“An athlete cannot run with money in his pockets. He must run with hope in his heart and dreams in his head”
Perhaps the aforementioned quote by the three-time Olympic gold medalist was meant to highlight the spirit of sports in the bygone time – space passageway. Perhaps the quote was meant to encompass sports before it became an industry and before exploitation of players became a common practice. And, perhaps the quote still prevails in the hearts of sportspersons but has compromised a tad space for commercialization.
Today, statutes across the globe and judiciary for the most part, have time and oft been necessitated to measure activities and fields against money. Similar is the case with sports which have become an industry in itself. There is little scope for an industry to not fall under the ambit of law.
This Article examines the interaction among sports, competition laws and labour laws, especially the collective bargaining process. The authors have relied upon multitudes of specific illustrations from a variety of sports. These illustrations have contributed to the recognition and growth of the subject matter. Furthermore, the authors have highlighted the unique characteristics of sports and the challenges posed by the collective bargaining process vis-à-vis the sports industry.
Nonetheless, the Article also clarifies that several of these challenges can be resolved and that the collective bargaining process, irrespective of the multiple issues surrounding it, can be beneficial to professional sports.
LEGAL STRUCTURE OF SPORTS
When talking about the ‘law as a system of rules,’ Sir John William Salmond wouldn’t have believed that the sporting rules would command a distinct division of law, alias ‘Sports Law’. Astonishingly, today, not only sports law is already an acclaimed and practiced area of law, the convergence of sports and law traces its presence through numerous diverse fields of law. Said fields of law include but are not limited to Contract Law, Labour Laws and Antitrust Laws.
Global socio – legal issues such as drugging, tampering, sledging and illegal use of force have been, more or less, dealt with by the respective governing bodies. However, there exist multitudes of issues which haven’t been deliberated upon and have little to no jurisprudence for guidance or resolution.
One such issue is the issue of collective bargaining in professional sports. Collective bargaining is the practice of discussion between the employer and the employees wherein the employees act as one body, instead of separate entities. Historically, during the course of collective bargaining, remuneration, work-hours and working conditions were mandatorily discussed. But, there was always scope for other matters to be put on the table as per mutual agreement. In contrast, collective bargaining in professional sports encompass negotiation related to issues similar to injuries complaints, payments, medical privileges, retirement etc.
With the settlement of the talk betwixt the employer and the collective voice, a binding contract is formed.
THE USAGE AND NEED OF COLLECTIVE BARGAINING IN SPORTS
The reasons for promotion of unions and collective bargaining in professional sports are as solid as all other trades. Similar to all other fields comprising of employer – employee relationship, imbalances of bargaining power find its presence in the case of professional sports as well.
Comparatively, the benefits of collective bargaining in sports are many: Apart from parity in negotiating authority, better deals for the players and regular conversation betwixt players and governing authority / administration are assured. Additionally, players, especially newcomers get to know their liberties and privileges.
Furthermore, as a whole, these entitlements are better protected with the presence of a collective bargaining agreement (hereinafter “CBA”). Ultimately, due to the presence of CBAs, issues like duration of employment, remuneration, complaint redressal become subject to negotiation and aren’t one-sidedly forced by the owners / employers.
CHALLENGES WITH THE AMALGAMATION OF COLLECTIVE BARGAINING AND SPORTS
1. The parties to collective bargaining
Unlike traditional contractual negotiations, at times, there are more than two parties to the process of collective bargaining in certain sports. For instance, the case of Formula One Motor Racing, the situation is a subject of debate:
The racer signs a binary employment agreement with the ‘team’ (Example: Red Bull Racing). But, multitudes of interdependent agreements are present among the racer, the teams and the International Automobile Federation (“FIA”). Ergo, the aforementioned agreement will be administered by multiple regulations. These regulations find their genesis in the top to down set up from regulating authority to the racer.
Therefore, all Formula One motorists ought to follow the conditions of employment necessitated by the racing team along with the rules of the FIA. Hence, in the authors’ opinion, if the Grand Prix Drivers’ Association aims to undertake collective bargaining on behalf of the Formula One drivers, the employing team as well as the International Automobile Federation will have to present.
Secondly, the racing teams participating in Formula One Motor Racing undergo an analogous contract with the International Automobile Federation. Interestingly, although the association betwixt the teams and the International Automobile Federation is not that of employment in nature, it still has witnessed collectivization of teams through the Formula One Teams’ Association.
Notably, the option of the team and the regulating authority functioning as the ‘joint employer’ has been taken up by the US authorities. The relevant jurisprudence states that the regulating authority (of the sport) along with the team (engaging the player) represented a joint employer. On one hand, the regulating or the governing authority commands authority over issues such as transfer of athletes whereas on the other hand, the team has the authority to alter the provisions of a typical contractual agreement.
In the case Formula One, Formula One Management (“FOM”), which is the commercial rights holder, is prominent too. As per the numerous vertical arrangements signed amongst the bodies, FOM has the authority to modify any racer’s contract without running it past the team or the FIA. The Rugby athletes in South Africa collectively bargain with the regulating authority along with the distinct commercial rights controller. Nonetheless, in the authors’ opinion, getting two different bodies in the capacity of employer is a substantial problem: While the regulating authority will aim to safeguard the sportsmanship and uprightness of the game, a body with commercial motives (specifically), might undermine these fundamental aims.
In the case of F1, the irregularity in the interests due to the presence of four noticeable parties will lead to competition amongst the voices present in the process of collective bargaining. Speculatively, the party with highest financial authority will have its way.
Either way, the problems with accommodating multiple parties in the bargaining process aren’t incurable. Alternatively, it is the authors’ belief that confronting the issues objectively, with the parties retaining equal bargaining power, will only shelter the sport from regulatory exploitation. But, it is pertinent that the connections among the players, teams, regulatory or governing entities etc. are openly and clearly determined and accommodated.
On a different note, the judiciary has shown willingness to determine employment connection betwixt players and regulating or governing authority, despite the nonexistence of appropriate documentation highlighting the same. In Jones v. Welsh, the court stated that an athlete’s registration with the governing entity was sufficient to establish employer – employee relationship.
Scholars have pointed out that the adequate way out with this issue is the formulation of a ‘tripartite agreement’ amongst the 3 parties involved. Thus, in case of Formula One Motor Racing, a tripartite agreement among the Grand Prix Drivers’ Association, the Formula One Teams’ Association and the FIA could solve majority of the aforementioned issues.
2. The issue of superstars
The idea of collective bargaining rests upon adequate compensation of employees, which calls for standardization of remuneration. Interestingly, the first inadequate monetary compensation was the reason behind the formation of the first sports union. The policy of compensating predictably and as per the player’s skills is a minute detail undertaken during the process of collective bargaining.
A cooperative compensation scheme has a visible advantage: The process of collective bargaining can be utilized to guarantee adequate compensation to all, especially the ones with the least bargaining power.
But, the aforesaid shared voice has scope for injustice too. While the rigid nature of collective bargaining agreements puts the vulnerable ones in a better position, simultaneously, it harms the remuneration of the best and the most seasoned players. While the big names are few, their influence on the sport is disproportionate. Additionally, no professional league wishes to lose out on the presence a celebrity of the sport.
Ergo, the best are the worst hit by a compromise on individual flexibility. But, there exist ways for attaining flexibility: Rugby CBAs in New Zealand allow the best and most famous athletes to negotiate greater compensation while promising basic (agreed) salaries to all the players.
The issue, however, with the aforementioned exception is that the whole reasoning of the collective gets dented. Once compensation is made flexible, other subjects of the collective bargaining agreements might just fall in the pit of flexibility. This will hinder the exclusivity aimed by the collective bargaining agreements.
Hence, policy initiatives to encompass remuneration of superstars, while keeping all them satisfied, are necessary. In the author’s opinion, the flexibility to reshuffle individual compensation is a slippery slope but is a positive for the game en masse.
3. The Tussle between Labor Laws and Competition Laws
a) The United States of America
The tussle betwixt competition laws and labour laws is characteristic. While competition laws endorse a lawful clash among competitors, labour laws call for coordination among them.
In the US, post the formulation of the Sherman Antitrust Act, judges treated labour unionization as an unlawful constraint on commerce. Later, the Norris LaGuardia Act and the Clayton Act provided statutory exemption to unions. The federal courts have highlighted that labour unions aren’t schemes against competition and commerce.
However, the process of collective bargaining was still not in convergence with the competition laws. To deal with the loophole, the judiciary fashioned non-statutory exemption.
The courts stated that it was pretty hard to make employers and employees negotiate collectively and prohibit them from indulging in anti – competitive practices. Yet, certain constraints can be placed on competition laws to make sure apt collective bargaining takes place.
The federal judiciary has underlined the need for competition laws to make space for collective bargaining when needed. Ergo, the solving of labour conflicts through collective bargaining was favored over antitrust laws. Notably, it was in 1992 when it was explicitly stated that the aforesaid exemption shields the CBA against competition law issues.
Later, in Powell v. NFL, it was established that the exemption covered the employers’ one-sided execution of the provisions of the CBA, including free agency restriction clauses, after the CBA has terminated. Ergo, once begun, the process of collective bargaining lasts post the termination of the CBA as well.
In Brown v Pro Football, after the expiration of the CBA, the NFL one-sidedly executed their last-best deal. The athletes contested this under antitrust laws. However, the judges stated that the exemption shelters the conditions even after the termination of the CBA.
Logically, Brown v. Pro Football has been treated as the jurisprudential successor to Powell v. NFL. Scholars have argued that continuing with the last, best deal is synonymous to preservation of the status quo. Thereafter, it has been argued that suit under competition laws to contest the application of the last offer will hinder the stability betwixt the players and the governing body.
However, a breakdown of the collective bargaining association ends the exemption. Here, the NFL Players Association disbanded its union and thus, obtained access to competition laws.
Thereafter, the affected athletes brought a competition law suit against the NFL. The disbandment of the union was treated lawful and thus, the collective bargaining association betwixt the league and the union was lost. Therefore, the non – statutory labour exemption was dismissed. Conclusively, it was held that the league’s free agency restriction went against the essence of completion law and the athletes were awarded appropriate damages.
Thereafter, America sports witnessed an all growing tussle betwixt the antitrust laws and the employment laws. The league owners would lock out athletes whereas the athletes would disband union and bring competition law suits against the owners.
Particularly, after the 2010-11 negotiations, the players reached out to the district court claiming that the lockout of players was a manipulative mechanism to force the athletes to settle at a price chosen by the league owners and fall in line with the free agency restraining provisions.
Additionally, the athletes highlighted that unionization bound the players by giving the league owners a loophole to implement exploitative limitations on athletes at their will. Furthermore, an injunction against the lockouts was sought by the athletes as the league had locked out the players.
The NFL owners modelled 3 layered argument: Primarily, the judiciary was not authorized to end the lockouts as per the Norris-LaGuardia Act. In arguendo, the owners explained that the lockout was invulnerable to competition law issues as per the non – statutory exemption. Lastly, it was stated that as per NLRB v. Truck Drivers Union, the concept of defensive lockout was upright because it was in line with labour policy of maintaining pre-achieved balance between the parties.
Resultantly, the court refused to buy into the owners’ reasons and lifted the lockout. The judges stated that labor laws were valid at times when the issue included or generated from a labor dispute. If the members reject the union, strip away its bargaining power and advance separate negotiation offers, then the labor laws of the country will not be applicable.
Drawing from the aforesaid argument, the judges stressed that Norris LaGuardia Act and its provisions regarding restriction on ending lockouts was relevant only to labor law issues. With the disbanding of the player’ union, the case did not qualify as a labor law issue. Additionally, the haphazard usage of the labor laws to undermine the rights of the employees by normalizing anti – competitive practices was shunned. Moreover, the court put emphasis on the fact that the non – statutory labor exemption was not pertinent as the union and the bargaining process did not exist altogether.
Later, the court pointed the age – old rule that the labor rules prevailed over the relative competition policy in specific situations where, inter alia, the exemption revolved around compulsory issues of the negations during the collective bargaining process. As the lockout did not form a part of the compulsory issues, the relevance of the non – statutory exemption was nil.
Afterwards, the 8th circuit overturned the lower court’s judgment. The order of the district court lifting the lockouts was withdrawn. It was stated that no law mandated the presence of a union for the dispute to be regarded as a labor dispute. The court found it convenient on the players’ part to disband the union in order to undertake a competition law dispute.
Secondly, the court clarified that the Norris – LaGuardia Act’s provisions about anti – injunction safeguards were not formulated for the exclusive interest of the workers/unions. Thus, the court opined that the Norris – LaGuardia Act did actually forbid a federal court from giving an injunction banning the employer from executing a lockout against the workers.
Finally, the league and the players decided to resolve the dispute and the athletes restructured the union with the parties entering a new CBA.
The NBA has witnessed very similar disputes but the cases were resolved amicably and the parties entered a new CBA.
In Europe, the most significant characteristics of competition laws related to the subject matter are
1. The ban on practices hindering competition
2. The bar on abuse of dominant market position
The European competition law forbids any kind of agreement among entities that hinders competition unless such agreement encourages commerce, assists the customers and takes the essential restraints into account. However, with regards to abuse of dominant status in the market, no exceptions are available. This provision has 3 primary components:
1. A dominant position in the relevant market
2. Exploitation of the dominant position by the entity
3. Consequence borne by the industry
There is little debate regarding the presence of a dominant position in any particular sport: The regulating or governing authority has monopoly in the market.
Nevertheless, similar to America, CBAs are partly protected against competition laws. In 1999, the court looked into the tussle between Competition Law and Collective Bargaining process. In Albany International, the judiciary held that exemption given to CBAs is valid only if it revolves around the essential elements of the CBA like remuneration/working conditions. The rationale behind the same is that the aforementioned elements do not distress any 3rd entity and do not affect the market. Here, the existence of multiple parties to the bargaining process shows that the CBA might disturb 3rd parties and therefore, not fall in the ambit of the exemption.
For instance, the FOM enters into broadcasting agreements with few agencies. Notably, there exists an exclusive employment interconnection among the FIA, the formula one teams and the FOM. Ergo, rival broadcasting agencies come across an air-tight obstruction when they try to cover the sport. Here, a grievance under Article 102 would be easier to establish due to the dominance enjoyed by the governing or regulating authority.
With regards to the UFC, insurance was a long drawn collective demand by the athletes. In 2011, Zuffa insured all MMA fighters participating in UFC. However, the said insurance policy wasn’t a segment of the CBA. If the insurance arrangement was made through a CBA, then the Albany International would have been applicable because such an arrangement would have hindered competition by stopping rival insuring companies from contracting fighters. However, the UFC could take the stance that the Albany exemption applied to the situation and was an agreement betwixt the employer and employee revolving around basic working conditions.
Additionally, scholars have underlined the need to consider the distinct nature of sports. Ergo, even if the prevalent exemptions are not applied, numerous factors of the sporting industry like coordination among more than 2 parties, societal and scholastic features, the need for indecision vis-à-vis the outcome and the sole authority of the governing / regulating body must be taken into account.
Notably, there should be adequate room in the competition policy to consider, inter alia, societal, historical and financial aspects of the sporting industry as its unique features. However, in order to smoothen the process and make sure that no law is compromised in a biased manner, the authorities have laid down certain tests to administer the application of Competition law to the sports industry.
Ergo, there exists little doubt against the belief that competition laws act as the biggest shackle to the process of collective bargaining in sports. Nonetheless, a distinct approach as highlighted in the case of Meca – Medina, is plausible. As stated before, this method acknowledges the advantages that CBAs could provide to the sport.
Conclusively, the issue of CBAs in sports continues to post moot questions. In the authors’ opinion, CBAs can be altered to be advantageous to professional sports. And, while dealing with application of competition law to sports, a novel method can be adopted wherein the unique characteristics of the industry are taken into account.
It is no news that the amalgamation of rules and statutes governing professional sports and the process of collective bargaining do not even come close to an overlap. Although the benefits of implementing the process of collective bargaining in the sports industry are clear, the ambiguity in law highlights that there still exist moot issues which seek attention.
Captivatingly, the unique nature of sports has made sure that the collective bargaining process locks horns with numerous laws. While the problems generating from the confluence are unique, they can still be worked around.
The presence of more than two parties to the bargaining process is being seen as a needed division of power for the past few years and has become common in many fields. Additionally, the problems with multi party bargaining can be taken care of through tripartite agreement. Additionally, within a collective bargaining agreement, if some flexibility to the bigger stars of sport helps them remain in the game and aids the newcomers and weaker players to attain better deal, then there is little harm to the process. Moreover, antitrust issues are fit enough to determine some common ground with the collective bargaining process: Recent judicial decisions have highlighted the same. Ergo, collective bargaining is bound to remain and mature in the industry of sports.
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Poverty can be addressed through healing touch of law: MP HC issues directions for implementation of poverty alleviation schemes
In a well-written, well-articulated, well-reasoned and well substantiated judgment titled Omnarayan Sharma Vs State of MP & Ors in W.P. No. 1930/2020 (PIL) that was delivered on July 6, 2021, the Gwalior Bench of Madhya Pradesh High Court has issued directions to the District Legal Services Authorities and the State Authority for ensuring implementation of poverty alleviation schemes promulgated under provisions of Legal Services Authority Act, 1987 and NALSA (Effective Implementation of Poverty Alleviation Schemes) Scheme, 2015. It must be apprised here that a Division Bench of Madhya Pradesh High Court comprising of Justice Sheel Nagu and Justice Anand Pathak have observed thus:
“Poverty, which is a Problem (Social Evil) can be addressed through Law (with its healing touch) as its solution to achieve the ultimate destination of Development.” It also must be mentioned here that the remarks came in a petition against alleged corruption and illegality committed by state authorities in construction of toilets under Swachh Bharat Mission in Bhind District.
To start with, a Division Bench of Gwalior Bench of Madhya Pradesh High Court comprising of Justice Anand Pathak who has authored this learned, laudable, latest and landmark judgment for himself and Justice Sheel Nagu first and foremost points out in para 1 that, “The present petition under Article 226 of the Constitution of India has been preferred by the petitioner as Pro Bono Publico projecting himself to be a public spirited citizen and has raised the grievance regarding illegality and irregularity committed by the respondents, especially respondents No. 6 to 13 who according to petitioner have not undertaken any enquiry over the complaint of petitioner regarding corruption / illegality committed in construction of toilets under Swachh Bharat Mission.”
To put things in perspective, the Division Bench then puts forth in para 3 that, “Precisely stated facts of the case are that on 31/12/2019, one Ramu Chaudhary, resident of village Etahar, District Bhind registered a complaint on Chief Minister Helpline Portal that Sarpanch, Secretary and other officers of the Gram Panchayat Ater, District Bhind have embezzled public fund in the name of construction of toilets but neither toilets have been constructed nor any amount for construction has been received by 93 beneficiaries. Despite making complaint by the petitioner on behalf of the beneficiaries to Collector, District Bhind no affirmative steps have been taken.”
While dwelling on the petitioner’s grievance, the Division Bench then enunciates in para 4 that, “It is the grievance of the petitioner that in other blocks of District Bhind also corruption and illegality have been conducted in construction of toilets under Swachh Bharat Mission. Petitioner placed the list of beneficiaries (94 in number) vide Annexure P/3, who did not receive the benefits of toilets nor any amount. Petitioner also referred the screen shot of app. (Pandit Deendayal Shram Seva App) to demonstrate that allegedly amount has been received by the beneficiaries but in fact bogus papers have been prepared and amount has been siphoned off.”
As we see, the Bench then puts forth in para 5 that, “Learned counsel for the respondents/State opposed the prayer and placed certain documents on record. It is the submission of learned counsel for the State that immediately after issuance of notice in this writ petition (on 27/8/2020), CEO, Zila Panchayat, Bhind vide order dated 14/1/2021 (Annexure R/1) constituted a committee to look into the complaint made by petitioner. He also
referred the show cause notice issued by same authority to then Panchayat Secretary, Gram Rojgar Sahayak and other Secretaries, who worked at the relevant point of time including the then Supervisor.
Therefore, as per respondents, enquiry is under process. Learned Government counsel assured this Court that due enquiry would be conducted and if any illegality or irregularity is found then same shall be taken care of earnestly and consequent action shall be taken as per enquiry report.”
Needless to say, after hearing learned counsel for the parties and perusing the record as stated in para 7, the Division Bench then lays bare in para 8 that, “This is a case by way of Pro Bone Publico; whereby, petitioner as public interest litigant raised the question of alleged illegality and corruption brewing in the Gram Panchayat Etahar, Tasil Ater, District Bhind regarding implementation of Swachh Bharat Mission Scheme, which is a flagship scheme of Government of India to solve problems of sanitation and waste management in India by ensuring hygiene across the country. Primary object of this scheme is to eliminate open defecation and improve solid waste management. In the challenging period of COVID-19 Pandemic cleanliness and public hygiene assumed much significance. Therefore, it is the solemn duty of the District and Local Administration as well as local self government to look into the effective implementation of this scheme.”
Simply put, the Division Bench then envisages in para 9 that, “National Legal Services Authority (NALSA) under the provisions of Legal Services Authorities Act, 1987 has framed certain schemes encompassing wide range of subjects and the compendium of the said schemes reflects one such scheme namely NALSA (Effective Implementation of Poverty Alleviation Schemes) Scheme, 2015. This scheme is built on the foundation that poverty is a multi dimensional experience and is not limited to the issues of income. Multi dimensional poverty includes issues like health (including
mental health), access to water, education, sanitation, subsidies and basic services, social exclusion, discrimination etc.”
Furthermore, the Division Bench then makes it clear in para 10 that, “Further, in identifying the specific scheme for implementation at the State and District Level, Legal Services Authorities as per NALSA are expected to be cognizant of the fact that various vulnerable and marginalized groups experience poverty in myriad and unique ways.”
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Be it noted, the Division Bench then points out in para 11 that, “To address this exigency faced by people the Scheme of 2015 as referred above has been conceptualized.
In the scheme, following topics have been discussed: Clause 4.-Objectives of the Scheme:-,
Clause 5.-Identification of Poverty Alleviation Schemes:-,
Clause 6.-Organization of Awareness Programmes:-,
Clause 7.- Legal Services Officers and Para-legal Volunteers:-,
1) Every District Authority and Taluka Legal Services Authority shall designate at least three panel lawyers as Legal Services Officers for
the purpose of this Scheme. 2) District Authorities shall constitute teams of PLVs under a Legal Services Officer to implement this Scheme and the Legal Services Officer will supervise and mentor the PLVs in his team to help the beneficiaries access the various schemes of the Govt.
3) District Authorities shall conduct specialised training programs for panel of lawyers, members working in legal services clinics, members of panchayats, law students and other para-legal volunteers to assist in the implementation of the Scheme, to sensitise them regarding the needs of persons belonging to socially and economically weaker sections and the benefits that they can avail through Poverty
Clause 8.- Legal Assistance for Access to Poverty Alleviation Schemes
Legal assistance must be provided to all the Scheme Beneficiaries seeking access to Poverty Alleviation Schemes. Legal Services to be provided by Legal Services Officers or volunteers under this Scheme includes, inter alia:
1) Informing the Scheme Beneficiaries about each of the Poverty
Alleviation Scheme to which they are entitled, and the benefits
2) Assisting the Scheme Beneficiary in procuring the documents
required for availing the benefits under any of the Poverty
3) Informing the Scheme Beneficiary of the name and address of the
designated authority or the officer to be approached for registration
under any of the Poverty Alleviation Schemes
4) Offering to send para-legal volunteers including from the legal
services clinics with Scheme Beneficiaries to the office of the
designated authority or the officer to be approached under any of the
Poverty Alleviation Schemes
5) Informing the Scheme Beneficiary of her option to register a
complaint with the Legal Services Officer or para-legal volunteer,
about any designated authority or officer under any of the Poverty
Alleviation Schemes who refuses to cooperate with the Scheme
Beneficiary in providing her access to the benefits that she is
entitled to under the Poverty Alleviation Scheme.
6) Maintaining a record of all the complaints received under sub-clause(5).
7) Providing Scheme Beneficiaries with the contact number, if
available, of the Legal Services Officer, and availability of the
Legal Services Officer on call during working hours for such Scheme
Beneficiaries to whom contact number is provided.
Clause 9.-Action by Legal Services Officers on complaints;
1) On receiving complaints under sub-clause (5) of clause 8, each
Legal Services Officer shall herself personally accompany the
Complainant Beneficiary to the office of the designated authority or
officer, and assist the Complainant Beneficiary in availing the
benefit that she is entitled to under the Poverty Alleviation Scheme.
2) In case the designated authority or officer fails to register the
Complainant Beneficiary in the Poverty Alleviation Scheme, the Legal
Services Officer shall submit a complaint to the District Authority.
The letter of complaint shall describe the conduct of the designated
authority or officer who refused to register the Complainant
Beneficiary under the Poverty Alleviation Scheme, and circumstances of
such refusal and whether refusal was despite submission of all
Clause 10.- Action by District Authority and State Authority on complaints:-
1) On receiving a complaint regarding the designated authority or
officer, the District Authority shall seek a report from the concerned
officer regarding the reason for denying the benefits under the
Poverty Alleviation Scheme to the complainant Beneficiary. In the
event that sufficient reason is not provided by the concerned officer
for refusal to register the Complainant Beneficiary in the Poverty
Alleviation Scheme or to provide benefits under the Poverty
Alleviation Scheme, the District Authority shall immediately
communicate to the superior officer in the department the details of
the refusal to provide access to the Poverty Alleviation Scheme.
2) If the superior officer, in the opinion of the District Authority,
also withholds the benefits under the Poverty Alleviation Scheme
without sufficient cause, the District Authority shall then
communicate the same to the State Authority.
3) On receiving such communication from the District Authority, the
State Authority may choose to further pursue the matter with the
concerned department or file appropriate legal proceedings to ensure
that the Complainant Beneficiary receives the benefit under the
Poverty Alleviation Scheme.
4) The District Authority, through para-legal volunteers or legal
services clinics, shall provide regular updates to the Complainant
Beneficiary about the status of the complaint.
Clause 11.-Evaluation of the Scheme:-
1)Every Legal Services Officer shall follow-up with each Scheme
Beneficiary who sought legal assistance under this Scheme and record:
a. if such person was able to register under the Poverty Alleviation
Scheme sought to be registered under and whether such benefits were
b. any grievances experienced by the Scheme Beneficiaries in getting
registered and availing benefits under the various Poverty Alleviation
2) The District Authority shall compile the observations made under
sub-clause (1) for all the Legal Services Officers working under the
Scheme in the district and shall send a copy of such observations in a
complied document to the State Authority every six months.
3) The State Authority shall consolidate the compiled documents
received from all the District Authorities under sub-clause (2) and
hold a meeting every 6 months to review the functioning and
effectiveness of this Scheme. The minutes of such meeting shall be
recorded and published as a public document.
4) If in the meeting under sub-clause (3) the State Authority finds a
substantive or procedural defect in any of the Poverty Alleviation
Schemes which makes seeking benefits under the scheme a problem for
the Scheme Beneficiaries, such defect must be brought to the notice of
the Central Government or the State Government as the case may be for
improving the specific Poverty Alleviation Scheme and / or its
To be sure, the Division Bench
then observes in para 12 that, “Perusal of the whole scheme indicates
that certain responsibilities have been bestowed upon the State and
District Legal Services Authorities to train the legal and para-legal
volunteers for providing legal assistance for giving access to
beneficiaries to Poverty Alleviation Scheme and to act upon the
complaints if the benefits have not been extended to him/her or if any
authority refuses to cooperate with the scheme beneficiaries in
providing access to the benefits.”
As it turned out, the Division
Bench then states in para 13 that, “As referred in the Scheme of 2015,
poverty is a multi dimensional experience and it includes basic
services including sanitation etc. and when a duty has been cast upon
Legal Services Authority as per the Legal Services Authority Act, 1987
and Scheme of 2015 then if any complaint is received by the Legal
Services Officer from complainant / Scheme Beneficiary then such
complaint like the present one can be taken care of by the District
Authority as per Clause (9), (10) and (11) of the Scheme of 2015 by
the District Authority and even by the State Authority.”
Quite damningly, the Division
Bench then minces no words to state in para 14 that, “It is being
experienced by this Court that many complaints come regarding poor
implementation, corruption and / or irregularities in Schemes like
MGNREGA and Swachh Bharat Mission regarding construction of toilets or
non-grant of amount to the beneficiaries for construction of toilets,
etc. and by way of Public Interest Litigation, people seek Continuing
Mandamus from this Court, whereas, provisions of Act of 1987 and
Scheme of 2015 are apparently also available to address such
Notably, the Division Bench then brings
out in para 15 that, “Clause 10(3) of Scheme of 2015 gives option to
choose between the Persuasion (with the concerned Department) or
Petition (to file appropriate legal proceedings). Here, appropriate
legal proceedings may include complaint before the Lokayukt, if it
comes under the purview of said Authority or private complaint against
the erring persons or to file a Petition on behalf of complainant
under Article 226 of the Constitution of India as Public Interest
Litigation. It can club cause of more than one beneficiaries also.”
In the present context, the
Division Bench then brings out in para 16 that, “Recently, Ministry of
Panchayati Raj, Government of India has undertaken steps in respect of
Online Audit and Social Audit of 20% Gram Panchayats’ in every Janpad
Panchayat and therefore, it appears that Government also intends to
make these Institutions more accountable which are having direct
bearing over day to day welfare of people at large. In pursuance
thereof, a circular has also been issued by Panchayat Raj Directorate,
Madhya Pradesh, Bhopal dated 17/2/2021 to all CEOs of Zila Panchayats
/ Janpad Panchayats to organize camps in this regard.”
Of course, the Division Bench then hastens to
add in para 17 that, “State Authority may contemplate about
preparation of one Software and Mobile Application ( Mobile App.) for
keeping a tab over the complaints received and their outcome. This
Software / Mobile App. may coordinate amongst the concern departments
so that complaints received over the said application (App.) would be
displayed all over. Concerned stakeholders and State Authority /
District Authority would be in a better position to proceed as per the
spirit of Act of 1987 and Scheme of 2015. State Authority even has
power to make regulations as per Section 29-A of the Act 1987 to
provide for all matters for which provision is necessary or expedient
for the purposes of giving effect to the provisions of Act.”
Quite scandalously, the Division
Bench then puts forth in para 18 in simple, suave and straight
language that, “Here, in the case in hand, it appears that certain
beneficiaries allegedly did not receive the benefits under Swachh
Bharat Mission about construction of toilets. As per the allegations,
neither toilets have been constructed by the concern authorities nor
amount has been transferred in their accounts and it is the
allegations that amount of 93 beneficiaries (or may be 94) has been
siphoned off by Sarpanch / Panchayat Secretary / Gram Rojgar Sahayak
etc. Allegations are prima facie serious in nature.”
Quite categorically, the Division Bench then
puts forth in para 19 that, “This Court cannot go into the
authenticity or otherwise of the allegations at this juncture
especially when CEO, Zila Panchayat is seized of the matter vide show
cause notices issued to erring officers / authorities in this regard.
Therefore, at this juncture, any observation would pre-empt the
controversy. However, Collector and CEO, Zila Panchayat, Bhind are
directed to look into the allegations with utmost promptitude and role
of concerned Sarpanch, Panchayat Secretary, Gram Rojgar Sahayak,
Supervisor and any other person involved in the transaction / or
having any responsibility under the Swachh Bharat Mission Scheme
failed or acted mischievously be enquired into in accordance with law.
If any conclusion has not been drawn in the enquiry up till now then
enquiry be conducted expeditiously within two months from the date of
passing of this order and outcome of the enquiry be intimated to the
office of this Court and office shall place the matter under the
caption “Direction” for perusal of this Court and even if conclusion
is drawn then consequential follow up action be informed to office of
Significantly, the Division Bench then
directs in para 20 that, “Before parting, this Court feels it
appropriate to give direction to the District Legal Services Authority
to update the contents of different schemes promulgated under the
different provisions of Legal Services Authority Act, 1987 including
the Scheme in hand i.e. NALSA (Effective Implementation of Poverty
Alleviation Schemes) Scheme, 2015 and ensure that in their respective
jurisdiction (District) Poverty Alleviation Scheme especially Swachh
Bharat Mission Scheme and Mahatma Gandhi National Rural Employment
Guarantee Act, 2005 (MGNREGA), etc. are being properly executed and
intended beneficiaries get the benefits of the scheme and if any
authority refuses to cooperate with the beneficiary in providing him /
her access to the benefits that she is entitled to under any Poverty
Alleviation Scheme, then the responsible authority under District
Legal Services Authority (DALSA) shall proactively take care of the
situation by proceeding as per Clause 9, 10 and 11 of the Scheme,
More significantly, the Division Bench then further directs in
para 21 that, “It is further expected from the Authority and its
Office Bearers that they shall constantly organize awareness
programmes as well as training programmes for Panel Lawyers / Legal
Volunteers / Para-legal Volunteers as the case may be in a
constructive and proactive manner. The training must sensitize the
volunteers / activists to the notion that they have to act as Healers
of the Society looking to the great responsibility bestowed upon them
of Poverty Alleviation. Poverty, which is a Problem (Social Evil) can
be addressed through Law (with its healing touch) as its solution to
achieve the ultimate destination of Development.”
Most significantly, the Division
Bench then also directs in para 22 that, “In view of aforesaid
discussion, this Court summarizes the following directions:-
(i) If, any complaint is received regarding inaction, inappropriate
execution, corruption or any matter related thereto which comes under
the purview of Legal Services Authority Act, 1987 and NALSA (Effective
Implementation of Poverty Alleviation Schemes) Scheme, 2015 then
District Legal Service Authority (DALSA) shall proactively take care
of the situation by proceeding as per Clause 9,10 and 11 of the Scheme
(ii) State Authority / District Authority may file appropriate legal
proceedings as per Clause 10 (3) of Scheme of 2015 by way of complaint
before the Office of Lokayukt as per relevant provisions or may file
Private Complaint against the erring persons or may file a petition if
subject matter requires so by way of a Public Interest Litigation
under Article 226 of the Constitution of India;
(iii) State Authority is requested to contemplate for framing of
suitable regulations as per the provisions of Act of 1987, especially
under Section 29-A for effective implementation of different schemes
of Government of India / State Government fall under NALSA (Effective
Implementation of Poverty Alleviation Schemes) Scheme, 2015. A further
request is made to contemplate about preparation of a Software /
Mobile Application (Mobile App.) for keeping a tab over the complaints
received and their outcome; and
(iv) District Authority and its Office Bearers are expected to
regularly organize awareness / training programmes for Panel Lawyers /
Para-legal Volunteers in a constructive and proactive manner to
sensitize them with the notion that they have to act as Healers of the
Society, looking to the great responsibilities bestowed upon them.
Secretary, SALSA shall coordinate and guide all such awareness /
Moving on, the Division Bench then
holds in para 23 that, “Consequently, petition is disposed of with a
direction to the respondents especially Collector and CEO, Zila
Panchayat Bhind to look into the matter and complete the enquiry, if
not already completed within two months from the date of passing of
this order and if any person is found guilty then consequential follow
up action shall be ensured in accordance with law. If the enquiry is
already concluded then Collector and CEO are directed to place the
enquiry report before the office of this Court so that same can be
placed before this Court for perusal.”
On a final note, the Division Bench while disposing of the petition as stated in para 24 then holds
in para 25 that, “A copy of this order be sent to Principal Secretary,
Panchayat Raj, Government of Madhya Pradesh, Bhopal as well as to
Member Secretary, SALSA, Jabalpur for circulation to all District
Legal Service Authorities (DALSA) for sensitization and implementation
of the concept as referred above by this Court.”
It merits no reiteration that the District Legal Services Authorities and the State Authority must
comply with this brief, brilliant, bold and balanced judgment by a
Division Bench of Gwalior Bench of Madhya Pradesh High Court
comprising of Justice Anand Pathak and Justice Sheel Nagu so that
poverty can be addressed through healing touch of law as has been
directed also. All such measures if implemented honestly in letter and
spirit then it will certainly go a long way in emancipating the
‘poorest of the poor’ which is the crying need of the hour also! There
is no reason why they should not be implemented at the earliest. It
certainly brooks no more delay anymore!
Sanjeev Sirohi, Advocate,
TWAIL: Historical approach to understanding international law
Today, the ‘Third World’ country is the term first used by Alfred Sauvy in 1952 which now has come to denote a country which can be categorized as a ‘developing’ country. However, the origins of this term can be traced to the World War/Cold War period when Third World signified the countries who were non-aligned; neither part of the ‘free world’ nor of the ‘communist world’. Scholars vouching for the Third World Approaches to International Law (TWAIL) have stressed on the importance of using the original terminology of ‘Third World Countries’. Global South is another term frequently used as a synonym for Third World countries. The terms North and South emerged during the 1970s but till today no strict definition thereby questioning geographical preciseness of this term.
The Asian-African Conference held in Bandung organised by Egypt, Indonesia, Burma, India, Pakistan, Sri Lanka in 1955 was where Indian PM Jawaharlal Nehru rejected both sides in the ongoing cold war and propounded a principle of ‘non-alignment’. This led to the birth of Non-Aligned Movement (NAM) in 1961. This along with the Organisation of Petroleum Exporting Countries (OPEC), Group 77 shows the building momentum among the Third world countries against the supremacy of the First and Second world countries. Further a rebellious attitude was also shown by the Third World reflected in its calls for a New International Economic Order (NIEO).
TWAIL has undertaken study of international law, its global history, role of international lawyers within the international order, importance of social movements, indigenous people, migrants etc. with a background of such previous organisations who came together with a common agenda. TWAIL has stood as a check to the Eurocentric approach taken by international law over the years. And accelerated efforts to balance out the asymmetries of power. According to Gathii, “TWAIL is a discipline in transition, expansion, definition and internal contestation about the varied agendas of its scholars, all at the same time.” Balakrishnan Rajagopal’s work brings light to the resistance that TWAIL projects to safeguard interests of the third world.
TWAIL was born in 1996 at Harvard Law School when group of students came together to discuss whether if taken a third world approach to international law what might be the major obstacles. The group consisting of Celestine Nyamu, Balakrishnan Rajagopal, Hani Sayed, Vasuki Nesiah, Elchi Nowrojee, Bhupinder Chimni and James Thuo Gathii coined the name of the group as ‘Third World Approaches to International Law’ (TWAIL). Antony Anghie and Chimni coined the terms ‘TWAIL I’ and ‘TWAIL II’: the former consisting of first generation post-colonial and the latter taking cues and developing further scholarship. The struggle of TWAILers II, III, IV and beyond – is to deal with the vestiges of ‘formal’ empire and expanding multi-dimensional forms of ‘informal imperialism’.
APPROACHES TO TWAIL
While discussing about the approaches within TWAIL, Gathii mentions critical, feminist, post-modern, Lat-Crit Theory (Latina and Latina Critical Theory Inc.), postcolonial theory, literary theory, modernist, Marxist, critical race theory among others. With these approaches what is studied is hegemony of dominant narratives along many axes– race, class, gender, sex, ethnicity, economics, trade, etc – and in inter-disciplinary ways – social, theoretical, epistemological, ontological and so on. Gathii discusses some coordinates; strictly refraining from calling them as principles as TWAIL scholarship has always been proposing for an ever-changing methodology and international order. It terms the coordinates as:
History matters: Importance here is given to how history has shaped the current geo-politics. Taking into account history, TWAIL scholars envision to build a south oriented framework for international order.
Empire moves: Imperialism cannot be only located in the country of the British. From local to national, public to private, ideological to material; Empire is traced in each of the components of nation and human life. This coordinate helps the TWAIL scholars to trace the colonial power and its fangs.
South moves: As the North moves, the South also is a term which is dynamic according to local specificities, regional trends, and larger changes to the global economic and political system.
Struggle is multiple: TWAIL is engaged is one fought on multiple fronts and on a diverse and shifting terrain. Thus, TWAIL is a discipline in transition, expansion, definition and internal contestation about the varied agendas of its scholars, all at the same time.
Struggle is here: TWAIL scholars, therefore, the struggle remains, and must remain, always there, and always here. It is, and must always be, about present ‘tactics’, and about a longer ‘strategy’.
CENTRAL THEMES OF TWAIL
As Karin Mickelson argues, history is the most fundamental element of a third world approach to international law. What is important to note here for TWAIL scholarship is the emphasis on seeing international legal history ‘as something alive than dead.’ Makau Mutua’s provocative thesis about redrawing the map of Africa because of the colonial illegitimacy of current borders is yet another example of seeing international legal history as relevant to and constitutive of the present rather than as a relic of the past. Antony Anghie’s book Imperialism, Sovereignty and the Making of International Law, (2005) is the leading TWAIL text revising mainstream international legal history tracing of continuities of coloniality in modern international law.
According to Vikrant Dayanand Shetty, “the ‘post’ in ‘postcolonial’ does not refer to ‘after period of colonialism’ or ‘triumphing over colonialism’ but to the ‘continuation of colonialism in the consciousness of formerly colonized peoples and in institutions imposed in the process of colonization.’” Examples of colonial continuities include, the composition of the UN Security Council, with five veto-wielding Permanent members; the weighted system of voting in the Bretton Woods institutions that gives the world’s richest economies the power to set the economic agenda of the former colonial countries; the rules of customary international law such as pacta sund servanda that bind former colonialized countries to comply with treaties even though they took no part in their formulation or formation; and the fact that self-determination retained the subordinate and dependent position of third world elites to their former colonial powers and to multinational capital interests.
Chimni analyses that, “Today, international law prescribes rules that deliberately ignore the phenomena of uneven development in favor of prescribing uniform global standards.” TWAIL recognises that the domination that US and Europe had over former colonies is in practice till date. In India, it can be seen in the fact that since the British left, we haven’t yet let go of the legal structure that the empire had built for us. India is also still in grips of the Macaulay’s system of Education. She has adopted the foreign terms like ‘secular’ in her constitution, ‘English’ as the official language, morals as per the Christian teachings. As India westernized, she also inherited such institutions which today can be called as the ghosts of the Empire. This has led to many TWAIL and other Indic scholars to question whether since independence has India ever been free. Chimni reiterates that the civilizing mission that the colonisers were on is the same mission with which they are using international law to rehabilitate and govern third world countries especially Africa; thus, legitimizing and justifying both the forms of colonial attitudes. He says, “humanitarianism is the ideology of hegemonic states in the era of globalization marked by the end of the Cold War and a growing North South divide.” This concept of the ‘civilizing mission’ has provided the moral basis of exploitation of the Third World. However, this exploitation, when administered by the colonial power, is legitimate because it is inflicted in self-defence, or because it is humanitarian in character and indeed seeks to save the non-European peoples from themselves. Less is discussed in mainstream international forum on the holocaust that the Victorian Empire committed on the citizens of India. Indian soldiers fought for the British in both World wars; 60,000 sacrificed their lives in world war I itself; she was the second largest contributor to Empire’s War in the 1940s; she bore the brunt of Churchill’s horrifying war policies which aggravated the already existing famine conditions. 5.4 million Indians according to Madhushree Mukherjee were killed amounting to war crimes justified under the garb of colonialism. She writes in her book ‘Churchill’s Secret War’, “if provisions protecting civilians had been in place before the war, the denial policy and the failure of His Majesty’s Government to relieve the famine could conceivably have been prosecuted as war crimes.”
TWAIL has failed to produce a single authority but has stirred the waters of international law with the ladle of colonial history. James Thuo Gathii also acknowledges the criticisms levelled against TWAIL on the basis of it being anachronistic, nihilistic and lacking methodological clarity. Secondly, its own critical attitude has been accused of being baseless. The absence of hierarchy and authority has given rise to flexible and fluid ways but has also proved as a disadvantage to organize the movement effectively. However, TWAIL is not a mere deconstructive and oppositional movement or network of scholars, but rather one that sees the potential of reforming if not remaking international law for the greater good. It also questions some third world countries and hence cannot be alleged to have been assuming innocence of these countries.
For the first time in history, emerging economies are counterparts on more than half of global trade flows, and south–south trade is the fastest-growing type of connection. South–south and China–south trade jumped from 8 percent of the global total in 1995 to 20 percent in 2016. Emerging economies, led by China and India, have accounted for almost two-thirds of global GDP growth and more than half of new consumption in the past 15 years. The founder of TWAIL Gathii has expressed that TWAIL-ers have transcended boundaries. There have been efforts from non-third world living scholars along with third world living scholars. He calls it a decentralized network which has been given exposure across not only in academies but also as course leaders, council members, etc. Some suggestions toward a new economic world order on the basis of TWAIL are to increase transparency and accountability of international institutions; increasing sensitivity towards problems of the third world; accepting that the solutions applied to western countries aren’t the exact solutions for third world problems; indigenous culture to be used to maximise the reach of international principles; Human Rights should be interpreted by keeping an account of the conditions of the third world countries; accepting that other than minority and acknowledged class there can be oppression of majority in such countries too; Ensuring Sustainable Development With Equity. Such suggestions to make international law more sensitive, equitable and far-reaching can be done only with the help of TWAIL. TWAIL scholars from and outside third world countries need to undertake this task and make the other side of the narrative aware of their side. Ramping up needs to take place since the third world countries are the future of tomorrow.
Analysing Article 21, humans rights and individual freedom
“Death must be beautiful. To lie on soft brown earth, with grasses waving above one’s head, and listen to the silence. To have no yesterday, no tomorrow. To forget life, to forgive life, to be departed.”
– Oscar Wilde
The grimace compounding the affliction implicating faith & culture economizing on the despair from the clutches stands out to be a serene sojourn. The complacency in setting to work the health crisis nonetheless politics has doomed the fraternity squandering the attainment. People & their rights must be magnanimous at front & centre. Dignity in casualty is recognized around the world. The cremation of the dead bodies in Covid-19 is not an easy tribulation. The Hygiene Protocols ambling wrapping dead bodies to discerning handing over the bodies to the families increase the efficacy of transmitting body fluids. According to the World Health Organisation plebeians intimidated of their emancipations incarcerated are prone to getting tremendous exposure. The scale of devastation brought on by the second wave of Covid continues to snuff out lives, upend healthcare systems & dwindle the economy broke out with negligence, callousness evincing response as people reckoning with the grief of catastrophe that’s still unfolding.
Emotions Coexist as they aren’t linear or unitary bringing about guilt unobtrusive on some days & overbearing on others. Losing a beloved one is one of the extensively gruelling situations even under the best of episodes. Every congregation brings into the world its sermon to soothe the concussion, Hindus gathering to burn carcasses along the Ganges River to the Jewish folklore of amassing solace at shack during a seven-day mourning stint, Islamic legislation, as in many kith & kin surmises, the management of uneventful is the theme of distinct policies that strive at pledging the elegance and deference of the dead as well as for their living comrade. The disposition and swivel scale of the prevailing pandemic, however, has concocted miscellaneous qualms, asceticism, and straight rumours in Muslim-majority states as well as for Muslim communities around the realm. Oftentimes bar and the legal sorority have beefed up the liberties which are equated to dead soul from stature of the dead person to decent interment. Anticipating the incessant phenomenal pestilence “COVID 19”, the situation has become very catastrophic, and the conundrum of this dilemma makes it a more chaotic one. The horrendous and ungrammatical crisis of sufferers and dead bodies provoke the compunction of the very validity of rights that are functional to dead persons in the glimmer of the status quo.
STANDPOINT: HUMAN RIGHTS & FEDERAL LAW
Human dignity reinforces the right to life in portion the state has an optimistic obligation to insulate & respect life. The Rights are extensive, interdependent & mutually supplementary.
Humanitarian organisations especially the Red Cross (ICRC) evolved a compatriot & drudged knack in disaster supervision and tragedy riposte, catastrophe vindication, and humanitarian forensics. This experience is amassed from quite 150 years of operating in conflict zones and from an operative composure in additional 90 countries, mounting the ICRC to fetch effective recommendation and attend to state authorities & (NSAGs) in the retort to the getaway. UDHR ascribes kinsfolk subsist to be put up with autonomous and equal in dignity and rights” (Article1). These rights are “inalienable” to every person. The Human Rights Convention are for infractions of the treaties outlined in the testimony, while the assertions can be bought in by any victim of the violation a defunct person cannot do the same. The resolution 2005 on human rights & forensic science played up the primacy of distinguished human remains antidote, acclimating adequate composure & discarding similarly as of reverence for the clans’ desire. Geneva Convention 1949 certifies everyone to the dispute forthwith foster the deeds seized to patrol the annihilated – counteracting ill-treatment.” Even in modern days, international humanitarian legislation puts up to corroborate that even during the crossroads of war and conflict; the dead bodies of the combatants are not disdained out of vengeance and enmity. International Human Rights Law recognizes discretion on rights neither arbitrary nor discretionary based on scientific testimony. The convention I of Geneva (Article 17), Convention III of (Article 120), Convention IV (Article 130), Article 8 Additional Protocol II, Cairo Declaration Article 3 on Human Rights & other relevant legitimate instruments, furnish for the honourable entombment of the combatants and prisoners of war. The veneer of the lifeless person ought to be cherished even during the times of crusade & discord, there could be no justification to divest an individual who withers in the eternity of peace of the identical right of a respected burial and funeral rites, which the person would have otherwise been entitled to, if not for the pandemic.
According to Cal Health “Cremation” ensues in three strides the constriction of the core of a bygone human to its indispensable components via immolation, transferring or the body during incineration to elicit the system, processing of the remains after exile from the funeral courtyard. “In a country statute which stymies the establishment or upkeep in any one township of surplus than one crematory for the cremation of mortal cadavers cannot be bolstered as a police measure as against a cemetery association located near another crematory and in close proximity to several cemeteries and in a neighbourhood where there are, but irregular dwelling-houses and no buildings devoted to any business except that of burying the dead.”
PLUGGING GAPS OF CONSTITUTIONALITY: DIGNITY IN DEATH
The pestilence hasn’t only exemplified spirit, security and financial crisis, yet a crisis of conviction in the decisive crusade of humans. The Right to Life being an inclusive concept, affirms no soul shall be pillaged of life or liberation or property befitting mulled over the spectrum of Article 21 by insinuating the medication of cadavers in the additional terms – “The perspective of repudiation whacked by Article 21, whether such deprivation is permanent or temporary.” Life sans status is an icky debacle & verve that congregates cessation with dignity is a virtue to be yearned for and a juncture for celebration”.
Article 21, the kick pin of all other rights renders no soul ought to be knocked off of life or liberty by dint of the ‘procedure’ recounted in Article 21 has been skimmed into the ‘due procedure’ by the Supreme Court and implied treatment must be fair, just & reasonable. Over the epoch, the Supreme Court has deciphered Article 14 & 21 to entail myriad privileges within its ruffle.
The Apex Court adduced quoting that illustrated “life” in additional words: “Something more than mere animal existence. The inhibition against its forfeiture amplifies to all those limbs and faculties by which existence is relished. The overhead equally hampers the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul articulates with the outer world” congruently conserving the term ‘life’ meant the freedom to dwell with grace & the analogous embargoing stalled drudgery. The Article flexures “some of the finer graces of benevolent refinement, which propels life worth living” & an intensified notion of cinch may credit “society” of the apprehensive person. Eventually, dignity isn’t the sole sleuth to a living man but after his demise was put as deposition by the Supreme Court has been overstepped in Satyama Dubey v. U.O.I.
Further, the court ratified the diverse undertakings stripped away by the Police and the local body for procuring an adequate crypt to an abandoned dead person, according to the pious morality to which he belonged. The petition was disposed of based on affidavits. The hegemonies, & culture, the indistinguishable compassion with which a living being is anticipated to be cared for, should also be magnified the ones who are dead”. Praxis and heredity stances are innate to the ultimate ceremony of an individual’s vivacity. The decent interring is sketched in Article 25 that waives for leeway of conscience & autonomous profession, practice and propagation of faith subject to civil declaration, righteousness & vigour in Part III of the Constitution. Regime edicts overriding canonical practices for lifeless torsi should in no way be deemed discriminatory but must be a commensurate standard to impede disorders and casualties on the pretext of the virus, while simultaneously assuring public protection and economic wellbeing of India.
Please read concluding on thedailyguardian.com
It is vital to think back that is ephemeral and is the modus Vivendi to steering the ragged waters of rash, individually but concurrently.
The contemporary catastrophe dissembles as a spur transgressing the rights of a lifeless person despite on fleek backing of the legal bracket. The Conclusions sound prettier than the present is as the crisis is deep & has led to reports of untold human grief. Death has taken its toll as the health system crumbles the lives could be saved however policy stiffness cropping up blazing pyres shaping the vicinity between the living & the dead. A two-pronged strategy effectuating even-handed botch vaccine allotment must be carried out & tapering off SARS COV 2 transmission whilst the vaccine is rolled out.
Modern technology and challenges over privacy: An analysis
Privacy has always been concerned in this technical era. On one hand, where it has been simplified our life, on the other hand, it has always been questioned over Privacy. Once again the privacy concern has become a burning and sensational topic which is being discussed around the globe. Recently, an investigation by international media has revealed that more than 50,000 phone numbers across the globe have been targeted for hacking through the spyware called ‘Pegasus’, which has been developed by the Israeli firm NSO Group. Furthermore, Over 300 Verified phone numbers used by ministers, opposition leaders, journalists, the legal community, businessmen, government officials, scientists, rights activists, and others, were targeted using this malware.
It has once again called the regulations for surveillance in India. In India, Communication surveillance takes place primarily under two laws one being the Telegraph Act, 1885 and the other being the Information Technology Act, 2000. On one hand, The Telegraph Act deals with the interception of calls, while on the other hand, the IT Act deals with surveillance of all electronic communication. Although, it is also notable that India still lacks a comprehensive data Protection law to fill the gaps in the existing frameworks for surveillance.
LAWS REGULATING SURVEILLANCE IN INDIA.
Telegraph Act, 1885
Section 5 (2) of the Telegraph Act states that “On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order….”
Under this provision, the government has been authorised to intercept calls only in certain situations like when it is in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states or public order, or for preventing incitement to the commission of an offense. Moreover, an additional proviso under section 5(2) states that this lawful interception can’t take place against journalists provided that “press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.”
Hon’ble Supreme Court while dealing in the case of Union for Civil Liberties v. Union of India (1996), finds the absence of procedural safeguards in the provisions of the Telegraph Act. In the same judgment, the Hon’ble court also laid down certain guidelines for interceptions. The court observed that authorities who are engaged in interception were not even maintaining adequate records and logs on the interception. Furthermore, the court also states that “Tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated communication technology, the right to a sold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of Subrosa operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by the authorities of the day”. The guidelines by the Hon’ble Supreme Court formed the basis of introducing Rule 419A in the Telegraph Rules in 2007 and later in the rules prescribed under the IT Act in the year 2009.
IT ACT, 2000
Furthermore, to address electronic surveillance, Section 69 of the Information Technology and Information Technology (Procedure for Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009 were enacted. Under the IT Act, all electronic data transmissions are permitted to be intercepted. So, in terms of the Pegasus spyware, it may be legal. Both the IT Act and the Telegraph Act would have to be invoked by the government. Furthermore, in addition to the restrictions imposed by Section 5(2) of the Telegraph Act and Article 19(2) of the Indian Constitution, Section 69 of the IT Act adds another dimension that broadens it — interception, monitoring, and decryption of digital information “for the investigation of an offence.”
Significantly, it does away with the condition precedent established by the Telegraph Act, which requires “the occurrence of a public emergency in the interest of public safety,” broadening the scope of powers under the law.
IMPACT OF SURVEILLANCE
There are plethoras of examples in this world where personal data are misused for many different reasons. Many people and organizations are under surveillance which is vocal and takes active participation against the criticism of the ruling political party. These things make us understand the impact of surveillance on our freedom of privacy, freedom of speech, and expression and curtail our fundamental rights. Surveillance poses threat to press freedom. The World press freedom index published by Reporters without borders ranked India 142 Out of 180 countries in the year 2021. The press needs greater liberty on privacy and speech because these two enable good reporting. They secure journalists against the threat of government reprisal against honest reporting.
A report on Privacy rights and protection was published by Forrestor, an American company in the year 2019, In India, the laws which allow the government to conduct surveillance over its citizens are very clearly undermining the laws related to the data privacy to its citizens. In the case K S Puttaswamy v. Union of India, the Hon’ble Supreme court of India held that the right to privacy is a fundamental right that comes under the domain of articles 14, 19, and 21 of the constitution but there is a lack of data protection law in India. In absence of this kind of law, it becomes just an executive order which allows the agencies to encroach on the privacy of their citizens. Also, it is very important to note that people who are under surveillance are unaware of the fact that agencies are monitoring them. In the absence of privacy laws, the security of journalists whose work criticizes the government and their safety is jeopardized. In the case of Ritesh Sinha v. State of Uttar Pradesh, the Apex court held that the right to privacy is not an absolute right, it is also subject to restrictions as with other fundamental rights. It was asserted that the right to privacy is not absolute and must bow down to compelling public interest. We still need a number of judicial pronouncements to determine how the right to privacy operates in a practical scenario. Since there is a lack of Judicial pronouncement, the court relies on the German principle “test of proportionality”. This test is used by different countries for the determination of conflicting rights. The Hon’ble supreme court has applied this principle in various cases such as Chintaman Rao v. State of Madhya Pradesh, state of Madras V. V.G. Row, etc to balance between the rights and limitations. In this principle, there are four stages to determine the balance of rights and limitations. The legitimate goal stage, suitability, necessity stage, and balancing stage that help us to strike balance between the two. But this is only effective when a particular case comes under the cognizance of court.
The Surveillance uproar the spread of Authoritarianism in the government system because the executive uses excessive power on the citizens and impacts personal lives. When it is carried out entirely by the executive curtails article 32 and article 226 of the constitution as it happens in secret and thus affected person is unable to show their breach of rights. This not only violates the ideals of due process of law but it is also against the requirement of procedural safeguards as held in the case of K.S Puttaswamy v. Union of India.
CONCLUSION AND SUGGESTIONS
To implement the ideals of due process of law and to satisfy the requirements of procedural safety and natural justice, there needs to be judicial observation. The judiciary is the competent body to determine whether specific instances of Surveillance are proportionate or not to balance the government’s objective and the rights of the individuals. The judicial investigation into the Pegasus hacking is important because the leaked database of targeted numbers includes the phone number of a sitting Supreme court Judges, which again raises the question of the Independence of the judiciary in India.
In India surveillance reform is the need of the hour, the existing protections are weak and the proposed legislation related to personal data fails to consider surveillance of the citizens. We need greater transparency in our system, governmental agencies are only accountable to the government itself. For the protection of National security, the government is bound to do smaller infringements of Fundamental rights and surveillance reform should incorporate ethics of surveillance which includes the moral values of how surveillance regulates. The government of India is in process of enacting a law for the purpose of protecting of personal data of the citizens. There is an urgent need to include privacy as a fundamental right and to provide a defining mechanism to strengthen the rights of the citizens and to provide a remedy in case of violation.
Cinematograph Amendment Bill 2021: An analysis
Cinematograph Act 1952 establishes Central Board of Film Certification (CBFC), commonly known as the Censor Board. The Board is responsible for issuing certificates to films and has the power to deny their certificate (Section 5A). Section 6(1) of the Act empowered the Central Government to re-examine and cancel the certificate issued by CBFC. Supreme Court in the case of K.M. Shankarappa diluted the provisions of Section 6. The court held that the provisions of Section 6 are restrictive of Article 19(1)(a) of the Constitution.
The new Cinematograph (Amendment) Bill, 2021 attempts to dilute the judgment of the Supreme Court and aims to get back its revisionary powers. This will provide extraordinary powers to the Central Government by creating one more level of Censorship. This year Central Government passed an ordinance, the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 which abolished the Film Certification Appellate Tribunal (FCAT). The proposed bill also aims to convert this ordinance into regular law by placing it in legislation. FCAT was solemnly established to resolve the issues related to the certification of Films. With its abolishment, the filmmakers have to approach High Court in case the Censors Board denies providing certification or provides with some ratification. This will also increase the burden of High Courts. Ultimately, this leading to a delay in a Film release.
Article 19(1)(a) of the constitution says, “All Citizens shall have Right to freedom of Speech and Expression.” Article 19(2) of the Constitution empowers the State to restrict Freedom of Speech and Expression provided that the restrictions are legitimate. Supreme Court in K.M. Shankarappa v. Union of India held, “words contained in the main portion of Sub-section (1) of Section 6 of the Act and in the first proviso thereto are opposed to the basic structures of the Constitution and as such the words “or has been decided by” and “or as the case may be decided by the Tribunal” contained in the main portion of Sub-section (1) of Section 6 and the words “or to whom a certificate has been granted as the case may be” as contained in the first proviso to Section 6(1) of the Act, are unconstitutional as the same are violative of the basic structures of the Constitution.”Supreme Court in many of its Judgments has discussed the importance of Movies as a medium of Freedom of Speech and Expression. Supreme Court in the Rangarajan case regarded Movies as an effective medium to raise any general concern.The proposed amendment is an attempt to overutilize the powers provided under Article 19(2) of the Constitution.
If the bill becomes an act then it will nullify the Supreme Court Judgment. The autonomy of the Censor Board will be deduced. The Central Government will have the power to strike down any certificate issued by CBFC. This also induces the concept of dual Censorship, limiting the Freedom of Speech and Expression. Justice Mudholkar in Sakal v. Union of India rightly said, “The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved.” The abolishment of FCAT will further increase the backlog of High Courts and will lead to an unnecessary delay in the release of Films.
Andhra Pradesh High Court issues guidelines for prompt transmission of bail orders
While granting bail to an accused under The Narcotic Drugs and Psychotropic Substances Act, 1985, the Andhra Pradesh High Court in a cogent, composed, commendable and convincing judgment in Criminal Petition No. 3933 of 2021 delivered on July 22, 2021 has taken a very serious note of the significant delay in issuing the certified copies of the orders. A Single Judge Bench comprising of Justice Lalitha Kanneganti of Andhra Pradesh High Court minced just no words to make it pretty clear that, “Disposal of bail application without furnishing the order copy within a reasonable time will not place the accused in a better position.” Justice Lalitha also observed that despite the conscious recognition of several pending cases, it is difficult to issue the order copies within a short period due to staff shortage. She has rightly diagnosed the root problem which must be addressed now without any further delay!
Needless to say, we all saw how just recently the Chief Justice of India NV Ramana too did not lag behind in a notable case titled IN RE: DELAY IN RELEASE OF CONVICTS AFTER GRANT OF BAIL in Suo Motu Writ Petition (Civil) No. 4/2021 while taking took serious note of this major shortcoming or lacuna. CJI led Bench of Apex Court comprising also of Justice L Nageswara Rao and Justice AS Bopanna had expressed the Court’s willingness to evolve a system to electronically transmit bail orders directly to prisons so that prison authorities will not delay the release of prisoners awaiting a certified copy of the order. Accordingly, a scheme called “FASTER” which implies “Fast and Secure Transmission of Electronic Record” is being considered which will be used to communicate all orders to concerned jail authorities without waiting. This will certainly benefit the under-trial prisoners/accused and so has to be lauded in no uncertain terms!
To start with, the ball is set rolling in para 1 of this latest, learned, laudable and landmark judgment authored by a Single Judge Bench of Andhra Pradesh High Court comprising of Justice Lalitha Kanneganti wherein it is put forth that, “This petition is filed under Sections 437 and 439 of Code of the Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking regular bail to the petitioner/ A-2 in connection with Crime No.38 of 2020 of Mothugudem Police Station, East Godavari District for the offence punishable under Section 20(b)(ii)(C) r/w Section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity “NDPS Act”).”
While elaborating on the prosecution version, the Bench then lays bare in para 2 that, “The case of prosecution is that on 03.09.2020 on credible information about illegal transportation of ganja, the respondent Police rushed to Daralamma Temple, outskirts of Polluru village of Chinturu Mandal and while conducting vehicle check at about 11.00 AM, they found a Bolero pick-up van bearing registration No.AP 24 TB 1550 coming from Donkarai proceeding towards Lakkavaram Junction. On seeing the police, the inmates of the said Bolero van tried to escape from the spot, but the police apprehended them and on search, they found 300 KGs of ganja. The police seized the contraband, registered the crime, arrested the petitioner and remanded him to judicial custody on the same day.”
As we see, the Bench then mentions in para 3 that, “Heard Sri G.Venkata Reddy, learned counsel for the petitioner and the learned Public Prosecutor for the respondent-State.”
While on the one hand, the Bench enunciates in para 4 that, “Learned counsel for the petitioner/A-2 submits that the petitioner has nothing to do with the alleged offence and in fact, the petitioner was engaged by A-1 on payment of Rs.15,000/- who accompanied him. Further the officer who acted as a gazetted officer while conducting the search and seizure is a veterinary doctor and the said doctor is not a competent person to act as a gazetted officer under Sections 42, 43 and 50 of the NDPS Act. Learned counsel for the petitioner further submits that the entire investigation is completed and the petitioner is languishing in jail from 03.09.2020.”
As against what is stated above, the Bench then points out in para 5 that, “On the other hand, the learned Additional Public Prosecutor submits that on 13.10.2020 charge sheet was filed.”
To put things in perspective, the Bench then while taking a holistic view holds in para 6 that, “Taking into consideration the fact that the entire investigation is completed and charge sheet is filed and further the petitioner is languishing in jail from 03.09.2020, this Court deems it appropriate to grant bail to the petitioner. However, on certain conditions.”
Adding more to it, the Bench then further holds in para 7 that, “Accordingly, the petitioner/ A-2 shall be enlarged on bail on execution of self bond for Rs.2,00,000/- (Rupees two lakhs only) with two sureties for a like sum each to the satisfaction of the Court of the Additional Judicial First Class Magistrate, Rampachodavaram. On such release, the petitioner shall appear before the Station House Officer, Mothugudem Police Station, East Godavari District, once in a month till completion of trial.”
Be it noted, the Bench then envisages in para 8 that, “This Court having criminal roster from the last couple of months has noticed that in spite of best efforts by the Registry, there is significant delay in issuing the certified copies of the orders. This Court is conscious of the large number of cases pending before the Court, due to dearth of staff, it is difficult to issue the order copies within a short span of time. In cases, where the accused are entitled for statutory bail as they are languishing in jail for more than 60, 90 and 180 days, when default bail is granted, it was brought to the notice of the Court that there was considerable delay in dispatching the copy of orders. Hence, this Court feels that an alternative mechanism shall be evolved to address the plight of these undertrial prisoners/accused. Recently, the Hon’ble Apex Court has also taken a serious note of this issue.”
More significantly, the Bench then underscores in para 9 that, “Protection of personal liberty of an individual is undeniably a constitutional duty of this Court. Our criminal justice system always gives paramount consideration to the protection of the rights of the accused. Article 21 of the Constitution of India mandates that the personal liberty of an accused can be curtailed only after strict compliance with the procedure established by law. Sections 438 and 439 of Cr.P.C. ensures that the accused is not deprived of his personal liberty arbitrarily. The Hon’ble Apex Court in catena of cases has held that speedy adjudication process is one of the main facets that constitute the essence of access to justice and without it, access to justice as a constitutional value will be a mere illusion. Denial of this right undermines public confidence in the justice delivery system. It is also settled law that the right of an accused to have his bail application heard by the Court within a reasonable time has been entrenched as a constitutional liberty. At the same time, disposal of bail application without furnishing the order copy within a reasonable time will not place the accused in a better position. Mere emphasizing that an accused has an indefeasible fundamental right to bail itself is not sufficient without furnishing the copy of the order.”
Most significantly, what forms the cornerstone of this notable judgment is then elaborated upon in para 10 wherein it is held that, “This is high time the Courts shall address these issues with a progressive approach by adopting the innovative methods. Recently Andhra Pradesh High Court implemented a procedure whereby the concerned Court Masters are uploading the daily proceedings / orders / judgments on the same day. This Court deems it appropriate to issue the following guidelines.
(a) Parties/Advocates shall download the order copy from the High Court’s Website along with case details which are available in the case status information.
(b) While filing the memo on behalf of accused for furnishing sureties, the Advocate shall State in the memo that he/she has downloaded the order copy from the High Court’s Website. The concerned Administrative Officer / Chief Ministerial Officer of the Court shall verify the order from the High Court’s Website and make an endorsement to that effect and then shall place the same before the Court.
(c) The Public Prosecutor shall also obtain necessary instructions in this regard and assist the Court.
(d) The Presiding Officer on the same day shall dispose of the same and dispatch the release order to the concerned jail authorities forthwith through email or any other electronic mode.
(e) In cases of anticipatory bail, the burden to verify the authenticity of the copy is on the concerned Station House Officer and if necessary, he should obtain necessary instructions from the Public Prosecutor’s Office and complete the process on the same day expeditiously as per law.
(f) Registrar (Judicial) shall communicate copy of this order to (1) The Principal Secretary for Home Affairs, Andhra Pradesh; (2) The Director General of Police, Andhra Pradesh; (3) The Director of Prosecution, who in turn shall sensitize the Police Officers / Station House Officers / Public Prosecutors and ensure implementation of this order.
(g) Registrar (Judicial) shall communicate copy of this order to all the Principal District Judges in the State, who in turn shall sensitize all the Presiding Officers and ensure implementation of this order.
(h) Registrar (Judicial) is further directed to circulate the copy of this order to all the Bar Associations in the State through the Principal District Judges, so that they can effectively address their clients’ cause.
(i) Registrar (Judicial) shall also issue a separate notification in this regard and the same shall be displayed in the High Court’s Website.”
It is worth noting that the Bench then makes it clear in para 11 that, “This order shall come into force from 26.07.2021.”
Furthermore, the Bench then also directs in para 12 that, “The Judicial Officers in the State shall bring to the notice of the Registrar (Judicial), the issues / hitches, if any, in implementing the directions of this Court. In case of anticipatory bails, the Police Officials shall bring to the notice of the Public Prosecutor, High Court about their difficulties in implementing the orders of this Court and the Registrar (Judicial) and learned Public Prosecutor shall place the same before this Court by the next date of hearing i.e. 31.08.2021.”
For the sake of clarity, the Bench then sought to make it clear in para 13 that, “These directions will be in force until further orders or suitable Rules are framed in this regard.
Please read concluding on thedailyguardian.com
It is needless to mention, if any clarification or modification is required for effective implementation, they will be examined accordingly on the next date of hearing.”
While adding a word of advice, the Bench then stipulates in para 14 that, “In spite of all odds, determined efforts are required for achieving the goal. Ways and means have to be found out by constant thinking and monitoring. It is the responsibility of all the stakeholders to uphold the public confidence in the justice delivery system by giving timely justice which includes furnishing the copies of orders/judgments.”
Finally, the Bench then holds in para 15 that, “Post on 31.08.2021.”
In summary, para 10 which forms the bedrock of this noteworthy judgment dwells on the guidelines that the Andhra Pradesh High Court have issued to implement a procedure whereby the concerned Court Masters are uploading the daily proceedings / orders / judgments on the same day. This is necessary also so that the undertrial prisoners/accused don’t keep languishing in jails even after they have been granted bail as we keep seeing also due to lack of implementation of such procedures as the Andhra Pradesh High Court has elaborated upon in this case. Even Supreme Court three Judge Bench led by CJI NV Ramana has expressed its concern on prisoners languishing in jail even after they have been given bail and so this need to be implemented at the earliest!
It brooks no more delay anymore! This is exactly the crux of this notable judgment also by a Single Judge Bench of the Andhra Pradesh High Court comprising of Justice Lalitha Kanneganti. Copies of orders/judgments also must be furnished in time so that the faith of the people in the justice delivery system does not crumble!
Sanjeev Sirohi, Advocate
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