object are both laudable. Besides, the advantages pointed out, this method of election also acts as a powerful disincentive against voter intimidation.

ARGUMENTS AGAINST NEGATIVE VOTING

The counter arguments are also inviolable and logical. In our country there are eight National parties, around 50 State parties, and more than 400 registered parties. So, the confusion among the voters is obvious. When majority of the voters are not even aware of these parties, their representatives and their objectives, it will be an erroneous idea to talk about negative voting. When a large number of voters of this country are uneducated, illiterate, and when the government is still struggling to encourage its citizens to at least vote, negative voting as a right may not help.

The elections to Lok Sabha or for that matter Legislative Assemblies in bigger States are not held on one single date. Elaborate arrangements have to be made to establish polling booths, to requisition, allocate and transport the personnel to man the polling booths, and the transport and stationing of police and other paramilitary forces and so on. Because of these factors and considerations, elections are held on two or more dates. In this stage it is unwise to talk about Negative Voting because it adds up visibly the protest vote on the ballot-an expression of public “no confidence”-and if it exceeds that received by the candidates, the elections are nullified and new elections with new candidates is ordered.<!–[if !supportFootnotes]–>[10]<!–[endif]–>

Moreover democracy involves selection from available choices. In this context, it could be argued that ‘vote for none of the above’ is a negation of the democratic principle. The notion of ‘negative voting’ is being highly contested. There are arguments both in favor and against this notion. Nonetheless, it is agreed to the core that the voters of this country should be given negative voting as a right. It is because not providing the same will be amounted to negation of constitutionalism and opposed to the most cherished provisions of the Constitution. Often, an Indian voter is faced with the choice between a crook and a criminal, which is no choice at all. Article 19 guarantees all individuals the right to speak, criticize, and disagree on a particular issue. It stands on the spirit of tolerance and allows people to have diverse views, ideas and ideologies. Not allowing a person to cast vote negatively is against the principles of upholding the dignity of the human personality and defeats the freedom of expression provision and the right ensured in Article 21 i.e. the right liberty. It is also against the equality clause of Article 14 of the Constitution.

Our politicians take great pride in calling India as the largest surviving democracy but the same pride is however missing in the elections. Bhagwati, J., has opined “Democracy is based essentially on free debate and open discussion, for that is the only corrective of Government action in a democratic setup. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice…”<!–[if !supportFootnotes]–>[11]<!–[endif]–> The concept of negative voting has also been discussed and recommended for consideration by the Law Commission. In every democracy, the process of election should be free, fair and equitable. Our Constitution and the Representation of the People Act, seek to provide for a free and fair election. Moreover negative voting is a step towards fair election.

CONCLUSION

All legitimate consent requires the ability to withhold it. This right gives the voter the option to withhold consent, just as voters can cast a “No” vote on a ballot question. Negative voting is a claim, having “duty” as jural correlatives in Hohfeldian sense, which allows, the voters to reject all the candidates that are in the fray. Right to vote must be liberally construed like Article 19 (1) (a) because Negative voting acts purely as a repository for protest votes, by which citizens who want change can mobilize an anonymous protest candidacy around agendas that are regularly ignored by the established politicians.

Under the Court’s current stand and legislature’s jurisprudence, there is no clear answer to the question, whether the voter’s can have something called “right of negative voting” or not. But nevertheless it is essential.

People should not waste their vote for lack of good choice by voting compulsorily for a candidate, as there exists’ no option. Thus a mechanism is required to register the protest and bring electoral reforms. Let the voters decide the fate of the political parties’ choices, instead of the parties deciding the voters’ choices.

<!–[if !supportFootnotes]–>

Arbitration is the means by which parties to a dispute get the same settled through the intervention of a third person, but without having recourse to a Court of Law. This is however, more of a fiction now, than actual court procedure now. A court may have to interfere, or parties, may approach the Court, from the very initial stages of arbitration, and yet it will be arbitration all the same.^{<!–[if !supportFootnotes]–>[2]<!–[endif]–>}

When two persons agree to have their differences settled through arbitration what they really mean is that the actual decision of the dispute will rest with a third person called an arbitrator, through Court may have to intervene to regulate arbitration proceedings, or, to give the award of the arbitrator a sanction of law. The law of arbitration is based upon the principle of withdrawing the dispute from the ordinary courts and enabling the parties to substitute a domestic tribunal.^{<!–[if !supportFootnotes]–>[3]<!–[endif]–>} Halsbury defines arbitration as “ the reference of dispute or difference between not less than two parties, for determination, after hearing both sides in a judicial manner, by a person or persons other than a Court if competent jurisdiction.”

The parties must intend to make a submission to arbitration, i.e., there must be animus arbitrandi.^{<!–[if !supportFootnotes]–>[4]<!–[endif]–>} The parties must agree that the decision of the arbitrator would be binding upon both of them. If it is binding only on one of them, it would not be a reference to arbitration.^{<!–[if !supportFootnotes]–>[5]<!–[endif]–>}

ONGC v. Saw Pipes

In Oil & Natural Gas Corporation Ltd v. Saw Pipes Ltd.<!–[if !supportFootnotes]–>[6]<!–[endif]–>, the primary question considered by the court was the scope and ambit of the courts powers vis-a-vis Section 34. The court considered whether the power to set aside as award that was patently illegal reposed with the court as per Section 34. It was argued that the Parliament has not made much change while adopting Article 34 of UNCITRAL Model law. By not providing error of law as a ground of challenge to the arbitral award under Section 34 of the Act is has not intended to give a wider jurisdiction to the courts.

The Supreme Court considered Section 28(1) (a) which states that the arbitral tribunal is required to make the award in keeping with the substantive law for the time being in force in India. This is inclusive of the provisions of the Arbitration and Conciliation Act as well. The Supreme Court stated that the legislative intent could not be that an award, despite being in contravention of the Act should be allowed to stand. If the arbitral tribunal has not followed the mandatory procedure prescribed under the Act, it would mean that it has acted beyond its jurisdiction and thereby the award would be patently illegal which could be set aside under Section 34. The court held:

” …the jurisdiction’ or the power of the arbitral tribunal is prescribed under the Act and if the award is de hors the said provisions, it would be, on the face of it, illegal. The decision of the Tribunal must be within the bounds to its jurisdiction conferred under the Act or the contract. In exercising jurisdiction, the arbitral tribunal cannot act in breach of some provision of substantive law or the provisions of the Act.”

This statement necessarily has. grave implications on the interpretation of Section 34(2)(a)(v). The Supreme Court in the ONGC case also acknowledged that Section 34(2)(a)(v) dealt with the setting aside of an award if the arbitral procedure or the Composition of the tribunal was not in accordance with the parties agreement or in the absence of an agreement, Part I of the Act comprising of Sections 2 to 43. Interestingly, the court observed that the parties’ agreement must· not be in contravention of the provision of Part I. This was in stark contrast to the Apex court’s observations in Narayan Prasad Lohia v. Nikunj Kumar Lohia<!–[if !supportFootnotes]–>[7]<!–[endif]–> wherein it was held that if a award was in accordance with the agreement of the parties, it may not be set aside by the court. But as per the ONGC case, t he award must be in accordance with the agreement of the parties and the agreement of the parties must lie within the parameters prescribed by the non-derogable provisions of Part I. If the award does not meet the said criteria, it may be set aside, via Section 34(2)(a)(v) read with Section 28( 1)(a). The second approach employed by the court was to attempt to capture the meaning of ‘public policy’ under Section 34(2)(b)(ii) and read a patently illegal award as antithetical to the interests of ‘public policy’. The court held, inter alia, that Public Policy is not defined under the Arbitration Act, The Contract Act or the Constitution but must be understood in the light of all three. The court reiterated that public policy is not the policy of a particular government but is a policy in keeping with public interest. public good and the public conscience. It is a concept that must not be accorded a static meaning. In. fact the term is capable of modification and expansion. Further, the explanation to section 34(2)(b)(ii) reads ‘without prejudice to the generality of sub-clause (ii)’ implying that policy is not a concept limited to the above examples but inclusive of them. Therefore the ground of public policy that has been provided for is .very wide in scope and ambit. The court. specitically considered Rel1usagar Power Co. Ltd v. General Electric C.<!–[if !supportFootnotes]–>[8]<!–[endif]–>, and added to the principles laid down therein stating that an award may be set aside if it is contrary to:

] . Fundamental policy of Indian law; or

2. The interest of India; or

3. Justice or morality: or

4. If it is patently illegal.

The need for ‘error of law’ as a ground for setting aside the arbitral award, as is present in Section 68 of t he English Arbitration Act, ]996 has oft been expressed. Thus it may be observed that the Supreme Court has exerted itself to provide wide grounds of challenge under the broad head of public policy.

Some Further Implications of the ONGC Decision

It may also be observed that Section 34 does not provide ‘misconduct of the arbitrator’ as one of the grounds for recourse. Indeed this ground is not made available under the UNCITRAL Model Arbitration Law. Under the English Arbitration Act, 1996, misconduct of the arbitrator is a ground for challenge and section 67 and 68 of the English Act do not correspond exactly with the UNCITAL Model Law. Under the Indian enactment of 1940, section 30 included misconduct of the arbitrator as a ground for recourse. However, since the ONGC case, under the head of ‘public policy’ the court has deemed itself to have the power to cure any injustice. Therefore wherever the principles of natural justice have not been followed, the court may redress this by setting aside the arbitral award.

More specifically, Section 12(4) read with Section 13(3) indicates that the appointment of an arbitrator may be challenged on the grounds of doubt as to independence of the arbitrator or impartiality of the arbitrator in the course of the arbitral proceeding itself Section 13(4) states that if the challenge is unsuccessful, the arbitral proceedings shall continue. Section 13(5) provides that any award made under these circumstances may be challenged by the party and an application for setting aside of the award may be made in consonance with the provisions of section 34 Section 34(2)(a)(v) can be read to include a challenge on the above grounds. In the ONGC case the Apex Court validated Section 13(5) and Section 16(6) as legitimate grounds of challenge under Section 34 of the Act. The old act which provided for recourse in a situation where the arbitrator misconducted himself or the award was broadly construed. Reading Section 34 in the light of the ONGC case it is evident that though this ground for setting aside an award under the 1996 Act is not expressly stated, the interpretation of the judiciary enhances the scope of the Section. So as to possibly include it as a ground for recourse. Therefore. the position in law would seem to be that misconduct of the arbitrator may be read into the section and would be a sufficient ground for setting aside an award

Object of the Section

Section 34 of the Act is based on Article 34 of the UNCITRAL Model Law and the scope of setting aside the award is far less the same as under section 30 or section 33 of the Arbitration Act, 1940.^{<!–[if !supportFootnotes]–>[9]<!–[endif]–>}An arbitral award can be set aside only if any of the five grounds as contained in section 34(2)(a) or any of the two grounds as contained in section 34(2)(b) of the Act exist.^{<!–[if !supportFootnotes]–>[10]<!–[endif]–>} If a party fails to establish his case within the four corners of this section, the award cannot be set aside.^{<!–[if !supportFootnotes]–>[11]<!–[endif]–>}

The object of the section is to avoid delay and to require the parties to bring the disputes for the decision of the court in the form of petition. Remedy by way of a regular suit is intended to be excluded.^{<!–[if !supportFootnotes]–>[12]<!–[endif]–>}

Section 34 has shrunken the grounds and limited the scope for challenging the award to such an extent that the recourse to a court against an award is pen only in the following eventualities:^{<!–[if !supportFootnotes]–>[13]<!–[endif]–>}

i) if the part challenging the award furnishes proof that he was under some incapacity;

ii) that the agreement was not valid under the law;

iii) that he was not given a proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case;

iv) that the award deals with a dispute not referred to or not falling within the terms of the agreement;

v) if the award contains decisions on matters beyond the scope of submission to arbitration only when of the deciosns on matters submitted to arbitration can be separated from those not to be submitted and in that case only the severable part is liable to be set aside;

vi) if the composition of the arbitral tribunal or the procedure was not in accordance with the agreement of the parties;

vii) of the subject matter of the dispute is found, in the opinion of the court, not capable of settlement under the law; and

viii) of the award is in conflict with the public policy of India.

The legal proceedings which might be stayed under this section must be a proceeding independently of arbitration. If the legal proceeding is itself under the Arbitration Act and relates to the appointment of an arbitrator, sole arbitrator or umpire or such other matter, there can be no stay under this section.<!–[if !supportFootnotes]–>[14]<!–[endif]–>

In order that the proceedings in the suit may be stayed, there must be an existing dispute by and between the parties. If there is no dispute, there is nothing to arbitrate upon.<!–[if !supportFootnotes]–>[15]<!–[endif]–>

Matters within the Jurisdiction of the Court

When a court is called upon to decide the objections raised by a arty against an arbitration award, the jurisdiction of the court is limited as expressly indicated in the Act, an it has no jurisdiction to sit in appeal and examine the correctness of the award on merits.^{<!–[if !supportFootnotes]–>[16]<!–[endif]–>}

An award can be set aside only in the following three contingencies:

i) Composition of arbitral tribunal was not in accordance with the agreement;

ii) the arbitral procedure was not in accordance with the agreement between te parties;

iii) in the absence of such an agreement, the composition of arbitral tribunal or arbitration procedure was not in accordance with Part I of the Act.^{<!–[if !supportFootnotes]–>[17]<!–[endif]–>}

Object of the Act

The Arbitration and Conciliation Act, 1996 was brought into existence mainly to achieve the following objectives:

i) to make provision for an arbitral procedure which is fair, efficient and capable if meeting the needs of specific arbitration;

ii) to provide that the arbitral tribunal gives reasons for its award;

iii) to ensure that the arbitral tribunal remains within the limits if its jurisdiction;

iv) to minimise the supervisory role of courts in arbitral process;

v) to provide that every final arbitral award is enforced in the same manner as if it were a decree of the court.^{<!–[if !supportFootnotes]–>[18]<!–[endif]–>}

The object of the Act is expedition. This object would be defeated of the disputes remain pending in courts for months and years before even commencement of arbitration. For expeditous disposal of case, it is imperative that arbitration cases should be decided on the basis of affidavits and other relevant documents and without oral evidence. There may, however be a few exceptional cases where it may become necessary to grant opportunity to the parties to lead oral evidence. In both circumstances, the judicial authority is required to decide the issue expeditiously within a time frame and not to treat such matters like regular civil suits.^{<!–[if !supportFootnotes]–>[19]<!–[endif]–>}

Section 5 of the Act, 1996 provides for the extent of judicial intervention which says that “notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part”. The word “Part” referred to in this Section is Part I of the Act, 1996 which shall apply were the place of arbitration is in India (Section 2(2)) and shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration (Section 2(3). Therefore, the judicial intervention has been restricted and minimised. Under Section 5, the words used are “Judicial Authority” which is a wider term than the word “Court” and judicial authority includes all such authorities/agencies conferred with the judicial powers of the Government. The judicial authority’s intervention under the Act, 1996 is limited to the purposes as prescribed by the Act, itself. The Act, 1996 provides for intervention or assistance of the judicial authority in respect of several matters.

Conclusion

The judiciary has through the decision in the ONGC case demonstrated its unwillingness to take a back seat and play the limited role in arbitration matters envisaged for it by the Model UNCITRAL Law. From the above observations the logical conclusion follows that though the structure and language of Section 34 of the 1996 Act is far removed from that of Section 30 of the 1940 Act, judicial interpretation has, in essence, diluted the differences between the two: the extent of this dilution will only become apparent by observing and analyzing the next few judicial decisions in this area which will be crucial.

The concept of “independent directors” is new to India; it was first brought to India by the 1999 Kumar Mangalam Birla committee on corporate governance. Three years later the Naresh Chandra committee gave governance more thought. Finally, in 2004 the Narayanmurthy committee affected changes to clause 49 of the listing agreement. As it stands today, the existing company law has no mention of independent directors. They can’t magically prohibit the scams from happening in a company; the very purpose behind appointing independent directors is to put checks and balances on each and every activity of the company and bring independence, impartiality and wide experience. It has been decided in Central Government Vs. Sterling Holiday Resorts (India) Ltd. and Ors. that “the Board of directors should be strengthened by appointing independent directors².”    

Clause 49 of SEBI’s listing agreement mandated the appointment of independent directors in the board of directors. Clause I, sub clause (ii) of annexure-1 of clause 49 mandates that “where the chairman of the board is a non-executive director, at least 1/3^rd of the board, should comprise of independent directors and in case the chairman of the board is an executive director at least ½ of the board should comprise of independent directors³. There is no provision for their selection process, independence; there is ambiguity in law about the qualifications of an independent director in the present company bill. At present we needs laws which precisely define the roles, qualifications, functions, duties, responsibilities of an independent director. 

In this paper I dealt with two issues:

•  
  1. Role and responsibility of an independent director
  2. procedure for selection of an independent director

The benefits of the presence of independent directors on the board of companies has been immensely fruitful but we need to strengthen the institution of independent directors so that they can actually play an effective role, not expected from them in the past. 

WHO IS AN INDEPENDENT DIRECTOR:-

As per the definition of independent director in the code of Corporate Governance, an independent director should not have any pecuniary relations or transactions with the company or its promoters; his decisions should be independent of those who have controlling stake in a company and be in the overall interest of the company and its stakeholders. The Companies Act does not have a definition of `independent directors’ though the definition of independent director as given in the recently amended clause 49 of listing agreement is an inclusive definition, which says who could be independent directors. Clause 49 of the listing agreements defines independent directors as follows:  

      ”For the purpose of this clause the expression ‘independent directors’ means directors who apart from receiving director’s remuneration, do not have any other material pecuniary relationship or transactions with the company, its promoters, its management or its subsidiaries, which in judgment of the board may affect independence of judgment of the directors⁴.”  

There are no provisions for appointment of independent director in the present Act. The appointment of independent directors in case of listed companies governed by the SEBI, but in case of unlisted company there is no such requirements.  
 

PART I

• ROLE OF INDEPENDENT DIRECTOR

 An independent director is a person with many years experience and chooses to be on the Board of director, who is supposed to guide the company. The role they play in a company broadly includes to improve corporate credibility and governance standards, function as watchdog, maintain balance in a promoter dominated scenario, play vital role in risk management. Their only role in the company is to protect the interests of the minority shareholders vis-à-vis the promoters. There are several benefits that an independent board of directors can bring to a company, which include:

•  
  1. Counterbalance management weaknesses in a company.
  2. Ensure legal and ethical behaviour at the company

Every Director has a role to play as reflected in the name itself. They cannot escape the law for being a signatory in the board meetings. Apart from relying on the judgment of the directors who do sit on the audit committee, an independent director who does not sit on the audit committee can take help of Section 209(4)⁵ of the Companies Act which states that “the books of account and other books and papers should be available for inspection to any director during business hours.” The directors have the right, to inspect documents pertaining to the period during which he was a director especially since he is required to answer a statutory authority on questions pertaining to that same period, which should be exercised by them properly⁶.  

Section 209 (4) include “the books of account and other books and papers”. What does ‘other books and papers’ stand for? It has been decided in 1972 by Madras High Court in K. Kanagasabapathy v. T.M. Shanmughan case “the words ‘other books and papers’ draws colour from the previous words ‘books of accounts’, so the expression can only mean other books and papers of the same kind as the books of accounts.⁷” 

Independent directors can only make sure that misdemeanours can be identified and the internal controls in the company are in place but if the management of a company decided to commit a fraud then it is very unlikely that the board can stop it, but they can not escape from their responsibility by giving excuse that there is just no way for an independent director to know if the board is being misled. It is an impossible job for an independent director to penetrate the company from outside. Unless the independent director does not get deeply involved with the activities of the company, such kind of malpractices cannot be detected.      
 
 
 
 
 
 
 
 
 
 
 

PART II

• HOW INDEPENDENT ARE INDEPENDENT DIRECTORS IN INDIA.

 An independent director is expected to act as watch dog of the board and protect the interest of shareholders. Since they are handpicked by the promoters himself so they prefer to be a friend of the promoters rather then be the watch dog of the board. Though independent director is paid by the company, it must be borne in mind that the company is not only owned by its promoters but all share holders so they are supposed to represent the interest of the minority shareholders. There are circumstances where independent directors are not independent, which broadly includes:-

•  
  • their selection procedure
  • no age limit
  • no specific qualification is required
  • no right to interfere in the day-to-day operations
  • no time limit for replacement of an independent director

 Independent directors are still the only hope to instill discipline in the murky world of corporate finance, provided their independence is not being compromised. If they are no more independent then their appointment in a company will be meaningless. This position deserves to be corrected by empowering SEBI and the Indian government. 

a) Selection procedure

A lot of emphasis is placed on the “independence” of independent directors their selection is still in the hands of owners of the company. No process of selection has been prescribed for the independent directors, as they are directly handpicked by the promoters. Promoters in control may take decisions that are not in the interest of small shareholders, an independent director must keep in mind the interest of all stakeholders. Such procedure for their selection raises question on their independence at the board. They can not be as independent as they are expected to be, if they are going to be appointed by the owners. This procedure has to be changed for the independence of directors. As long as they are appointed by management, the concept of independent directors is a myth, for truly independent directors, they have to be nominated by the SEBI which is a regulatory authority. If they have a right to regulate, then surely they have a right to even suggest the appointment of directors⁸.  

b) No age limit

There is no age limit has been prescribed under Companies Act, 1956 and by the SEBI. According to Indian companies Act a minor can become a director since no age limit is prescribed. This point must be rethink as a person who is under 18, as surly cannot acquire enough experience to become an independent director of a company⁹. It’s not the quantity of Independent Directors but the quality of Independent directors that make difference. There must be an age limit which can justify the position of an independent director. 

c) No specific qualification is required

There is need to focus on the quality of independent directors who are going to be appointed. They should be qualified enough so that they can ask right questions at the right time when they are at board. The most important requirement is his ability to stand up for minority shareholders, who are not represented on company boards. They need to be sound in judgement with an inquiring mind. Clause 49 of the Listing Agreement of the stock exchanges and the Companies Bill, 2008 introduced in Lok Sabha’s last session does not prescribe the minimum qualification or experience essential. Presence of independent director on the board makes sense only if they are well-educated, can add value to the company, and represent minority shareholders’ interests. The government and SEBI must review the qualification for independent directors.  

d) No right to interfere in the day-to-day operations

An Independent director has no right to interfere in the day-to-day operations of company. They have right to intervene in any misgivings or misdeeds. They are supposed to support the management in getting the delivery of what the objectives of the company are to its shareholders. If a director can not get into a company’s day-to-day operations, he can not understand how it is governed and will not be in the position to fulfill his responsibilities. There is no separate law under which an independent director operates; he has no legal protection from the management so that he can raise his voice fearlessly. For the involvement of independent director in day-to-days operations of company they must be given authority so that they can intervene in the day-to-day operations of company and may be able to raise their voice.          

e) No time limit for replacement of an independent director

There is no guideline prescribing a time limit for replacement of an independent director in case there is a resignation or removal or death of an existing one and promoters are taking a plea that they have not been able to find a replacement, which could stretch for indefinite period. The fees or remuneration of an independent director has grown so substantially in the last three years that an individual is often tempted to have an extended stay in the organization. Most of these directors would go by the decision of the promoters of the company without examining the details of company¹⁰. To retain the independence of director there is need to rotate such directors periodically or by any other method whereby the independence of independent director is secured. 
 
 
 
 
 
 
 
 
 
 
 
 
 

SUGGESTIONS:- 

Independent directors are very powerful part of company as they having rich experience so they play a very vital role in securing interest of shareholders as well as they are expected to give inputs for the benefit of management. For securing the independence of independent director there is need to break the nexus between the independent directors and promoters who sponsor them, for that nomination of independent director must be done by SEBI and government. 

A company should have a clearly laid out policy where there should be specified role played by him at board, their tenure and age limit, qualification required etc. The focus must be on the quality of person who is going to be appointed. Selection of independent directors by SEBI and government would be fair and bring transparency in the selection procedure as well as can secure their independence to some extend. So far as age limit is concerned which must be review, minor should not be considered eligible for the chair of independent director; the minimum age limit for an independent director must be between 30-35. The person must be well-educated with required experience so that he can justify the role of an independent director. Company must clearly laid down qualification and experience required for the post of independent director in the policy. The appointed director must be rotated periodically to ensure the transparency and fairness in their decision. Legal protection must be provided to independent directors so that they can raise their voice against the management and force their views in the interest of shareholders.  

If independent director does not fulfill their duty as a watch dog then it would amount to committing an offence. As Supreme Court in Municipality of Bhiwandi & Nizampur v. Kailas Sizing Works¹¹ has observed that  

      “the authority is not acting honestly where an authority has a suspicion that there is something wrong and does not make further enquiries. Being aware of possible harm to others, and action in spite thereof, is acting with reckless disregard of consequences. It was worse than negligence, for negligent action is that, the consequences of which the law presumes to be present in the mind of the negligent person, whether actually it was there or not.”  

So an independent director can not escape from his liability. They will be held liable equally if they will not take any action against the wrong committed in his knowledge. 
 
 

CONCLUSION:- 

Sstyam episode is proven to be tragic for the Indian corporate world, but it should be considered as a wake-up call to many. The Satyam case brought out the failure of the present corporate governance structure, in which independent directors failed to perform their responsibility effectively. As in Satyam case independent directors lacked commitment; they failed to live up to the stakeholders’ expectations. The only way independent directors can stop wrong doing by acting collectively.  

Across the world companies have appointed luminaries to the boards, secure in the knowledge that their presence would lend a badge of respectability to the boardroom. Satyam scam was no exception, its board included noted academics such as Harvard professor Krishna Palepu and ISB dean Rammohan Rao, but the manner of its unraveling has triggered an intense soul-searching across corporate circle¹². 

There is no need to implement new laws; all we need to do is to renew existing laws. Independent directors may not be in a position to stop management fraud perpetrated at the highest level, but with high level of commitment and due diligence they should be able to identify signals that indicate that everything is not going right.

The government had proposed amendments to the Copyright Act sometime in 2006 which would substantially change the scope of rights of the copyright owners in demanding royalty every time their work was published in any media. These amendments were strongly opposed by the powerful lobbies in the music industry which led to the delay in the passing of the amending act. However, quite recently the government has proposed certain amendments to the Copyright Act which would include a new system of royalties for artists.

These amendments are being made to bring the Act in conformity with the World Intellectual Property Organization (WIPO) Internet Treaties, namely WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) which have set the international standards in these spheres,” said an official. The WCT deals with the protection for the authors of literary and artistic works such as writings, computer programmes, original databases, musical works, audiovisual works, works of fine art and photographs. The WPPT protects certain “related rights” which are the rights of the performers and producers of phonograms.²

While India has not yet signed the above two treaties it is necessary to amend domestic legislation to extend the copyright protection in the digital environment. Various amendments have been proposed in order to bring the Act in conformity with WCT and WPPT. The amendments propose to also include the creation of a new type of rights – namely “moral rights” and “the right to integrity” which, under the Act would be non-assignable. Section 38 of The Copyright Act, 1957 is proposed to be amended to make it compliant with the WPPT. The new section (38B) provides for the performer to be identified as the performer of the performance and to prevent any damage or alteration or mutilation of his work.

The amendment to Section 65 in the form of Section 65A provides for the punishment of persons who circumvent technological measures for the purpose of infringing copyrights. Any such acts shall be punishable with imprisonment which may extend to two years and may also extend to fine.

The most discussed amendment to the Act is the amendment providing for the access of copyrighted works to persons who are visually or aurally or in any other way challenged. The proposed amendment to Section 52 (1) (za) reads as follows –

“Certain acts not to be infringement of copyright- ….

(1) (za) the reproduction, issue of copies or communication to the public of any work in a format, including sign language, specially designed only for the use of persons suffering from a visual, aural or other disability that prevents their enjoyment of such works in the normal format. ”

Such a provision is critical, given that hardly 0.5% of all published books are accessible by the print impaired. Further, given the constitutional mandate that each one of us shall have the right to life under Article 21 (which includes the right to education and the right to read) and the right not to be discriminated against (under Article 14), the State is under a positive obligation to provide accessible works to the disabled and thereby help them lead better lives. However, the clause provides for the viewing of the works in certain formats only, most of which are highly expensive. Such a provision is self-defeating in nature. For example the most popular format for screen reading, JAWS is made available for Rs. 50,000/-.

It is also proposed to alter the term of copyright from the current sixty years to a term of the lifetime of the author plus sixty years, an amendment which would significantly increase the term of protection extended to a copyright. The author or his legal representatives would be entitled to a much longer term of enforcing the rights available to them under law.

In conclusion, the amendments proposed to the Copyright Act would provide more rights and a degree of further control to the authors or creators of the copyrighted work. Such rights would bring the status of the Indian legislation to par with the international standard set by the WIPO. The Ministry of Human Resource Development (MHRD) has proposed the amendments in order to gain clarity, remove operational difficulties and to address the newer issues that have emerged in the context of digital technology and the internet. However, whether the amendments shall be passed still remain to be seen.

References:

[1]http://copyright.gov.in/

[2]http://www.indiaedunews.net/

[3] http://spicyipindia.blogspot.com/

       Traditionally, trafficking was coupled with slavery and forced labour, which now has given way to prostitution and commercial sexual exploitation. The cause for concern amounts from the fact that trafficking is the third largest source of illegal activities in the world after arms and drugs.

       The reasons behind trafficking of women and children are several, the most important being the deficiency of basic necessities of life. Social, political and economic factors render women and children vulnerable to falling pray to trafficking.

         Poverty is the most common factor responsible for a large number of women and children to leave their homes in search for a better life and in turn falling prey to trafficking. Women are trafficked for the purpose of prostitution and children for menial labour and petty crimes. Poverty and economic disparities between different places encourage the poverty stricken women and children to migrate in search of a better livelihood. Therefore, greater the measure of impoverishment leads to a higher measure of trafficking.

        Women and children coming from broken families, where they have been subjected to sexual abuse or drug abuse become victims of trafficking as they feel the need to flee from their dismal circumstance.

         Marriage is yet another significant factor responsible for trafficking of women. It is used as a camouflage for trafficking where parents who are eager to get their daughters married but cannot pay dowry give up their daughters, thereby aiding in trafficking.

         Domestic Violence accelerates the cause of trafficking. Women feel the need to escape from their pathetic situation of mental and physical trauma caused by domestic violence and fall prey to traffickers.

          A recent survey explains the decline in the sex ratio as an imminent threat to women and children, becoming victims of trafficking. To be precise, the demand for women and girls has increased in some places due to such decline and therefore women and girls are trafficked from one state to another for marriage or for commercial sexual exploitation.

         Traditional prostitution although prohibited still continues to exist in a surreptitious manner. Minor girls are driven into prostitution in the name of faith essentially in the states of Maharashtra and Karnataka.

          Yet another significant dynamic responsible for trafficking is the limited access to education and information available to these women and children who easily become victims of traffickers. Commercial sex work being another factor which aggravates trafficking. The pure nature of this industry demands a regular fresh supply of women and girls, making this industry a very profitable one, as it requires low investment and yields a high unaccountable profit.

         Globalisation and commercialisation has undeniably resulted in the need for cheap labour. There is ample lot of unprotected labour flow from the rural areas which causes an increase in the prospects for trafficking and exploitation. The direct effect of consumerism hones the need for acquiring consumer goods, thereby increasing the desire for more money. This materialises into a large number of people easily available to migrate from one place to another for economic advantage.

          The law which has been instrumental in curbing and suppressing the exploitation of people subjected to trafficking is the Immoral Traffic (Prevention) Act, 1956. This Act was enacted in pursuance of the International Convention for the Suppression of Immoral Traffic in Persons and the Exploitation of the Prostitution of others. Article 23 of the Constitution guarantees to every citizen of India the prohibition of traffic in human beings and forced labour. Again, the Directive Principles of State Policies under Part IV of the Indian Constitution in Article 39(e) and (f) declares that the State Policies should be directed towards securing and protecting childhood and youth against exploitation and material abandonment. Built on these constitutional principles the Suppression of Immoral Traffic in Women and Girls Act was enacted in 1956 (SIT ACT). This Act was amended twice and was renamed as the ITP Act in 1986.

      Despite the measures provided in the ITP Act 1956, prohibiting and condemning any violation made in contravention of the provisions prescribed in the Act, there have been grave violations made in pursue of trafficking and exploitation of Women and Girls for prostitution and commercial sex work.

      Our country has delineated an impressive history in many spheres civilization has learned to cherish-an expotentially growing economy, an enormous reservoir of labour which only awaits to reach its true potential and underlying all policies, a steadfast Constitution breathing principles of justice and fairness in all questions of policy. Honouring its implicit commitment to secure the most rudimentary rights available to a citizen of any modern democracy,human rights, must also feature high on any Government’s agenda, especially that belonging to a welfare state. It is therefore a necessary and desirable aspiration for the Indian Government to expend much of its energy and resources in ensuring human trafficking, one of the grossest forms of violation to a bodily integrity, be curtailed.

       References:

                            Trafficking and the Law :  An HRLN Publication.

[2] http://www.indiatogether.org/2007/jul/law-seniors.htm

[3] Introduction to the Maintenance and Welfare of Parents and Senior Citizens Act, 2007; Bare Act

[4] Kulwant Singh vs Laljee Kent and ors, 162(2009)DLT625

Freedom of Press has perpetually been a cherished right in all democracies. “Growth and development of representative democracy is so much intertwined with growth of press that the press has come to be recognized as an institutional limb of modern democracy.”<!–[if !supportFootnotes]–>[2]<!–[endif]–> Press is an indispensable element in the working of a modern nation. The newspapers are the barometer of the true character of the Government whether it is authoritarian or democratic. To restrict substantially the rights of speech, press, assembly and voting… is to cut the arteries that feed the heart of the democratic model.<!–[if !supportFootnotes]–>[3]<!–[endif]–> Therefore Press is rightly considered as ‘the fourth pillar’ or ‘the fourth estate’ of a democracy.

No state tolerates absolute freedom of expression. There are reasonable restrictions to curtail this right. All states operate codes which demarcate boundaries on the content published or broadcast by the mass media. What freedom connotes and what confinements should apply to it, form ingredient of a never-ending political debate. On one extreme lenient sates like the US insists that the Congress shall make no law which abridges the freedom of speech or press<!–[if !supportFootnotes]–>[4]<!–[endif]–>. On the other extreme authoritarian states like the Saudi Arabia require the media to respect the words and laws of the State. Publishing of anything that might lead to internal rifts or struggles or might harm the foreign relations or security is forbidden and punishable. The researcher cannot delve deep on these extreme circumstances but infers that for establishing political order some countries protect press freedom and for the same objective some countries restrict press freedom. Free Press is the right to publish and print our thoughts and opinions freely, without the official censorship most countries impose.

The press has a crucial role in shaping the policies of a nation. In order that the people may form rational judgement it is vital that they must be apprised of all aspects of a question on which a verdict is required, so that they arrive at the right conclusion. The right to utter honest and reasonable criticism on matters of public concern is a source of strength to the community, and the press being a powerful medium of mass communication should be free to play its role. Denial of freedom of the press to citizens would necessarily undermine its power to influence public opinion and run counter to the principles of democracy itself.

Free press is hailed as the eyes and ears of society. To build a strong and viable society there has to be the widest possible dissemination of information form diverse sources. It is attributed as a medium which allows for a diversity of ideas and outlooks. It is not an instrument of a sole view or state propaganda. The media is ‘free’ specifically for the reason that they are not subject to centralized control. Any control on content like a state press or state censorship is treated as an infringement of these rights representing the loss of freedom. The media treat elections as the blood stream of democratic process, and their coverage provides citizens facts on which they base their vote.

The key contents of the freedom of press are listed below:

<!–[if !supportLists]–>§ <!–[endif]–>Freedom to gather information from diverse and antagonistic sources, on a competitive basis, free from any monopolistic control from the government.

<!–[if !supportLists]–>§ <!–[endif]–>Freedom to inform public true facts without fear or favour.

<!–[if !supportLists]–>§ <!–[endif]–>Right to have free access to sources of information.

Free expression is necessary for

• the development of individual personality
• the attainment of truth
• participation by members of society in political and social decision-making
• for maintaining a balance between stability and change in society

Chapter 1

Right to Freedom of Press:

An Indian Perspective

One of the constitutional guarantees unceasingly requested by the freedom fighters during the British Raj was ‘Freedom of the Press’. During the framing of the Constitution the founding fathers bestowed enormous significance to Freedom of the Press. They thought that fundamental to the concept of a free press is the freedom of political opinion and at the nucleus of that freedom lies the right to censure and criticize the government. However freedom of the press is not specifically mentioned in the Chapter on Fundamental Rights<!–[if !supportFootnotes]–>[5]<!–[endif]–>. B. N. Rao, the Constitutional Advisor to the Constituent Assembly assured that freedom of the press was included in the guarantee of freedom of speech and expression and it was hardly necessary to provide for it specifically.<!–[if !supportFootnotes]–>[6]<!–[endif]–>

This concept has been warranted by the Supreme Court of India. In numerous judgements the Supreme Court has ruled that Freedom of the Press is contained in the guarantee of freedom of speech and expression in Article 19(1)(a) of the Constitution<!–[if !supportFootnotes]–>[7]<!–[endif]–>. Thus freedom of the press by judicial interpretation has been accorded constitutional status. This freedom can be restricted if the restriction imposed has the authority of law to support it. Freedom of the Press, like any other fundamental right, cannot be curtailed by executive orders or administrative instructions, which lack the sanction of law. The law must also fall squarely within one or more heads of permissible restrictions specified in Article 19(2)<!–[if !supportFootnotes]–>[8]<!–[endif]–>. In a landmark judgment in the case of Sakal Papers<!–[if !supportFootnotes]–>[9]<!–[endif]–>, the Supreme Court ruled that the State cannot curtail the freedom of the press for promoting the general welfare of a section or a group of people unless its action can be justified by a law strictly falling under Article 19(2). Moreover, the restriction must be reasonable. In other words, it must not be excessive or disproportionate. The procedure and the manner of imposition of the restriction also must be just, fair and reasonable.<!–[if !supportFootnotes]–>[10]<!–[endif]–>

The validity of the restriction is justiciable. Courts in India exercising the power of judicial review can nullify laws and measures which do not comply with the above requirements. The Indian judiciary has ruled that freedom of the press embraces a variety of rights. The right guaranteed is not merely the individual right of the proprietor of the newspaper, or the editor or the journalist. It includes the right to disseminate and import information over the right of citizens to receive information to read and to be informed. In essence, it is the right of the people to know.

Reasonable restrictions

Article 19(2) of the Indian constitution enables the legislature to impose reasonable restrictions on free speech under following heads:

• Security of the State: All the utterances intended to endanger the security of the State by crimes of violence intended to overthrow the government, waging of war and rebellion against the government, external aggression or war, etc., may be restrained in the interest of the security of the State.<!–[if !supportFootnotes]–>[11]<!–[endif]–> It does not refer to the ordinary breaches of public order which do not involve any danger to the State.

• Friendly relations with foreign States: This restriction was added by the Constitution (1^st Amendment) Act, 1951<!–[if !supportFootnotes]–>[12]<!–[endif]–>. The State can impose reasonable restrictions on the freedom of speech and expression, if it tends to jeopardize the friendly relations of India with other nation(s).

• Public order: This ground was also added by the 1^st Amendment in order to meet the situation arising from the Supreme Court’s decision in Romesh Thapar’s case<!–[if !supportFootnotes]–>[13]<!–[endif]–> where it refused to permit the imposition of restrictions on the right to free speech in the interests of public order.<!–[if !supportFootnotes]–>[14]<!–[endif]–> The expression ‘public order’ connotes the sense of public peace, safety and tranquillity.

• Decency and morality: In an English case R. v. Hicklin<!–[if !supportFootnotes]–>[15]<!–[endif]–>, the test ‘whether the tendency of the matter charged as obscene tend to deprave and corrupt the minds which are open to such immoral influences’ was laid.<!–[if !supportFootnotes]–>[16]<!–[endif]–> This test has been upheld by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra<!–[if !supportFootnotes]–>[17]<!–[endif]–> . In this case the Court upheld the conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and keeping the book the Lady Chatterley’s Lover. The standard of morality varies from time to time and from place to place.

• Contempt of court: The constitutional right to freedom of speech would not allow a person to contempt the courts. The expression Contempt of Court has been defined by Section 2 of the Contempt of Courts Act, 1971.

• Defamation: The constitution prevents any person from publishing any statement that injures the reputation of another. With the same view, defamation has been criminalized in India by Section 499 of the I.P.C.

• Incitement to an offence: This ground was also added by the 1^st Amendment. The Constitution prohibits a person from making any statement that incites people to commit offence.

• Integrity and Sovereignty of India: This ground was added by the Constitution (16^th Amendment) Act, 1963. This is aimed to prohibit anyone from making the statements that challenge the integrity and sovereignty of India or preaches secession.

A dictum of the Supreme Court described the freedom of Press as “the Ark of the Covenant of Democracy”<!–[if !supportFootnotes]–>[18]<!–[endif]–> and as the most precious of all the freedoms guaranteed by our Constitution. The test adopted by the Supreme Court for determining whether a particular piece of legislation infringes freedom of the press is the effect and operation of the legislation. It is not the object of the law or the form of executive action that determines the invasion of a fundamental right. The true test is whether the direct and inevitable effect of the impugned legislation or action is to abridge freedom of the press.<!–[if !supportFootnotes]–>[19]<!–[endif]–> In a celebrated decision, Bennett Coleman & Co. v. Union of India the Court ruled that a newsprint policy like the one before the Court was violative of the freedom of the press because it imposed restrictions which severely constricted newspapers in adjusting their page number and circulation and also curtailed the area of advertisement. The Court ruled that loss of advertisements seriously affects the circulation of a newspaper and a restraint on advertisements would clearly affect the freedom of the press.

The owner of a Telugu daily, Eenadu, complained that government had withdrawn advertisements from its paper owing to extraneous reasons, namely its criticism of the government, and this had adversely affected the circulation of the paper and its revenue. The High Court did not accept the contention that a newspaper has a constitutional right to obtain advertisements from the government. It, however, held that the government cannot exercise this power or privilege to favour one set of newspapers or to show its displeasure against another section of the press. It should not use the power over such large funds in its hands to muzzle the press, or as a weapon to punish newspapers which criticise its policies and actions. It has to use the funds in a reasonable manner consistently with the object of the advertisement viz. to educate and inform the public about the activities of the government.<!–[if !supportFootnotes]–>[20]<!–[endif]–>

According to the recent judgment of the Supreme Court commercial speech is within the guarantee of Article 19(1)(a) and therefore commercial advertisements are entitled to constitutional protection.<!–[if !supportFootnotes]–>[21]<!–[endif]–>

Freedom of the Press encompasses the freedom ‘not to’ publish any news, article, correspondence or any other matter, nor to include anything on the dictation of any authority. Freedom of the Press would be impaired if the editorial policy of the newspaper is controlled or influenced by public authorities, political parties, pressure groups, proprietors and advertisers.

The economic and business aspects of the press are regulated under Article 19(1)(g) which provides for freedom of profession, occupation, trade or business. This is restricted by Article 19(6) which includes provisions for public interest, professional and technical qualifications and state nationalization- total or partial.<!–[if !supportFootnotes]–>[22]<!–[endif]–>

The SC emphasized that in the today’s free world freedom of press is the heart of social and political intercourse. It observed that the press has nowadays assumed the role of the public educator and its purpose is to advance public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments.<!–[if !supportFootnotes]–>[23]<!–[endif]–> The SC further stated that neither the Government nor any instrumentality of the Government or any public sector undertaking run with the help of public funds can shy away from articles which expose weaknesses in its functioning and which pose a threat to their power.<!–[if !supportFootnotes]–>[24]<!–[endif]–>

Chapter 2
Threats to Press Freedom by State

Paris-based media advocacy group Reporters Without Borders ranks countries in terms of media freedom. In the ranking of countries from best to worst, they pegged India at the 115^th spot.<!–[if !supportFootnotes]–>[25]<!–[endif]–>

The State remains the source of the most potential threat to Press freedom. A special legislation called the Press (Prevention of Objectionable Matters) Act was adopted in 1951 which inter alia gave the government powers to intercept material going to the Press through the Posts and Telegraphs. Some governments thought it proper to take steps against newspapers whose policy they did not like.

One of the vexed issues before the Court has been that of censorship by way of prior restraint. There is no provision in the Indian Constitution permitting or proscribing censorship. The sting of censorship lies in prior restraint which affects the heart and soul of freedom of the press. Expression is snuffed out before its birth. That is the real vice of prior restraint and its irresistible attraction to the censor. Is prior restraint per se unconstitutional? The American Convention on Human Rights (San Jose) 1969 (ACHR) expressly states that freedom of expression “shall not be subject to prior censorship”.<!–[if !supportFootnotes]–>[26]<!–[endif]–> However indeed, its necessity has been recognised in exceptional cases by the U. S. Supreme Court in the case of Near v Minnesota<!–[if !supportFootnotes]–>[27]<!–[endif]–>. The Court observed that the protection even as to previous restraint is not absolutely unlimited and listed as exceptions obstructions to recruitment during war, publication of military movements, obscenity, incitements to acts of violence and the overthrow by force of orderly government, and words that “may have all the effect of force”. The Supreme Court of India in May 1950 had to resolve the question in Brij Bhushan v. The State of Delhi.<!–[if !supportFootnotes]–>[28]<!–[endif]–> Section 7(1)(c) of the East Punjab Safety Act 1949 provided for submission of material for scrutiny if the government was satisfied that such action was necessary for the purpose of preventing or combating any activity prejudicial to public safety or the maintenance of public order. The Court declared the statutory provision in question unconstitutional on the ground that the restrictions imposed were outside the purview of Article 19(2) as it then stood, which did not include public order as a permissible head of restriction. The Court did not rule that prior censorship is per se unconstitutional. Indeed, in 1957 the Court upheld censorship imposed under the Punjab Special Powers (Press) Act 1956 for a temporary period, which provided for a right of representation to the government. But the court held that imposing censorship without any time limit and without providing any right of representation is unconstitutional.

Censorship of the Press was imposed for the first time in independent India by the promulgation of a Central Censorship Order, dated 26 June 1975<!–[if !supportFootnotes]–>[29]<!–[endif]–>. Under the Indian Constitution during an emergency, fundamental rights stand suspended. Censorship becomes immune from constitutional challenge. Taking advantage of the emergency, numerous repressive measures were adopted in the form of executive non-statutory guidelines. One of the instructions of the censor was that “nothing is to be published that is likely to convey the impression of a protest or disapproval of government measures.<!–[if !supportFootnotes]–>[30]<!–[endif]–> Consequently anything that criticised governmental measures or action was invariably banned, even if the criticism was sober and moderate. The censor’s scissors applied in “killing” news of the opposition, judiciary and protestors. The Bombay High Court in its landmark judgment in Binod Rao v. Masani<!–[if !supportFootnotes]–>[31]<!–[endif]–> declared: “It is not the function of the censor acting under the Censorship Order to make all newspapers and periodicals trim their sails to one wind or to tow along in a single file or to speak in chorus with one voice. It is not for him to exercise his statutory powers to force public opinion in a single mould or to turn the Press into an instrument for brainwashing the public. Under the Censorship Order the censor is appointed the nursemaid of democracy and not its gravedigger. Merely because dissent, disapproval or criticism is expressed in strong language is no ground for banning its publication.” The Gujarat High Court in C. Vaidya v. DâPenha<!–[if !supportFootnotes]–>[32]<!–[endif]–> criticized the censorship directives for imposing upon the people “a mask of suffocation and strangulation”. In R. Rajagopal v. State of TN<!–[if !supportFootnotes]–>[33]<!–[endif]–> the Supreme Court held that neither the government nor the officials who apprehend that they may be defamed, had the right to impose a prior restraint upon the publication of the autobiography of Auto Shankar, a convict serving sentence of death in jail, which was likely to reveal a nexus between criminals and high ups in the police. The Court held that the remedy of public officials/public figures, if any, will arise only after the publication.

The Court has however accepted prior restraint in the case of exhibition of motion pictures because of the instant appeal of the motion picture. It, however, emphasised the necessity for corrective machinery in the shape of an independent tribunal and also a reasonable time limit for the decision of the censoring authorities.

The judiciary has provided generous protection to freedom of the press in several cases. In India any person, including the press, is free to criticise a judgment, to comment on it pungently, severely, because justice is not a cloistered virtue and can suffer the outbursts of even the wrong headed.

Laws such as the Official Secrets Act and Prevention of Terrorism Act have been used to limit press freedom. For the first half-century of independence, media control by the state was the major constraint on press freedom. Indira Gandhi famously stated in 1975 that All India Radio is “a Government organ, it is going to remain a Government organ…” With the liberalization starting in the 1990s, private control of media has burgeoned, leading to increasing independence and greater scrutiny of government. Organizations like Tehelka and NDTV have been particularly influential.

Chapter 3
Media Ethics & Accountability of Press

“Press is the watchdog to see that

every trial is conducted fairly, openly and above board,

but the watchdog may sometimes break loose

and has to be punished for misbehaviour.”

Lord Denning in Road to Justice

In 2008 when terrorists attacked Mumbai, the news channels were showing live pictures of the commandos and other personnel which could have been seen by the terrorists through satellite phones or other equipment. This could provide them knowledge of the operations going on outside. This could have been a potential threat to the personnel fighting there. Media institutions, on their part, must recognize that they have to employ their liberty within some bounds.

Bias in the media is concerned with whether the media favour one point of view at the expense of others.<!–[if !supportFootnotes]–>[34]<!–[endif]–> Prejudice by media can mislead the public about some critical issues. Inadequate or erroneous information is likely to result in misconceived political acts.

People can only form opinions on the basis of the knowledge they have, and the media are primarily responsible for providing this knowledge.<!–[if !supportFootnotes]–>[35]<!–[endif]–> If a newspaper systematically and intentionally suppresses or manipulates information, restricts the content of information and denies its accessibility to the public it may inflame communal and racial passions which might lead to riots and violence. Such a newspaper cannot morally and legitimately lay claim the constitutional guarantee of free speech though it may claim the fundamental right to carry on trade and business. In such case the scope for imposition of restrictions should be wide.

‘Yellow journalism’ is journalism that features sex scandals, scandal-mongering, sensationalism, or other unethical or unprofessional practices by news media organizations or journalists. It can be described as news programming which blends “soft” journalism and entertainment rather than emphasizing more important news values.<!–[if !supportFootnotes]–>[36]<!–[endif]–> The Freedom of the Press is likely to be abused by what is called ‘yellow journalism’. Yellow Journalism covers “any malicious and wilful publications of reports which are known to be false or are not believed to be true, as well as the building up of a body of falsehood around a core of fact. It would include also the lurid exposure, unrelated to public interest, of the personal lives of the individual or even unwarranted intrusions into their private lives. Such publications are made, with or without intention to levy blackmail directly or indirectly, and sometimes only to cause pain or humiliation. We would also include therein indulgence in the obscene or in language suggestive of the obscene with deliberate intent to debate public taste. There is also the use of abusive language and writings offending against public decency.”<!–[if !supportFootnotes]–>[37]<!–[endif]–>

‘Corporate media’ is applied to news conglomerates whose business interests are counter to the public interest. For example, such media may avoid incisive reporting on influential corporations or limit public information about proposed government regulation of media industries. Collusion between political, business and media worlds sometimes brings allegations of illegal or unethical practices ranging from fraud to antitrust violations.

‘Pseudo-news’ organizations draw wide-ranging audiences by issue-based entertainment. India TV has been often criticized to be a pseudo-news organization as it neglects serious issues and shows less important incidents.

‘Parachute journalism’ is a term used to describe the practice of ‘parachuting’ or forcing journalists into an area to report on a story in which the reporter has little knowledge or experience. The lack of knowledge and tight deadlines often result in inaccurate or distorted news reports, especially during breaking news.<!–[if !supportFootnotes]–>[38]<!–[endif]–> Critics contend this type of journalism usually consists of reporting mere basic details and often includes the misrepresentation of facts and ignorance of contextual issues. The journalist often lacks in-depth knowledge of the situation and is usually disoriented because of the strangeness of the environment he or she is in. Often the only information immediately available is from other news organizations or from “official” or bureaucratic sources that may contain propaganda. Due to a lack of time and knowledge, background research and independent investigation of the events at the site of occurrence might not be done.

In Bijoyananda v. Bala Krishna the court held that “the responsibility of the press is greater than the responsibility of an individual because the press has a larger audience. The freedom of the press should not degenerate into a licence to attack litigants and close the door of justice nor can it include any unrestricted liberty to damage the reputation of respectable persons.

In the light of the above mentioned malpractices which can be adopted by the media arises the need to check Press Freedom. This calls for a machinery to certify a high pattern of accountability on the part of the press.<!–[if !supportFootnotes]–>[39]<!–[endif]–> In India, this task is performed by the Press Council of India.<!–[if !supportFootnotes]–>[40]<!–[endif]–> It is envisaged as an agency for self-regulation, and preservation of the freedom of the Press. The Press Council serves as a watchdog over standards of journalism in the country. One of the objects of the council is to “maintain and improve the standards of newspapers and news agencies in India.” It adjudicates the complaints against and by the press for violation of ethics and for violation of the freedom of the press respectively.<!–[if !supportFootnotes]–>[41]<!–[endif]–>

Thus the public function which belongs to the press makes it an obligation to perform its role with the fullest sense of responsibility.

It can be said that the press largely has been a fine watchdog. It has played an important and constructive role in India by exposing dishonesty and concealment in the operation of the administrative and public institutions. Several scams like the Bofors scam, match-fixing incident, etc. have been brought to light by the vigilant press. What should never be ignored while assessing the Press in the Indian context is that it is only a Free Press which can assist in developing a body of citizens who are well informed both regarding current events and also about the problems facing the country and the alternatives available for tackling them. It is only such a Press that can enable a young democracy like India to stay alive, and also help its development in a manner where social justice is ensured and the interests of the common people served. Courts in India have fearlessly performed their role of enforcing accountability of the executive, checking the menace of corruption and by upholding the Rule of Law. I do hope that in the coming years the institutions of democracy will perform their respective roles in harmony, as natural allies remembering that the ultimate goal is of ensuring good governance and a better life for all citizens.

I would like to conclude with some general observations. We rightly value press freedom and should be cautious in preventing direct and indirect encroachments on this precious freedom. Freedom of the press is undoubtedly one of the basic freedoms in a democratic society based on the Rule of Law. I suggest that freedom of the press is not an end in itself. It is the means for ensuring that in a democratic society there is good governance, transparency, accountability and respect for human rights and dignity.

I would like to conclude by citing what our former Prime Minister Rajiv Gandhi had said about press freedom:

“Freedom of Press is an Article of Faith with us,

Sanctified by our Constitution,

Validated by four decades of freedom

And indispensable to our future as a Nation.”

Browne, Ken, An Introduction to Sociology 3^rd edition (Polity Press, 2005, Cambridge)

Freedom of the Press, Wikipedia, available at http://en.wikipedia.org/wiki/Freedom_of_the_Press

Freedom of the Press, PUCL Bulletin, July 1982, available at www.pucl.org

Iyer, Justice V. R. Krishna and Sethi, Dr Vinod Essays on Press Freedom (Capital Foundation Society, 1996, Delhi)

Parachute Journalism, Wikipedia available at http://en.wikipedia.org/wiki/Parachute_journalism

Press Council of India available at www.presscouncil.nic.in/home.htm

Research and Reference Division Mass Media in India 1988 (Ministry of Information and Broadcasting, 1989, New Delhi)

Singh, M. P. V. N. Shukla’s Constitution of India 9^th edition (Eastern Book Company, Lucknow, 1998)

Singh, S. S. The Press and the Indian Parliament (Classical Publishing Company, 2001, New Delhi)

Sorabjee, Soli J. Freedom of Media – Constitution and the Court (The University of Melbourne, 22 May 2000) available at www.asialink.unimelb.edu.au

Street, John Mass Media, Politics and Democracy (Ch-12 - A Free Press: Democracy and Mass Media pp. 250 - 272)

Trager, Robert and Dickerson, D. L. Freedom of Expression in the 21^st Century (Pine Forge Press, 1999, Thousand Oaks)

Yellow Journalism, Wikipedia available at http://en.wikipedia.org/wiki/Yellow_journalism