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Marxist theory

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This article is written by Sushree Surekha Choudhury from KIIT School of Law, Bhubaneswar. The article talks about the Marxist theory in detail. The article helps in understanding the Marxist theory through the phases of evolution and from a critically analytical point of view.

This article has been published by Sneha Mahawar.

Introduction

Let us begin this article with a question. Questions, to be precise. What were your hobbies as a child? Or, what did you truly want to become when you grew up? Most of us would have an answer to this question that would not be a doctor, an engineer, or a corporate employee! Well, I wanted to become a writer. But look at all of us now, trapped within the claws of capitalism. This is exactly what Karl Marx did not wish society to become, slaves to capitalism. He made noteworthy contributions to history to help society rise from the roots of capitalism. Success, or failure? That is what we will analyse in this article. Though, would it not be absolutely amazing if we could follow our passions, or hobbies, without having to constantly worry about paying bills? Think about it. 

In this article, we shall understand and analyse the Marxist theory and how it helped in shaping society. 

The Marxist history

Marxist theory or Marxism evolved in the mid-19th century by sociologist and philosopher, Karl Marx. Karl Marx’s ideas were further promoted by Friedrich Engels. Originally, Marxist theory consisted of three ideologies: philosophical anthropology, a theory of history, and an economic and political program. Karl Marx believed in his theories and vowed to make them a reality. Marx’s ideology was that one must not merely wish to interpret the world, but must change it. Marx believed that the world will transform only when the consciousness of the people living in it transforms. Marx studied the political, social, and economic reasons and impacts of class struggles and conflicts. His studies on class struggle were inspired by the works of David Ricardo, an English economist in the 17th century. Ricardo studied the capitalist market and its workings. He studied the practical aspects and factors influencing capitalism, like the conflicts of interest between landlords, employers, and workers. He predicted the decline of the agricultural labour force and small business owners in Europe. This would make the proletariat the majority of the population. 

Marxism has evolved through phases of history. It can be primarily categorised into:

Early Marxism (1878-1917)

Early Marxism was confined primarily to Europe. It studied society during the rule of the German Social Democratic Party in Europe. It talks about the depression (1873-1896), the rise of imperialism, party bureaucracy, and World War I

Middle Marxism (1917-1968)

Mid-Marxism widened its focus to include the whole world. It studied society during the communist rule in the USSR. It studied events like the ‘Great Depression’ of 1992, the rise of Stalinist counter-revolution and fascism, World War II, the Chinese revolution, and the rise of the US empire. 

Late Marxism (1968-1991)

Late Marxism studied the condition of world society in the Cold War period. It studied events like the fall of the communist parties and the unfortunate return of capitalism and imperialism.

Let us understand each phase in detail. 

Early Marxism

Marx studied a society that was divided into the bourgeoisie and the proletariat. The bourgeoisie were the people in whose hands power was concentrated, in a capitalist society, and the proletariat were the working class of labourers, who got paid for their labour. Marx opposed the theories of capitalism and how it led to the formation of society. He called it ‘reductive economism’ and believed that changing the world of capitalism was necessary. It was during the Second Industrial Revolution when class divisions were prominent. Marxism stated that the production forces had become the ‘basis’ of society and that everything was driven by them. 

Engelism heavily influenced Marx’s works. Engels’ studies were on similar lines of opposing capitalism and its consequences. However, it was during the period of the Great Depression. Engels died in 1895. Soon after, the Great Depression ended and capitalism extended its horizons and support in society. The coming years witnessed technological advances like the invention of automobiles, aeroplanes, etc. This further shifted people’s focus toward capitalism, since they perceived money as the means to an end. These studies were confined to bureaucratic societies in Europe and some parts of the US. This capitalism-driven society grew greedy for power, which ultimately led to World War I.

Middle Marxism

During this phase, Karl Marx’s focus shifted from Europe to the rest of the world as well. Marx studied the social status and conditions of people during World War II. Marx observed the social factors affecting people’s lives during Stalin’s governance in the Soviet Union. Lenin emerged as a politician, leader, and revolutionary during this time. Karl Marx observed that imperialism had emerged as a greater evil than capitalism outside Europe. Imperialism led to people’s mutilation and destruction in the name of industrial progress. Industrial progress was meant for the betterment of people and society, but instead, it led to mass destruction. Marx called the colonised people of the Soviet Union and other parts of the world as the ‘global proletariat.’ 

Lenin’s theories, or Leninism, were in alignment with Marxism. Lenin believed that imperialism was the highest stage of capitalism. Lenin believed that a communist revolution would end capitalism. He wanted to create a “one-party socialist state” through “centralised democracy.” Lenin wanted communist revolutions to occur globally by the leaders and believers of communism. However, Lenin died before he could bring his vision into reality, and capitalism rose. Nevertheless, the revolutionary movements and their leaders’ efforts to bring changes did not go in vain. The middle class and lower class people have developed a sense of social advancement. However, society continued to remain a ‘capitalist bourgeoisie’ society. 

Late Marxism

Though the revolutionary movements of Leninism-Marxism crumpled due to Lenin’s death, their impacts continued to be witnessed in different parts of the world for years. 1966-68 marked the beginning of the Cultural Revolution in China. This was the first global anti-capitalist movement. Although it was not a success, it brought together people around the world with a common motive. 

During this time, Marxism focused on making good the things that were harmed during Stalin’s rule. There were many issues in the world during this time, and revolutionaries struggled to choose the appropriate subject to fight for issues like the problems of the proletariat, women, colored people, ethnic groups, sexual minorities, etc. After failed attempts, the Marxist theory developed deeper and tried to change the ‘manner’ of dealing with the subjects rather than the subjects themselves. 

Therefore, Marxist theory started focusing on the ‘production of human life.’ Marxism prescribed the production of human lives in two forms or approaches: direct and indirect. In the direct approach, Marxism talked about collective self-governing. This was the hierarchy and distribution of power, from bottom to topmost. The second approach was indirect to the production relations. This approach talked about people’s participation in the decision-making of society. It talked about the importance of the mass media, political interference, etc., in social decisions and parliamentary capitalism. 

What is Marxism 

Marxism deals with social, economic, and political factors affecting society. It talks about the ill effects of capitalism on society and the economy. Karl Marx propounded Marxist theories, or Marxism. Friedrich Engels worked on similar ideas to Marxism and dealt with economic factors affecting society. Marxism primarily exists on a belief that class conflicts between the bourgeoisie and the proletariat are a consequence of capitalism and this will ultimately come to an end by revolutions. This will occur by the rise of one while the other falls. The bourgeoisie will ultimately fall after increased exploitation and conflicts. This will result in the rise of the proletariat, who will come to own the means of production. Marxism believes that capitalism will corrode society if it is not put to an end. Capitalism exploits the labour class or workers to benefit the industrial and factory owners. Marxism observes society and economy from the lenses of class conflicts and capitalism. 

‘The Communist Manifesto’ by Karl Marx

‘The Communist Manifesto’ introduced Marxism and Marxist theories to the world in 1848 through this pamphlet – The Communist Manifesto. It was written by Karl Marx and Friedrich Engels. The pamphlet serves as the primary source for understanding Marxist theories today. The pamphlet talked about communism and the ill effects and consequences of capitalism in society. Marx and Engels  opined that social inequality created due to capitalism would rise to an extent where the proletariat would rise and overthrow the system. This will lead to a classless society where people live in harmony and promote equality. In The Communist Manifesto, Marx and Engels reiterated  that a ‘spectre of communism’ is haunting Europe. They believed that the proletariat and working class of all countries would unite and overthrow capitalism. 

‘Das Kapital’ by Karl Marx

After the publication and success of The Communist Manifesto, Karl Marx advanced his work and studies on capitalism and class struggle in a three-volume book called Das Kapital, which is German for ‘capital.’ Volume 1 of Das Kapital was published in 1867, and the other two volumes were published posthumously by Engels in 1885 and 1894, respectively. In these books, Marx focused on capitalism and its ill effects on society. He wrote about the self-destructive nature of capitalism. Karl Marx, in his book, denies the capitalist theory of labour, which states that an increasing population leads to more people working as a labour class to earn wages. He states that capitalism resulted in the invention of unemployment and that this unemployment led people to join the labour class. Capitalists treated the labour class as a ‘commodity’ and a means to make money. These capitalists, whom Marx named ‘bourgeoisie’ became greedy for capital and exploited the labour class. They made the workers work for extra hours and kept these proceeds for themselves. They engaged more and more workers and exploited them all, with the motive of wealth maximisation and profit maximisation. This created a class division. People were divided into the bourgeoisie (wealthy capitalist industry owners and factory owners) and the proletariat (the labour/working class). Karl Marx ended the book by stating the downfall of capitalism due to excessive exploitation. This will lead to the rise of the proletariat, who will create a society based on communism. The labour class will rule the world economy and gain political power. 

The Bourgeoisie and proletariat 

Marx’s analysis of society and the economy revolved around class conflicts. Marx divided the people of the world into two categories: bourgeoisie (those who controlled the means of production and were considered superior) and the proletariat (the labour class of people who worked for the bourgeoisie to produce goods and create money in the economy).

The Marxist theory stated that the two classes of people possessed opposite beliefs and interests. The bourgeoisie were focused on maximising capital and profits in their industries, while the proletariat were forced to work long hours for petty wages. This was during the industrial revolution and the urbanisation of society. However, Marxist theories of class conflict and struggle are relevant even today. The dynamics of division might have changed, but the ideology remains. Even today, there is a class of people who own the means of production and control the economy, and others who work for them to earn a decent living. 

Bourgeoisie 

Karl Marx clarified that the bourgeoisie were not synonymous with wealthy people. Their superiority in society can be calculated not from wealth but from control. They were not the people who had the most money or capital, but the ones who had the maximum control over a large population of society. This control was exercised on the labour class of people who were exploited by the bourgeoisie. Marxist theory defined the bourgeoisie as people who possessed the following elements:

  • They owned factories, industries, or other means of production.
  • They were engaged in producing goods in these factories.
  • They produced goods by employing the proletariat as the labour force.
  • The labour force produced goods but the bourgeoisie retained the maximum profits from production.
  • They paid money or capital to these workers for their labour. Generally, these wages were too low. 
  • They were not the majority in society. They existed in fewer numbers.
  • They contributed negligently to the means of production in these factories and other establishments.

Proletariat 

Karl Marx stated that the majority of the population consisted of people whom he called the proletariat. The word ‘proletariat’ came from the ancient Roman empire to describe the people who did not own property. This was furthered by Karl Marx in his studies of society and the economy. He denoted the proletariat as workers of the world who possessed the following characteristics:

  • They consisted of the majority of the population.
  • They worked for minimum wages.
  • They did not have a share of the profits produced by them.
  • They did not own factories, industries, or other establishments of production.
  • They had no say or control over their conditions. It was controlled entirely by the bourgeoisie. 
  • They worked for the bourgeoisie who exploited them. 
  • They did not own property and constantly struggled while making very little money. 

Theory of class struggle 

Karl Marx talked about class struggle and incorporated it into his theories of society. Class struggle can be defined as social divisions among people where each class of people struggles and fights to gain a superior position in society and the maximum areas and means of production. Class divisions in society occur in a capitalist society on the basis of the means of production. People were divided into those who owned and those who did not. The bourgeoisie in a capitalist society monopolised the means of production. As a result, they gained economic and political power of the highest order. 

Commodities: the basis of class struggle

Karl Marx stated that the basis of class struggle is commodities like goods and services. Capitalist society treated labour and workers as commodities that helped in producing other commodities. They were not treated as humans, but rather as commodities that could be owned by the factory owners. These workers were weak and did not have the potential to impact a capitalist society since they owned no factories, establishments, raw materials, etc. They were easily replaceable at the option of their owners. This created continuous cycles of employment and unemployment. This further diminished their worth in society. These owners enjoyed superiority in their factories and in society at the cost of exploiting the workers. Profits were generated in factories due to workers, but this profit was constantly taken away by the factory owners, and in return, workers were exploited. Capitalism created a society based on commodities and class struggle, where one class constantly enjoyed benefits at the cost of the other. 

The structure of a capitalist society benefited only one class of people, i.e., the bourgeoisie. They gained and enjoyed political, economic, and social power. They were vested with the responsibility to govern society, run administrations, and make profits in a capitalist society. They used this political power to amend property rights and laws in their favour. They even suppressed news and media that tried to highlight this societal division. The bourgeoisie opted for organised religious strategies and further exploited the proletariat in the name of inflicting ‘divine punishment.’ The banking and finance sectors too supported the superiority of the bourgeoisie in favour of capitalism. The ease of availing of bank benefits was increased for the bourgeoisie and further hardened for the proletariat. It was nearly impossible for the workers and labour class of people to avail bank loans in absence of collateral security. They were landless and did not own any property. Thus, the banks denied their facilities to them. They trapped the workers with unnecessary debts and interest. Therefore, it became impossible for the proletariat to improve their social conditions.

Class revolution

Marxism talked about the evils of capitalism. It created enslavement and constantly exploited one class by another. Marx anticipated that slavery and exploitation would come to a point where the proletariat would start a revolution. Since they will own no stake in factories and other establishments, they will start actively revolting to end this exploitation and forced labour. If capitalism does not come to an end voluntarily or through natural evolution, it will come through forced revolution.

The capitalist factory owners focused on gaining capital, while the workers focused on earning a means of survival. This difference in needs for survival was the primary reason behind class conflicts as per Marxist theory. This unfair social condition will ultimately end with revolution. Marx believed that capitalism was destined to be destroyed by rebels of the proletariat. The Marxist theory stated that this revolution will lead to collective ownership of the means of production by the bourgeoisie and the proletariat, which would ultimately give birth to socialism.  

Historical materialism

Marxist theories on society were also known as his theory of historical materialism. The theory of historical materialism was developed by both Karl Marx and Friedrich Engels. Materialism denotes a materialistic world where economic factors and ‘materials’ or commodities are determinants of a person’s position and power in society. These factors formed society and also influenced its development. In a capitalist society, Marxism associated material conditions with means of production and stated that society and societal development solely depended on these factors in a capitalist society. 

Marxist theory of historical materialism studied society and societal development through different stages and phases that it went through. Thus, historical materialism studied society through its phases on the basis of economic factors and materialistic considerations. It stated that the economic structure of society was a superstructure and that it depended on the materialistic substructure. The Marxist theory stated that societal and economic development occurs through the following stages in ascending order:

Stage 1: Slavery

Stage 2: Feudalism

Stage 3: Capitalism

Stage 4: Socialism

Stage 5: Communism.

The Marxist theory stated that each of these stages is self-destructive in nature and this destruction would continue until communism is achieved. As society moves through these phases, human nature will evolve with an evolving society. The Marxist theories on society and human nature were as follows:

  • Marxism stated that society is a whole consisting of several parts. These parts are all interrelated and cannot be removed. These parts are social institutions, social groups, class divisions, philosophies and principles, governing rules and regulations, etc. As these parts of society are correlated and interdependent, they must be studied together. It will be incomplete if one part is studied without giving consideration to the other factors and parts influencing and affecting it.
  • Marxism believed that society is dynamic. It is ever-changing and evolving. These changes occur due to conflicts of interest, views, disagreements, etc. Therefore, Marx studied society as evolving over time and constantly affected by societal factors.
  • Marx talked about human nature and social relationships as an integral part of historical materialism. Marx believed that human nature could neither be termed as ‘good’ nor ‘bad.’ It is dynamic and it has the potential to bring developments in society. Thus, historical materialism must be studied alongside the study of human nature. People maintain social relationships to commoditise and maximise wealth. This cause behind maintaining social relationships becomes a reason for class conflicts.

Marx stated the following outcomes of historical materialism. These are the factors determining social relationships and the evolution of society as per historical materialism:

  • Social relationships are an important dynamic in the Marxist theory of society.
  • Economic superstructure depends on material infrastructure.
  • Means of production drive the economy and as a consequence, drive society.
  • Social changes occur due to class conflicts.
  • Social reality and revolution affect social change.

Stages in Marxism

Marxism professed the development of society and the economy through phases or stages. Marx believed that world society would go through stages of development, ultimately leading to a communist society. He believed it to occur through the following stages:

Class conflicts and ending capitalism 

Marx believed capitalism to be a step in the economic development and progression of society. The Marxist theory stated that capitalism was a step toward the change in society which would ultimately lead to socialism, followed by communism. The Marxist theory suggested that such natural progression and change will take place through ‘class conflicts.’ Class conflicts were seen as ‘tools’ through the Marxist lens. According to the Marxist theory, the evolution of society will occur in the following manner:

  • A capitalist society is divided into the bourgeoisie (wealthy and powerful business owners) and the proletariat (labour class). 
  • The proletariat naturally had little or no power in society since they owned no means of production.  
  • They hold little value in society and are often subject to unemployment or slavery.
  • This social gap and injustice create an imbalance in society. 
  • This imbalance will ultimately lead to rebellion in the proletariat class. 
  • They will turn against the bourgeoisie  and their tools, like the government, media, banks, etc. 
  • This will ultimately lead to revolutions where the proletariat will fight for their rights and position in society. 
  • They will eventually bring change through this revolution, abolish capitalism, and rise as dictators of society. 

The dictatorship of the Proletariat 

Marxism believed that capitalism is self-destructive. It will come to an end with its own hands. Exploitation and inhumane behaviour toward the proletariat formed the basis of capitalism. It cannot last forever. The proletariat will ultimately revolt and rise. Marxism believed this to happen through some people of the proletariat class who would turn into rebels. Marx called them the “vanguard of the proletariat.” These people will bring together the proletariat globally and lead the revolution. 

Coined by socialist revolutionary Joseph Weydemeyer, the concept of “dictatorship of the proletariat” was incorporated into the Marxist theory of class conflict. It denotes the gaining and increasing political, social, and economic powers of the proletariat. Marx believed this to be a transitory stage – from capitalism to communism. State intervention would exist on resources and means of production and the ownership of means of production will transit from private bourgeoisie business owners to collective ownership of the rising proletariat. 

Internationalism and Communism 

The class conflicts and revolution will introduce communism to the world. Internationalism is the Marxist concept of uniting the world’s proletariat. As Karl Marx wrote in his book, The Communist Manifesto, “the workers of the world shall unite!” As internationalism unites the world’s proletariat, they start revolting for a common purpose – a world free from capitalism. As capitalism comes to an end due to revolutions, the proletariat will rise, and this will mark the beginning of communism. The proletariat will manage resources and means of production on the basis of equality. In a communist society, no person will be deprived of basic rights and freedom. Class conflicts and class struggles will come to an end, and the communist ideology of the “common good” will prevail. 

Karl Marx’s analysis of society

The Marxist theories have impacted society and have been a part of society’s evolution over time. Many theories of sociology have been adopted and influenced by Marxist theories and analysis of society. This has often been referred to as ‘Marxist sociology.’ These theories are:

Conflict theory

The sociological perspective of conflict theory has been inspired by the Marxist theories and principles of conflict in society. Conflict theory in sociology states that society is in perpetual conflict. This conflict is about available resources. Resources are limitedly available and every person wants access to those resources. Thus, there exists perpetual conflict and competition among people in society. 

Conflict theory further states that society is run by dominance. Society cannot run with mutual agreement and harmony. There will always be some classes of society dominating it. This is also how social order is maintained. Thus, the conflict theory in sociology is derived from the Marxist theory of social divisions and class conflicts between the bourgeoisie and the proletariat. 

Critical theory

Critical theories and cultural studies in sociology have been derived from Marxism. This is a sociological approach to culture and literature. This theory explains the social, historical, and ideological constraints and barriers to culture. Critical theorists blame capitalism for these barriers to cultural freedom and development. 

Marxism criticised capitalism for constraining the good in society. This involves art, music, and culture. This ideology has been adopted in critical theory. Believers of this theory analyse political and economic barriers in society through  Marxist theories. They take into consideration factors like commodification, reification, fetishisation, etc., while analysing the critical theory. 

Karl Marx’s analysis of the economy

Marxism’s primary focus for analysing society has been on analysing the world economy over the centuries. Marx attributed the economy to the social conditions of people. He believed the world economy would go through stages of development, as mentioned below:

Marxist theory of economic development in society

Karl Marx developed theories of the evolution of economic development in society. This came along with the theory of class struggle. Karl Marx believed that economic development in society occurred through the following stages and phases:

Slavery

This was the primitive stage of the economy and society. People worked for themselves to live in society. Working involved hunting, gathering, preparing shelter, clothing, and everything else on their own. There was no concept of buying things with money or the barter system. But, this also created evils in society. Human labour was undoubtedly the means to an end in every line of production and every aspect of livelihood. It became a powerful tool and the most important resource to have. It also created class divisions as some people emerged as superiors to others. These people started owning other people in the form of human labour. Soon, the approach of society became such that the one who owned the most human labour was treated as the most powerful. This birthed the evil of slavery. 

Feudalism

Slowly but gradually, the population increased. Hunting and gathering were no longer enough to meet the needs of all and feed all the people. This led to the development of agriculture, to grow food that could be fed to people to satisfy their hunger. Agricultural techniques, like sowing, harvesting, cultivating lands through tools, etc., were developed. Slavery primarily took the form of agricultural slavery. Human labour was engaged in agriculture and cultivation by their landowners. Landowners became the most influential and powerful people in society. Certain people held lands at the will of the King. They cultivated these lands by engaging human labour, and the produce was meant for the kingdom. Land revenue became the primary source of revenue. 

Capitalism

The industrial revolution introduced people to scientific means and values. The French revolution enhanced the sense and importance of freedom of speech and expression among people. These phases of change in technology and people’s minds led to many innovations and technological advancements. The shift from manual to agricultural labour was expanding further. labour was engaged in the textile and mineral sectors as well, which were gradually flourishing. A shift was witnessed in the textile and mineral industries from traditional agricultural labor. This shift also resulted in a mass movement of people from rural to urban areas. The shift of labour and demand from agricultural labour to industries also led to the decrease in importance of lands and the tenancy system. With the growing industries, the need for capital was felt. Money was the primary source for the industries to expand. Thus, the people who had money started to become powerful and influential in society. An evident shift was seen from the powerful landowners to powerful capital owners. This gave birth to capitalism, which corroded society within no time. People became greedy for power, which came from having more and more money. The factory owners and merchants became powerful in society. The bourgeoisie gained political power, and the proletariat continued to suffer at their hands.   

Propounders of capitalism stated that, in economic terms, it possessed the following traits:

  • Free trade,
  • Free markets,
  • Profits by establishments,
  • Private control of the means of production and resources, and 
  • Capitalism created a relationship of ‘Entrepreneur – wage labourer’ between people. 

Capitalism has evolved through the following stages to what we know of it today:

  • Merchant capitalism (merchants owned people and enslaved them in agriculture),
  • Industrial capitalism (factory owners or industry owners engaged labourers in factories),
  • Financial or imperial capitalism (one class works for another, earning money in a capitalist society), and 
  • Global capitalism (capitalism as we know it today, has become globally prevalent).

Socialism 

Marxism anticipated socialism as a stage that society would attain when capitalism would end. Marxism believed that intense capitalism would ultimately lead to class conflicts between the bourgeoisie and the proletariat. The proletariat and working class all across the world would unite and revolt. They would fight against state capitalism and put an end to it. This will give birth to a socialist economy. A dictatorship of the proletariat would run society and industries. They would own companies and industries. This would also change the manner of income distribution among workers. People would own income to the extent of their needs and not as per market conditions. Profits in the companies would be shared among all, as per their needs. The middle-class would emerge to be powerful and understand the importance of equality over capitalism. 

Communism

Socialism will create a changed society where people value others’ needs and create equality. Nobody will struggle to have a decent standard of living as the distribution of income will be done as per the needs of a decentralisation of power. Socialism will ultimately lead to communism. This will be a state of absolute equality. There will be complete decentralisation and states’ powers will disintegrate. There will be plenty of resources for everyone, and nobody will struggle at the hands of people more powerful than they are. Everyone will be equal and the concentration of power will end. People will give priority to the common good more than their individual or personal good. Classism will end in society and state capitalism will nowhere exist. War, international and national conflicts will come to an end. Everyone will live in harmony with one another.

Strands of Marxism

Marxism developed through stages. While Marxist theories started getting global acceptance and recognition, they inspired works, studies, and revolutions across the world. Marxism developed in various forms and names around the globe. Some of those noteworthy strands of Marxism were: 

German Marxism

After Karl Marx and Friedrich Engels, German Marxism was taken over by the philosopher and writer Karl Kautsky. He wrote The Economic Doctrines of Karl Marx in 1887. In this book, Kautsky focused on the economic factors affecting society. He followed similar ideologies and factors to determine society as Karl Marx and Friedrich Engels did. Kautsky focused on the evolution of society. He talked about the increasing agony and misery of the working class. He believed that capitalism has increased with time and that this is the reason for the increased misery of workers. 

Kautsky believed in and supported social reforms and protective laws to regulate working class conditions in society. Kautsky believed that laws must be made to protect workers from exploitation and enslavement. Karl Marx’s theories of society stated that the working class will overthrow the capitalists or bourgeoisie to establish social order and end capitalism. Kautsky believed that these goals could be achieved in harmony. The existing social structure does not need to be changed. Social conditions of the working class can be improved with the help of protective and regulatory laws instead of overthrowing a system and class of people. Kautsky’s theories were based on international peace and harmony. He refuted war and violence as a means to achieve  desired goals in society. He believed ‘war’ to be a byproduct of capitalism. Thus, one cannot end capitalism using the tools created by it. 

Austrian school of thought

The Austrian school of thought or the Austrian school of economics differs in perspective from other generic schools. While Marxism analysed society from class divisions and class struggle, the Austrian school believed that strong moral introspection and change in people’s perspectives on economics and society shall result in the evolution of society. Carl Menger is regarded as the founder of the Austrian school of economics. He wrote Principles of economics in 1871 and presented ideas of the Austrian school of economics. 

As the concept developed, other philosophers like Ludwig von Mises, Eugen von Bohm-Bawerk, and Friedrich Hayek contributed to the development of the Austrian school of economics. The Austrian school of economics talked about the value of commodities, goods, and services. Instead of determining the economic value of goods and services in society using mathematical equations, the Austrian school of economics believed that the economic value of goods and services is subjective in nature. It differs from person to person, as what might be valuable to one might not be to another. The Austrian school of economics believed that factors like marginal utility and availability of resources determined economic factors in society. 

Marxism believed that society and the economy depended on the means of production and the labour force that helped in creating those means. However, the Austrian school of economics differed from the Marxist theory of labour force as the Austrian school of economics determined the value of products using marginal utility analysis.  

Russian and Soviet Marxism

Karl Marx’s Das Kapital was translated into Russian in 1872. Marx analysed Russian society since the inception of his work on society and economy. He observed the Russian structure of society. Russian socialists and philosophers believed in Marxist theories of the economy and society. Georgy Plekhanov introduced Marxism in Russia for the first time, but it was Lenin who professed Marxist ideology in Russia. He propounded Leninism based on Marxism, which later came to be known as Marxism-Leninism. Lenin aimed to bring revolution in Russia by changing the structure of society. He believed in the Marxist theory of ‘dictatorship of the proletariat’ and professed it in Russia. 

Lenin believed that the rise of the proletariat and their dictatorship would end capitalism in Russia. It would also introduce democratic values in society. Lenin believed that a revolution led by the global proletariat would end capitalism in society. 

Marxist feminism

The fight for women’s rights has been prevalent in society since time immemorial. The fight for women’s rights became a movement, known as the Feminist movement. Feminism sought to uplift social conditions for women by granting them political, economic, cultural, and educational rights and equality in society. Feminism can be said to be one such movement or goal, which had similarities in socialst, Marxist, and capitalist approaches. Socialism, Marxism, and capitalism professed feminism, even though they followed different paths in doing so.

Socialist feminism believed that patriarchy is the biggest hindrance in the path of women’s empowerment and upliftment. Thus, socialist feminism aimed to end patriarchy in society. Capitalist feminism aimed to uplift women by enhancing their economic rights and freedom in society. They sought to provide equal opportunities to women in education, employment, and other economic rights. 

Marxist feminism aimed to uplift women’s social conditions. Marxist feminism believed in freeing women from being oppressed in society. Marxist feminists blamed capitalism for women’s social conditions. Capitalist society exploited women and burdened them with work. Women workers were paid less than men in a capitalist society even though they worked more than men. Thus, Marxist feminism believed that ending capitalism in society would end women’s plight as well. Marxist feminism believed the following essentials should be incorporated into society:

  • Creation of a classless society that would be free from class conflicts and struggle. 
  • There must be equal pay for equal work. Women should not be paid less for the same work due to gender discrimination.
  • Women should have bodily autonomy. Their sexual and reproductive life should be free from governmental interference and control.
  • Women should be given social wages, proprietary rights, and social involvement. Women should be able to own land and property.
  • Most women were largely engaged only in household activities in society. They were discouraged from working in industries and were paid less even if they did. Thus, Marxist feminism stated that women should be paid for housework. This ideology was way ahead of its time. 
  • Marxist feminism fought to end privatisation, or private ownership of property, as it created a gender gap and discrimination in society. It also limited the rights of women in society.

Maoism (Chinese version of Marxism)

Marxist ideologies were professed in China by Mao Zedong Sixiang of the Chinese Communist Party in the 19th century. This came to be known as ‘Maoism’ after his name. Chinese Maoism sought to bring changes to Chinese society during the late 19th – early 20th centuries. China was weak, divided, and disintegrated during this time. Mao Zedong was inspired by Marxism-Leninism in Russia. 

Maoism sought to initiate the Chinese revolution, led and joined by peasants of the state. While society considered them weak, Maoism believed them to be inherently powerful and to become the driving force of the Chinese revolution. As Marxism believed in the dictatorship of the proletariat, Maoism believed the peasants of China were to become the proletariat class in the state to lead revolutions. 

Maoism believed in the collective strength of human beings to end capitalism and the exploitation of peasants in society. It believed this strength and unity to overpower the industrial and economic dictatorship of the capitalist class in society. Maoism sought to bring changes in agriculture, economy, and industrial conditions in society to change society as a whole.

Communism, socialism, and capitalism: differences

Communism, socialism, and capitalism are different schools of thought and ideologies for the governance of society and the economy. Each ideology differs from the others in terms of its perception of governance. On the basis of equality and non-discrimination, Communism believes in concentrating power in the hands of governing authorities. Socialism focuses on a free state and a classless society. Capitalism is oriented to capital and speaks of a free market and free trade. It believes in making one class of society, the ones with maximum capital, more powerful than others. It is essential to know the differences between these three approaches to better understand society and the economy.

CommunismCapitalism Socialism
Communism professes the state’s control of resources and means of production. It dates back to the era of Marxism, where communism was associated with the rise of the proletariat in Marxist theories. Based on principles of equality, communism believes in the common good for all individuals, based on principles of equality. Capitalism believes in concentrating power in the hands of a private few. In a capitalist society, power is synonymous with wealth in a capitalist society. Capitalists believe in exerting power by using capital and wealth. Capitalism exploits one class of people (the proletariat) at the hands of another (the wealthy and powerful).Socialism believes in taking the middle ground, a balanced ground where power is neither concentrated in the hands of private individuals  nor completely vested in the government. Socialism believes in managing economic resources within reasonable limits and decentralisation of power.
It promotes complete state intervention in managing resources and the economy.The principles of laissez-faire are followed. Thus, there is no state intervention. It promotes a free market and free trade.It promotes fair distribution of resources and means of production  on the basis of people’s needs. Thus, there is a minimum state intervention while retaining powers in individuals’ hands.
The economic system is static.The economic system is dynamic.The economic system is flexible. 
Communism and communists aim to establish a communist egalitarian order in society. They believe it to be possible through revolutions.Capitalism is more inclined toward a free market and free trade. Capitalists aim to enhance economic and societal conditions with the help of capital. They believe in improvising society. They believe this can be possible only through the investment of capital. Socialism creates a mixed economy. It can exist in a capitalist society. Although it does not aim at or promote communism, the Marxist theory states that the consequence of socialism in society is communism. 

Marxist criticism

While Marxism and Marxist theories have existed in society for centuries, they have been subject to a fair amount of criticism over the years. Criticisms of Marxist theories are:

Criticism of class divisions

Marx divided society into two distinctive classes: the bourgeoisie and the proletariat. This division might have been relevant in the 18th – 19th century, but times have changed, and so has the societal structure. Society is no longer divided into a wealthy class and a labour class. Dimensions have changed. For instance, people invest in stocks and shares of businesses owned by wealthy individuals. Wealthy business owners invest their money in startups. People no longer work as slaves in the corporate world. There is labour legislation providing rights to the workers/employees and protecting their rights as well. Slavery is a criminal offense in all countries of the world. Thus, the Marxist theory of class division has become less relevant in the present day. 

Nature of capitalism

The nature of capitalism has changed from what it was two centuries ago. It is no longer as exploitative as it was during the 18th – 19th centuries. People are not divided into bourgeoisie and proletariat, and the proletariat does not suffer at the hands of the bourgeoisie. People work of their own free will and are paid minimum wages and standard salaries for their work. They are not treated as slaves by capitalism. People who are less wealthy as compared to others have the same rights and freedoms as those wealthier individuals. A section of society (proletariat, as per the Marxist theory) does not resist capitalism as they did two centuries ago. Present-day capitalism is state regulated. It is governed through rules, regulations, and laws that guarantee basic rights and freedoms to all. State intervention has minimised the injustices of capitalism. The concept of welfarism, or a welfare state, has overthrown the capitalist inequalities and enslavement of the working class.  

The misconception about control

Marxism argued that those who owned factories and were wealthy controlled the entire system of society. Marxism attributed wealth and capitalism to economic and political power in society. But, society today has changed. There are numerous fragments and divisions of society, consisting of wealthy and less wealthy people in different hierarchies. Simply put, power is not attributed to wealth. A journalist does not fear reporting against a wealthy businessman. A famous musician or other artist may favour or disagree with capitalist ideology. A social activist can procure a respectable and influential position in society, and it has nothing to do with his wealth. Governments ensure the protection of the poor and provide them with numerous benefits. Thus, control cannot be decided by the presence or absence of wealth. Wealthy individuals contribute to the state’s economy and are, therefore, respected in the state, but they do not enjoy absolute control over the state. Control is exercised by the government for the welfare of the people and the state. 

False consciousness

The Marxist theory stated that power was concentrated in the hands of wealthy businessmen (bourgeoisie) and that they created false consciousness with the help of this power. But it is evident that power or control and wealth are not synonymous any longer. The most wealthy are not the most powerful or most in control. Therefore, the Marxist theory of false consciousness is criticised. The most crucial proof of this is the independence of the media. The media does not fear wealthy individuals and does not create a false consciousness in their favour. Today, society is made up of individuals who are self-aware and conscious. They give little or no importance to class divisions in society. These people do not believe themselves to be enslaved or exploited by their employers. 

Criticism of the Marxist theory of alienation

The Marxist theory spoke of the alienation faced by the workers in a capitalist society. However, it does not hold true today. Corporate houses, companies, or companies do not alienate their employees and workers. Today, workers enjoy a respectable position in the organisation they work for and are fairly paid. Corporate houses and companies maintain managerial standards and rules. The employees’ dignity is given importance. Apart from these organisations, many people are self-employed today. They do not depend on anyone else for their employment or remuneration. Thus, the dynamics of capitalism have changed, and one class is no longer oppressed at the hands of the other. 

Many favour capitalism 

With changed dynamics and social conditions, not many people oppose capitalism. Many have grown to accept it as a standard norm, and others even favour capitalism and its ideologies. The world runs on money today. Everyone seeks to earn more to live the life of their choice. Capitalism facilitates this idea in a society where everything can be bought with capital. The Marxist theory has been criticised by proponents of capitalism as being narrow as it only looks at society from an economic point of view. Marxism believes that only economic factors are responsible for the evolution of society through the years. This ideology is opposed as being untrue. Many factors shaped society through history, like social values, customs, war, rulers, etc. Thus, the Marxist approach to capitalism is disagreed with by many. 

Failure of communism

In some parts of the world, Communism was adopted in favour of Marxist theories. The Communist Revolution of Eastern Europe was a failure. It failed to bring the social equality and justice that it aimed to bring. Contrarily, capitalism has been working well in society for centuries now. Over time, capitalist theories and approaches have improved, and the world today agrees with capitalism. Therefore, communism has failed to change society as Marxism believed it to do.

Criticism of relevance

The Marxist theories stated them to always be relevant. Marxism believes in the evolution of society in phases, where it will evolve from capitalism to communism through socialism. This has not happened. Socialism and communism failed in many parts of the world and they were not implemented through the phases that Marxism talks about. In fact, the Marxist theories of capitalism and society seem irrelevant today. Thus, Marxism is criticised for ignoring issues of social importance in the shadow of the economic evolution of society. 

Conclusion

Karl Marx and Friedrich Engels have played significant roles in shaping society. Marxist theories were furthered by Engels even after the demise of Karl Marx. Marxist theories were way ahead of their time when they were written. The basis of these theories was class conflicts, which were facilitated due to capitalism. Although people have developed an acceptance of capitalism, it continues to corrupt and corrode values in society even today. Many sections and classes of society suffer due to capitalism and capitalist principles dominating society. The critical theory stands true even today, as capitalism can be seen as a barrier to culture and literature. Though the Marxist theory is criticised for having become irrelevant today, its contribution to societal development is irreplaceable. 

Frequently Asked Questions (FAQs)

What is the primary objective of Marxist theory?

The primary objective of Marxist theory is to achieve a classless society. Marxism believes it to be possible through the attainment of communism in society.

What are the elements of Marxism?

Marxism consists of seven elements, namely:

  1. Dialectical Materialism
  2. Historical Materialism
  3. Stages of history
  4. Theory of labour
  5. Class struggle
  6. Socialist society/socialism
  7. Withering away of the state.

How is Marxism different from communism?

Marxism refers to the theories of class struggle and conflicts between two classes in society, the bourgeoisie, and the proletariat. Whereas, communism believes in a classless society that is attained by the theory of ‘common good’ based on equality.

References


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Legal framework for protecting cultural heritage throughout the centuries

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This article is written by Devasmitha Dinesh. This article has been edited by Sonali (Associate, Lawsikho). 

This article has been published by Sneha Mahawar.

Introduction 

India never fails to amaze the world with the rich cultural heritage it has in store. Cultural heritage is an umbrella term that refers to the legacy passed onto generations and is a cocktail of both tangible and intangible expressions. Tangible forms like monuments, scriptures, coins, etc., and intangible forms like art, music, and language, are all part of our cultural heritage. This article briefly explains ancient monuments, language, and art as elements of our cultural heritage and the legal framework in place to protect them. It also discusses how the present times have seen rationality making its appearance in the definition of culture, and consequently led to the erasal of discriminatory and unjust traditions.

Ancient monuments 

The Archaeological Survey of India (ASI) describes an ancient monument as any structure, erection or monument, or any tumulus or place of interment, or any cave, rock sculpture, inscription or monolith which is of historical, archaeological, or artistic interest and which has been in existence for not less than 100 years. UNESCO recognizes 46 World Heritage Sites, of which 32 are in India. Ancient monuments are not just pieces of artistic creation but also a doorway to the culture of ancient society. They are among the most sought tourist spots. They are important elements that ensure our culture and pride receive a global reach.

Language and scriptures

Language is a means of communication, which originally evolved from symbols and gestures to oral and writing forms. It strongly entails the culture of a place. The study of a language inevitably leads to the culture and history of a nation and its people. It is quite dynamic too that it evolves over time and in the process, some rare species of language are even lost. Losing out on a language implies that we are losing precious insights into the history of a country. 

According to the 2011 Language census, India has 22 scheduled languages and 99 non-scheduled languages. Presently, there are over 300 languages and dialects spoken here. Even Hindi, spoken by around 41% of the total population, has several dialects and subsidiaries, which are on the verge of extinction. So do other languages, whose native speakers are declining. 

Art, music, dance

Indian music and dance are enjoyed by millions all around the world.  Indian artists have taken inspiration from ancient scriptures, and every such artwork narrated a story. Watercolors, charcoal, and vegetable dyes were used to create paintings that survive even to this day. Such artists were commissioned in the courts of the kings to paint aesthetic artworks appealing to the eyes. Stone and marble were used to carve out beautiful sculptures, which adorn the walls of several temples and palaces. Terracotta and clay crafts also survive to this day, along with coins and metallic artifacts.

Constitutional framework

The Government of India has laid down several statutes and other legal provisions to protect the cultural heritage of our country.

  • Article 51 A(F) states that it shall be the duty of every citizen of India to value and preserve the rich heritage of our composite culture. Article 49 states that it shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.
  • Article 29(1) provides that any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. Article 29(2) states that no citizen shall be denied admission into an educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 30(1) provides that minority communities can establish and administer educational institutions of their choice, and Article 30(2) provides that the State, while granting aid, shall not be discriminatory, based on whether such institutes are run by religious or cultural minorities. These articles are included under the head of Fundamental Rights. They ensure that the minority communities receive the recognition they deserve and so that their cultural values are not compromised. 
  • The SC in cases like T.M.A Pai Foundation & Ors vs. State of Karnataka & Ors (2012) and The Ahmedabad St. Xaviers College vs State of Gujarat & Anr (1974) had reiterated on the importance of these articles and their crucial role in protecting the rights of minorities and their upliftment, thus keeping the torch of cultural tolerance high. Article 344 talks about a Committee and Commission of the Parliament for Official language. Article 344(4) talks about a Committee that is responsible to look into the recommendations of the Commission and report their opinion to the President.   

Statutory framework

  • The Ancient Monuments Preservation Act, 1904 was enacted under Lord Curzon in British India to provide for the preservation, protection and acquisition of Ancient Monuments and of objects of archaeological, historical, or artistic interest and also to prevent over-excavation in certain places. 
  • The Ancient Monuments and Archaeological Sites and Remains Act (AMASR Act) was enacted in 1958 to preserve ancient and historical monuments and archaeological sites and remains of national importance, to regulate archaeological excavations and to protect sculptures, carvings and other like objects. 
  • The AMASR (Amendment and Validation) Act, was enacted in March, 2010, under which the National Monuments Authority (NMA) has been constituted to protect the ancient monuments and the surrounding restricted areas. Under AMASR Act, the Archaeological Survey of India (ASI) gives a two-month notice to look into any objections and proceed to take over and protect monuments, sites and remains of national importance, through various Circles of the ASI spread all over the country. Currently, more than 3650 ancient monuments and archaeological sites and remains of national importance. 
  • The Prevention of Damage of Public Property Act was enacted in 1984 to protect such monuments and remains from mischief causing damage to them. To regulate export trade in antiquities and art treasures and prevent smuggling and fraudulent dealings in antiquities and ancient monuments the Antiquities and Art Treasures Act was enacted in 1972. 
  • The 1961 census recorded 1652 mother tongue languages, which dropped to 808 by 1971. Since Independence, about 300 languages are not even traceable anymore. The People’s Linguistic Survey of India, in 2013, identified around 860 Indian languages and categorized 97 of them as Endangered. A lack of recognition, bias against native speakers and the influx of the English language, which began from the time the British established strong roots in India, has led to the death of several languages here. 
  • The Ministry of Human Resource Development, in 2013 initiated the Scheme for Protection and Preservation of Endangered Languages (SPPEL) to document and archive the country’s languages that have become endangered or are likely to be endangered in the near future. In 1969, the Ministry established the Central Institute of Indian Languages (CIIL), to coordinate the development of Indian languages and to protect and document minor, minority and tribal languages. In 2003, the Ministry of Tourism and Culture set up the National Mission for Manuscripts (NMM) to document, preserve and digitize the vast wealth of manuscripts of India.
  • The Antiquities and Art Treasures Act 1972 was enacted to protect the artworks of the country as well. It was meant to give the government effective control over the movable cultural property consisting of antiquities, which refers to coins, sculptures, painting epigraphs or other work of art or craftsmanship that has been in existence for 100 years or more, or refers to any manuscript, record or other documents which has been in existence for over 75 years. This act seems insufficient in the background of India becoming a ground for idol theft and smuggling. The Draft Antiquities and Art Treasures Regulation, Export and Import Bill, 2017 suggests changes to the government mandate to acquire license to trade in antiquities. This is a risky step and requires greater alert and care on the part of the Government to make up for the adverse acts degrading the antiquity tradition.
  • In recent years, various artworks are protected under the Indian Copyright Act, 1957. Copyright is a form of intellectual property law that protects artistic works consisting of a painting, sculpture, drawing, engraving, photograph, a work of architecture or artistic craftsmanship, dramatic work, literary work, musical work, sound recording and cinematographic film. Any artistic expression is protected by copyright so that the creator of the artwork has rights and discretion over the work. 

Landmark judgments to protect our cultural heritage

M.C Mehta vs. Union of India (1986) popularly known as the Taj Trapezium Case, is where the Judiciary issued orders to protect the Taj, from the adverse effects of the air pollution caused due to the innumerable industries in the area of 10,400 sq km surrounding the Taj. The white marble had turned yellow due to the acid rain combined with heavy air pollution. The SC had also ordered that a separate cell needs to be formulated under the Central government to protect and preserve the Taj, the Agra city and other heritage monuments in the TTZ. This case led to the declaration of Agra as a Heritage City. 

India has also fought for her culture and pride outside the country. Her Majesty vs. Lord Shiva (1982) was a British High Court case that led to the return of the Nataraja idol of Lord Shiva, which was seized by the British. Such idols forming the antique collection of our country were won back after a legal battle, reflecting how India values its cultural heritage.

Recent precedents reveal that it is time to rethink if culture stands prior to rights and rationality. Culture is a dynamic concept because its constituents too tend to change with time. India is a multicultural country that inculcates inspiration from foreign elements as well, though it is debatable whether all of them suit everyone’s lives.

Conclusion 

The Cultural heritage of India is one of the richest in the world. It is essential to know the culture of our country to dive deep into the history and also pass on pride and legacy to the world. The Government has taken several steps to ensure that our heritage survives the wear and tear of time. The practical impossibility in determining laws for every element of our diverse culture also has to be considered before we mourn the loss of our heritage. However, proper planning and implementation can definitely help recover the dissipating elements of our cultural heritage. There needs to be awareness spread about the valuable cultural heritage. Innovative modes to aid its protection and preservation need to be devised.

References 


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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Challenges of a Uniform Civil Code

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This article has been written by Sonali Panwar, pursuing an Introductory Course: Legal Writing For Blogging, Paid Internships, Knowledge Management, Research and Editing Jobs from LawSikho. It has been edited by Ojuswi (Associate, LawSikho).

It has been published by Rachit Garg.

Introduction 

The concept of Directive Principles of State Policy (DPSP) is not a new one. Our Constituent Assembly borrowed the DPSPs from the Irish Constitution of 1937, which was borrowed by them from the Spanish Constitution. Chapter IV of the Constitution of India defines DPSP (Article 36-51). These are policies that the State needs to implement for the overall betterment of society. 

Article 44 of Chapter IV states that “The State shall endeavour to secure the citizens a Uniform Civil Code (UCC) throughout the territory of India.” Though Article 37 says that the DPSPs shall not be enforceable by any court. 

Currently, personal laws are governed by scriptures. A UCC will encode all those personal laws within itself which will then apply to all citizens uniformly, regardless of their personal religion.

The UCC has been in talks due to various observations done by the Supreme Court in cases like Sarla Mudgal & others. v. UOI, 1995, Mohd. Ahmed Khan v. Shah Bano Begum, 1985, and Ms. Jordan Diengdeh v. S.S. Chopra, 1985.

This article tries to bring forth the pros and cons that a UCC might bring and its effects thereof which have the power to change the social fabric of the entire country.  

Birth of UCC in India

The first ever law commission in India was established in the year 1834. It was constituted under Section 53 of the Charter Act of 1833, with Lord Macaulay as its head. The non-Hindus and non-Muslims living in presidency areas had their laws. However, there were no laws for non-Hindus and non-Muslims living in the mofussil areas. This led to much uncertainty regarding the applicability of substantive civil laws to Anglo-Indians, Armenians, and Christians. The commission submitted the Lex Loci Report in which it recommended implementing substantive civil law of England as a uniform Act. This act was to apply to all non-Hindus and non-Muslims living in the mofussil area. Thus, this led to the birth of UCC in India. 

Later due to the pressure from the Muslim elite, the Shariat law of 1937 was passed. Under this Act, all Indian Muslims are to be governed by Islamic Laws on succession and inheritance, marriage, adoption, divorce and maintenance. 

Under the Hindu law committee during the 1948–1951 and 1951–1954 sessions, a talk for implementation of UCC took birth.  Dr B. R. Ambedkar was a huge supporter of UCC and believed that only UCC will reform the Hindu society and provide protection to Muslim women, who have little to no protection under the Sharia Law. But after receiving a lot of criticism, a lesser version of the bill was passed in 1956. The Bill was divided into 4 acts namely, Hindu Marriage Act, 1955, Hindu Adoptions and Maintenance Act, 1956, Hindu Succession Act, 1956, and Hindu Minority and Guardianship Act, 1956.

Why is there a demand for UCC

We see rising demand from all parts of the country for a Uniform Civil Code. But it comes with a set of its own misconceptions. The foremost regarding personal laws is that they are invincible and aren’t subject to judicial review. Thus, people believe that UCC is the only option left to filter out all discriminatory practices in personal laws. The truth is all laws whether personal or criminal or financial are judicially reviewable and the judiciary can declare them potentially void if they encroach upon Fundamental Rights. 

The only exception to the present rule of judicial review is that the laws aren’t codified under Indian law and are derived from a different legal system. Here, understanding Article 13 of the Constitution becomes essential. Article 13 of the Indian Constitution defines law and declares them void if they abridge, violate or contravenes any provision of Part III. Quite shockingly, in the judgement of State of Bombay v. Narasu Appa Mali,1952, the HC decided that personal laws are not “laws” within the meaning of Article 13 and thus won’t be included in the ambit of Fundamental Rights enshrined under Part III (Article 12-35) of the Constitution. What the judgement essentially does is to keep the personal laws how-so-much arbitrary or violate of fundamental rights away from judicial scrutiny. Other judgements where the Supreme Court held the same principle is Krishna Singh vs Mathura Ahir, 1980, Maharshi Avdesh case, 1994, and the Ahmedabad Women Action Group case of 1997. But, in 1996 a three-Judge SC bench in the case of Mudaliar held personal laws to be void if they are violative of fundamental rights. Still, the judgement of Narasu Appa Mali has not been overruled and the ghost of Narasu Appa still looms. 

Another example is the Sharia law, this Islamic law is derived from the Islamic religious legal system and not from the Indian Constitution and thus is exempt from judicial review. 

A similar thing was also quoted by Ambedkar, “I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequalities, discriminations and other things, which conflict with our fundamental rights. It is, therefore, quite possible for anybody to conceive that the personal law shall be excluded from the jurisdiction of the State.”

But we have seen time and again in landmark rulings such as that of Shamim Ara and Daniel Latifi how the legislation protected women’s rights under the Muslim Women (Protection of Rights on Divorce) Act, 1986 by interpreting the provisions of Protection of Women from Domestic Violence Act of 2005. In these cases, too, however, the stand taken by the SC is that it is not required for the personal laws to be in accordance with the principles enshrined in the Fundamental Rights of the Indian Constitution, which in itself is very alarming.

Problems we need to address before bringing UCC

In India, a uniform civil code relating to marriage, divorce, and succession, in reality, is not feasible because of its diversity of religions and their respective practices. However, the judiciary in recent times through judicial activism is trying to bring some uniformity among various personal laws.

The most famous judgment is that of Shah Bano. According to muslin personal law, the maintenance paid by the ex-husband is only during the period of iddat (waiting period after divorce) and Mehr. But the Supreme Court rejected this argument and directed Shah Bano’s husband to pay maintenance according to the laws applicable to other Indians.

Another example is that of the Triple Talaq case in 2002 it was held that the Muslim man does not have a unilateral right to divorce his wife by triple talaq. He is bound to prove the same in a court of law.

Hindu Marriage Act, 1955

According to this act, any text, rule or interpretation of Hindu law or any custom or any usage, either before the immediate commencement ceases to be in effect. But the ground reality of this is very different.

Many rural communities do not follow this Act, because they are more comfortable deciding such disputes based on their community traditions and practices. Even women from such communities prefer to go to the local panchayats rather than formal courts and the reasons could range from them being too alien, distant, and expensive to the time that the courts take to deliver judgements. 

And as the issues of marriage, divorce and succession are civil, chances are that even after enacting a UCC, many tribal and rural communities may not follow it and continue with their own tribal or customary practices. 

So, to bring uniformity and bring equality we need to solve the root problems. This could be solved either by spreading awareness or devising ways for the formal courts to deliver speedy remedies. The enormous delays and huge backlogs will force people to follow their customary practices for quick redressal of the problem with which they are familiar.

Similar to this, many personal laws have discriminatory practices. The Lata Mittal case of 1985 is a perfect example of this.  She won a 20-year legal battle which led to Hindu daughters being given equal rights in ancestral property. Before, joint-heirship in parental property was not given to Hindu daughters.

Christian Divorce Act, 1869

This antiquated law was enacted in the colonial period. It was meant to serve the interests of British officials who had their legally wedded wives in England but were cohabiting with a local. 

Here, Christian women could not obtain divorces on the grounds of adultery committed by their husbands alone it had to be coupled with cruelty, bestiality and sodomy. On the other hand, Christian husbands could file for divorce after declaring their wives’ adultresses. Due to pressure from Christian women, the Government amended the Christian Divorce Act of 1869.

The most famous ruling by the Supreme Court was done in Mrs Mary Roy Etc vs State of Kerala, 1986. Before this ruling, the Syrian Christians used to settle property inheritance as per the Travancore Succession Act, 1916 and Cochin Succession Act, 1921. According to these, a daughter was not entitled to the property of her intestate father except to the extent of 25% of their male siblings’ share or Rs 5,000 whichever was less. The Supreme Court ruled that Syrian Christian women were entitled to equal shares of their father’s property.

Parsi Marriage and Divorce Act, 1936

As per the personal laws of Parsis, Parsi daughters who married non-Parsi men lost their property rights and non-Parsi wives of Parsi husbands were entitled to only half of the husband’s property. They have also discussed widely this issue of inconsistency. 

The main point of all these inconsistencies in all personal laws, regardless of religion, is that a woman is not equal to a man. And thus, they are discriminated against in marriage, inheritance and guardianship of children. 

Another instance of the Supreme Court trying to bring uniformity in personal laws is that of a landmark judgment of 2014. A three-judge bench held that Muslim women had an equal right to legally adopt children like any other Indian citizen and the same could not be denied by the Muslim personal law. 

Similarly, under the Hindu Minority and Guardianship Act of 1956 only the father was held as the natural guardian and the woman only when the child was born out of wedlock.

Many women-centric groups and individual leaders from different communities have been challenging the constitutional validity of this discriminatory aspect of personal laws in courts. 

The main reason is the murderous attacks in cases of inter-caste, inter-religious, and inter-class marriages, and the threat of forced marriages. Along with all these, they have to deal with issues like adultery, bigamy, polygamy, divorce, custody of child/children, property and incest in their marital homes. 

By arguing that practices such as triple talaq and polygamy impact adversely the right of a woman to a life of dignity, the Centre has raised the question of whether constitutional protection given to religious practices, under Article 25(1) of the Constitution, should extend even to those that are not in compliance with fundamental rights.

Such discriminatory provisions need to be addressed within their own personal laws first, as done in the cases of Shah Bano, 1985 and Sarla Mudgal Case, 1995 which are shining examples of bringing equality within the personal laws themselves. 

Possible limiting effects of UCC 

Even if we take Goa’s example, which has been hailed as a perfect example for the further implementation of UCC, it has certain limitations. The Portuguese Civil Code of 1867 has not been followed uniformly. 

Also, it is important to reiterate that certain types of voluntary Uniform Civil Codes exist in India as the Guardians and Wards Act, Special Marriage Act, and the Indian Succession Act. Though these are not without limitations. They need to be more gender-neutral, less homophobic, and more progressive. Acts like this should be amended and brought more forcefully in order to implement them successfully. 

Our system of Legal pluralism is not our limitation but a sign of strength and tolerance. As countries are becoming more global day by day, having parallel regimes co-existing in the family is not only essential but also integral. 

India prides itself on its diversity under Article 25. It states that “subject to public order, morality and health, all persons are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion.” The Constitution also talks about intelligible differentia under Article 14. So, it would be interesting to see how UCC will account for these. 

Recommendations of the Law Commission

The Law Commission is of the view that Uniform Civil Code is “neither necessary nor desirable at this stage.” It is of the view that it is discrimination and not the difference that lies at the root of inequality. The Government of India 016 entrusted the law commission to give its opinion on UCC and in its 185-page consultation paper maintained that to preserve the cultural and social fabric of the nation we need to protect and preserve diversity and plurality. 

They urged that the legislature should first consider guaranteeing equality ‘within communities’ between men and women, rather than ‘equality between’ communities.

It suggested that in this absence of consensus on UCC, the best way forward is to protect and preserve the diversity of personal laws. Along with this, they should balance all personal laws against the fundamental rights guaranteed in the Constitution. 

Conclusion 

The main aim of UCC is to bring gender equality and put an end to all discriminatory practices within all personal laws. So, lawmakers should make sure that women from all communities are given equal rights in matters of inheritance, adoption of children, divorce etc. Social awareness with substantial legislative amendments in laws along with exorcising the ghost of Narasu Appa Mali should be done. These measures will strengthen the impact and reach of Uniform Civil Code in India. 


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99th Constitutional Amendment

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Constitution

This article is written by L M Lakshmi Priya, a student from the school of law, Sathyabama Institute of Science and Technology, Chennai. This article provides an exhaustive overview of 99th Constitutional Amendment.

It has been published by Rachit Garg.

Table of Contents

Introduction 

The appointment of judges in the courts has always been a matter of debate in India. How will they be appointed? Whether they are competent enough to be appointed? Whether the Committees or persons selected to appoint them well qualified and competent? Such questions do arise when dealing with this issue. Then comes the 99th Constitutional Amendment, which proves to be a major step in dealing with judicial appointments in India and also holds significant importance in the Indian Constitution. The article deals with the same and also analyses the judicial appointment scenario in the country.

99th Constitutional Amendment

What is the procedure for a constitutional amendment

A constitutional amendment entails modifying a few clauses or modernizing a few external aspects to suit current needs. To reflect modern reality and necessity, it is essential to allow for a constitutional amendment. According to Article 368 of the Indian Constitution, there are three ways to amend the Constitution: by simple majority, by special majority, and by ratification by at least half of the states. Article 368 provides the parliament with the authority to amend the Constitution, including the fundamental rights, without significantly altering the essential principles of the Constitution. The following are the steps that must be taken to amend the Constitution. 

  • Bills may be introduced in either house of parliament but not in state legislatures.
  • A minister or a private member may introduce the bill.
  • The President’s approval is not required for the introduction of a bill in parliament.
  • The bill needs to be approved by each house separately.
  • A special majority (2/3 of the members present and voting, and at least 50% of the overall strength) is required to pass it.
  • The bill is brought to the president for assent after being duly approved by both Houses of Parliament and, if required, the state legislatures.

A constitutional amendment formally changes the text of the constitution. Constitutions must be modified throughout time to address insufficient clauses, respond to fresh demands, include new rights, etc. A constitution’s text would not otherwise be able to take current political and social needs into account. But political or ill-considered changes must also be prevented from changing the constitution.

An analysis of the 99th Constitutional Amendment

The 99th Constitutional Amendment Act established the National Judicial Commission Act (NJAC) in 2014. The Constitutional 121st Amendment Bill, 2014, which creates the National Judicial Appointments Commission, has been introduced concurrently with the Bill (NJAC). The Bill outlines the process that the NJAC must follow when recommending candidates for appointment as the Chief Justice of India and other Supreme Court judges, as well as the Chief Justice and other judges of High Courts. In India, there is a system known as the ‘Collegium’ that allows only judges to appoint and transfer judges. This system is also known as “Judges selecting  Judges”.  The system was put in place to reinforce and enhance the appointment-making process. 

The term ‘Collegium’ was created by the judiciary itself to retain the authority to choose judges on its own and is not found anywhere in the Constitution. The National Judicial Commission was established due to the 99th Constitutional Amendment. This amendment substituted the National Judicial Appointment Commission (NJAC) for the collegium system of appointing judges. However, the Supreme Court backed the collegium system and ruled that the NJAC was contradicting the basic structure principle and the judiciary’s independence. The commission would be comprised of six people under the proposed NJAC Act: the Chief Justice of India (Chairperson), two other senior Supreme Court judges sitting next to the CJI, the Union Law Minister, and two eminent individuals chosen by a committee made up of the CJI, the Prime Minister, and the Leader of the Opposition. The NJAC gave the panel the authority to suggest candidates for the positions of Chief Justice of India, justices of the Supreme Court, Chief Justices of High Courts, and other High Court judges. The CJI and other judges of the High Courts may be transferred from one High Court to another at its recommendation. 

The various amendments brought by the 99th Constitutional Amendment

In the 99th Constitutional Amendment, the new Article 124A was added after Article 124.

Article 124 –  Establishment and constitution of the Supreme Court 

The Supreme Court of India shall consist of the Chief Justice of India and a maximum of seven additional judges, or a greater number if it is prescribed by the law. It also states that the Supreme Court Justice will be selected by the president through a warrant which bears the signature of the president.

Article 124 A – National Judicial Appointments Commission 

The commission will be headed by 

  • The Chief Justice of India, 
  • The two most senior Supreme Court judges 
  • Two eminent people (to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India, and the Leader of Opposition in the Lok Sabha or the leader of the single largest opposition party in the House where there is no such Leader of Opposition)
  • One of the two eminent individuals would come from a minority group such as the SC/ST/OBC or be a woman. The distinguished individuals are nominated for a three-year term and are not eligible for re-nomination.

Article 124 B – Functions of the commission

The NJAC’s responsibility is to suggest persons for the positions of Chief Justice of India, Supreme Court Justices, Chief Justices of the High Court, and other High Court Judges, as well as for the transfer of Chief Justices and other Justices from one High Court to another High Court.

Article 124 C –  Power of Parliament to make laws

The Chief Justice of India, as well as the other justices of the Supreme Court and High Court, may be appointed through legislation that is regulated by Parliament, and the commission may establish any rules and regulations necessary for this system.

Article 127 –  Appointment of ad hoc Judges

The words “the Chief Justice of India” shall be replaced in Article 127 (1) of the Constitution with the phrase “the National Judicial Appointments Commission on a reference made to it by the Chief Justice of India.”

Article 128 – Attendance of retired Judges at sittings of the Supreme Court

In Article 128 of the Constitution, the phrase ‘the National Judicial Appointments Commission shall be used in place of the phrase ‘the Chief Justice of India’.

Article 217 – Appointment and conditions of the office of a Judge of a High Court 

The words, figures, and letter “on the recommendation of the National Judicial Appointments Commission” referred to in Article 124A shall be substituted for the portion beginning with the words ‘after consultation’, and ending with the words ‘the High Court’ in Article 217 (1) of the Constitution.

Article 222 – Transfer of a Judge from one High Court to another 

The words, figures, and letter “on the recommendation of the National Judicial Appointments Commission referred to in Article 124A” shall be substituted in clause (1) of Article 222 of the Constitution for the words “after consultation with the Chief Justice of India.”

Article 224 – Appointment of additional and acting Judges

The words ‘the President may appoint’ in clauses (1) and (2) of the existing Article 224 shall be replaced through this amendment with the phrase “the President may, in consultation with the National Judicial Appointments Commission, appoint.”

Article 224 A – Appointment of retired judges as sittings of High Courts

The words “National Judicial Appointment Commission on a reference made to it by the Chief Justice of a High Court for any State, may with the previous consent of the President” shall be substituted for the words “the Chief Justice of a High Court for any State may at any time, with the previous consent of the President,” in Article 224A of the Constitution.

Article 231 –  Establishment of a common High Court for two or more States

 Under Article 231 clause (2) sub-clause (a) of the Constitution shall be omitted.

National Judicial Appointments Commission 

The National Judicial Appointment Commission was created by the Union Government of India by introducing the 99th Constitutional Amendment, which was approved by a 2/3 vote from each house of parliament. According to Articles 124, 217, and 222 of the Indian Constitution, judges must be appointed to the Supreme Court and the High Court, as well as moved from one High Court to another. The Chief Justice and other judges were consulted when the President appointed justices before the NJAC was created. So, after consulting with the Chief Justice, the President made the decisions regarding the transfers. The process that the NJAC must follow for recommending candidates for appointment as judges of the Supreme Court and the High Courts, as well as their transfers, is governed by the NJAC Act. Judges must be recommended for nomination based on their seniority, aptitude, merit, and any other qualifications that may be outlined in NJAC regulations. The President is required to make the nomination following these suggestions.

History of NJAC

The Justice Venkatachaliah Commission, which was established by the NDA, recommended in its report in 2002 that a National Judicial Commission be established for the nomination of judges. The NJAC Act was subsequently passed by the Indian Government through a Constitutional Amendment in August 2014, and on December 31, 2014, the Indian President, Pranab Mukherjee, gave his approval to the law. The Supreme Court Advocates on Record Association and seven other parties filed a series of petitions in the Supreme Court on April 13, 2015, disputing the legality of the statute and arguing that it violated the independence of the judiciary. The NJAC Act was found unconstitutional on October 16, 2015, in the case of Supreme Court Advocates-on-record Association v. Union of India (2015) by a five-judge bench made up of Justices JS Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph, and Adarsh K. Goel. The bench also ordered the reintroduction of the two-decade-old “judges selecting judges” collegium system. Later, in the C. Ravichandran Iyer case (1995), the Court held that it would be clear that a non-cooperating judge or Chief Justice of a High Court may be penalized by self-regulation through the internal procedure if there was a wide gap between proven misbehaviour and terrible conduct inconsistent with the high office. This internal process would close the constitutional gap and have positive results.

The National Judicial Appointments Commission Act, 2014

The Parliament passed the National Judicial Appointments Commission Act of 2014 on the 65th anniversary of Republic Day, which details the procedures to be followed for appointing the chief justices of the Supreme Court and High Court as well as the transfer of judges.

Procedure for selecting Supreme Court judges and High Court judges under the NJAC Act 2014 

Supreme Court judges

The Act requires the NJAC to recommend a Supreme Court judge who is the senior judge to be appointed as Chief Justice of India. He must be seen as qualified to serve in the position. NJAC will provide recommendations for candidates based on their qualifications, merit, and other factors specified in the rules for determining the other supreme court judges.

High Court judges

According to the seniority of High Court judges, the NJAC is to recommend a judge for the position of Chief Justice of a High Court. Additional consideration would be given to aptitude, merit, and other eligibility standards mentioned in the regulations. In the event of the nomination of a regular judge of a High Court, NJAC would provide names to the Chief Justice of the relevant High Court and request his opinion. The two judges with the most seniority would then consult with the Chief Justice, who could also speak with other justices and attorneys if necessary. Before recommending something, the Governor’s and Chief Minister’s opinions are also taken into account. The NJAC is the primary body in charge of formulating suggestions for the replacement of Chief Justices and judges on the High Court.

Power of the President to require reconsideration

The NJAC’s recommendations could be subject to further scrutiny by the President. After reconsidering, the President must select the candidate by following the NJAC’s unanimous recommendation.

Landmark judgments relating to judicial appointments

India enacted the Constitution in 1950, following its independence. By the Constitution, the Chief Justice of India and any additional justices that he felt were necessary were appointed by the President, along with the remaining Supreme Court judges, before 1973. The following cases are those that fascinated NJAC’s introduction.

S.P Gupta v. Union of India (1982)

The aforementioned case of S.P Gupta v. Union of India (1982) dealt with the nomination and removal of judges as well as the independence of the court. One of the concerns brought up was the legality of Central Government directives prohibiting the appointment of two judges. To support this assertion, the petitioners requested access to any correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India. However, the state argued that these documents were confidential under Article 74(2) of the Indian Constitution 1949, which forbids judicial review of the Council of Minister’s advice to the President, and Section 123 of the Indian Evidence Act 1872, which forbids the use of unpublished official records on state affairs as evidence without the consent of the department’s head in question. According to Section 162 of the Indian Evidence Act 1872, a witness who has been ordered to produce a document before a court must do so, and the court will rule on any objections. 

In the case, which is often referred to as the Judges’ Transfer Case or the First Judge’s Case, the Honourable Supreme Court, with a majority of 4:3 decided that the union government, and not the Chief Justice of India, should be consulted with the variations that occur in the constitutional functions. The Honourable Supreme Court agreed in full with the definition of ‘consultation’ mentioned in Articles 124(2) and 217(1).  However, the Chief Justice of India’s role in the consultation is merely that of an advisor, according to the Supreme Court, which also stated that the transfer of judges from one High Court to another only occurs after consultation with the Chief Justice of India and is not done out of punishment but rather for the public interest. Additionally, it was decided that before forming an opinion, the Chief Justice of India must speak with at least two of the court’s senior-most judges to ensure harmony between the legislative branch of government and citizen rights. The Constitution has guaranteed the judiciary its own independence.

Supreme Court Advocates on Record Association v. Union of India (1993)

In the case of Supreme Court Advocates on Record Association v. Union of India (1993), a nine-judge Constitution Bench reversed the S P Gupta ruling by a 7:2 majority and established a unique process for the appointment and transfer of judges in the higher judiciary known as the ‘Collegium System’. The case determined that the phrase ‘consultation’ would not decrease the CJI’s vital role in judicial appointments while simultaneously giving the CJI primacy in matters of appointment and transfers. The executive’s authority over judicial selections was reduced by this verdict, which preserved the essence of Article 50 of the Constitution. Additionally, the verdict eliminated personal preference and political interference from the appointment process. 

The Court overturned the first judge’s case by declaring that when there is a dispute over the appointment of judges between the President and the Chief Justice of India, the Chief Justice of India’s opinion may not have primacy, but it would be conclusive while deciding the matter. The court further ruled that the collegium system will govern the Chief Justice’s powers to maintain the check and balance system. To ensure that the judiciary has the final say in all matters about appointments to the Supreme Court and High Court, the Chief Justice of India would only decide after consulting with the two senior judges of the Supreme Court regarding the appointments to the Supreme Court. Similarly, in the case of the High Court Judges, the Chief of the High Court would only make recommendations after consulting with the two senior judges of the High Court.

The Supreme Court of India  (IN RE: APPOINTMENT & TRANSFER OF JUDGES) v. Civil Advisory Jurisdiction (1998)

The collegium system was increased to a five-member body for the nomination of Supreme Court judges on the President’s recommendation. This body would be composed of the Chief Justice of India and the four senior-most judges. The Chief Justice of India and the two senior-most judges would make up the collegium system’s body for the appointment of High Court justices; In the third judge’s case, of the Supreme Court of India  (IN RE: APPOINTMENT & TRANSFER OF JUDGES) v. Civil Advisory Jurisdiction (1998) a nine-judge Supreme Court bench stated a consistent opinion regarding the collegium system of appointment of judges with the Chief Justice and of four senior judges rather than the two mentioned in the second judge’s case. The Supreme Court also held that the word “consultation with the Chief Justice of India,” which is mentioned in Articles 217(1) and 222(1) of the Constitution, requires a majority opinion of the judges to appoint the Chief Justice. 

Why was the NJAC declared unconstitutional

Supreme Court Advocates-on-record Association v. Union of India (2015) 

This historic decision has come to be known as the ‘Fourth Judges Case’. It came forth as a result of several petitions contesting the constitutionality of the NJAC Act and the 99th Amendment.

Facts of the case

The NJAC Act and the 99th Constitutional Amendment were contested before a five-judge Constitution Bench through various petitions. Under Articles 124(2) and 217(1) of the Constitution, the NJAC was established to select, appoint, and transfer judges to the higher judiciary. Along with the Chief Justice of India and the next two seniormost  Supreme Court justices, the NJAC also included the Union Minister for Law and Justice and two distinguished individuals. The Chief Justice of India and a group of the four senior-most Supreme Court judges were part of the collegium that the NJAC intended to replace.

Issue of the case

Whether the NJAC Act and the 99th Amendment Act were constitutional under the constitution?

Observation of the court 

The Supreme Court observed that the NJAC’s judicial component was not adequately represented by the Chief Justice of India and the next two senior Supreme Court judges, and their inclusion was insufficient to maintain the judiciary’s primacy in the process of choosing and appointing judges. This shattered the concept of “independence of the judiciary.” The independence of the judiciary and the principle of separation of powers are violated by the Union Minister in charge of Law and Justice involvement in NJAC. Reciprocity and feelings of payback to the political executive would erode the independence of the judiciary. The NJAC Act and the 99th Constitutional Amendment were struck down mostly due to the predominance of the executive.  

Judgement of the case

The 99th Constitutional Amendment, along with the NJAC Act, was declared unconstitutional and void by the Court in this case, which ruled 4:1 in its favour. The majority, which included Justices Khehar, Lokur, Goel, and Joseph, claimed that the involvement of the executive in the appointment of judges infringed upon its primacy and supremacy and violated the fundamental constitutional principle of the separation of powers between the executive and judiciary organs. 

However, Justice Chelameswar disagreed with the four judges’ stating that even though it is believed that the independence of the judiciary is a  basic structure of the system, giving weight to the judiciary’s opinions is not the accurate and only way to ensure the effectiveness of the judiciary. This means that it is neither a norm nor a fundamental principle of the Constitution.

Even though the collegium system was upheld by the majority verdict, it was noted that the system needed to be modified to improve responsiveness and transparency. The judiciary’s independence was compromised since the judicial components, which consist of the Chief Justice of India and two senior Supreme Court judges, were insufficient to uphold the judiciary’s primacy in terms of appointment and selection. Finally, they agreed with the claims that the NJAC Act violated the Constitution’s fundamental principles of judicial independence. As a result, the collegium process, which was the previous technique for choosing Supreme Court and High Court judges, should continue to be used, even with improved amour.

Way forward

  • The process of filling vacancies, which involves the government and the judiciary, is ongoing and collaborative; hence, a deadline cannot be set for it. The time has come to consider a permanent, independent organisation to institutionalise the procedure with sufficient safeguards to maintain the judiciary’s independence and assure judicial supremacy but not judicial exclusivity.
  • It must guarantee independence, reflect diversity, exhibit professionalism, and uphold integrity.
  • The concept of “judges appointing Judges” serves as the foundation for the existing system of judicial appointment. Although the Supreme Court of India has ruled that the executive should not intervene excessively in the judiciary’s ability to nominate judges.
  • It has been made very obvious that all of the components of a “democratic Government” require the maintenance of specific checks and balances. The Constitution’s framers made a conscious decision to keep the executive involved in the selection of the judiciary to prevent any abuse of power by a single branch of government, even though the entire concept of the separation of powers was created to keep each branch independent of the other.

Conclusion

In conclusion, it may be said that the NJAC is one step ahead of the collegium system in terms of judicial accountability. However, the reality is that there is a thin line between judicial accountability and degrading the independence of the judiciary. The NJAC may not be the best option for appointing judges, but it beats the ambiguous collegium system.

Frequently Asked Questions (FAQs) 

Who introduced the NJAC bill?

The then-Union Law Minister, Mr Ravi Shankar Prasad, introduced the NJAC bill, 2014, in the Lok Sabha on August 11, 2014.

What are the issues with the current collegium system?

The collegium system expands the scope of favouritism because it doesn’t offer any rules or criteria for the appointment of Supreme Court judges. In the collegium system, there are no requirements for screening candidates or performing background checks to determine their credibility. 

References 


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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Public performance rights given to musicians in the US

0
Legal rights and status

This article is written by Esha Bahal pursuing a Diploma in US Intellectual Property Law and Paralegal Studies at Lawsikho. This article has been edited by Ojuswi (Associate, Lawsikho). 

This article has been published by Sneha Mahawar.

Introduction 

Revenue earned from public performance rights accounts for 10.6% of global recorded music revenues, which was about 2.3 billion US dollars in 2020.

Historically, commercial users of sound recordings- radio and television stations and jukebox operators did not compensate performers and record producers for their creative efforts, which is why revenue earned from public performance rights was negligible in the past. This changed with the introduction of the American Music Fairness Act, which ensures that artists and music creators are paid when their songs are played on FM/AM radio. The Music Modernization Act was also monumental in changing how digital services pay royalties to artists. So, if you’re a recording artist, songwriter, featured or non-featured artist, you are entitled to public performance royalties of your work when it is performed publicly. To know how you’ll need to learn a little about copyright law. 

What are the different copyrights in music

Every song you listen to has two copyrights. These two copyrights form the backbone of the music industry that protects every recorded song-

  1. The copyright in the musical composition of a song – the lyrics and musical score (essentially the musical work that includes any accompanying words); 
  2. The copyright subsists in the sound recording- the actual recording of a musical composition. The copyright in a sound recording covers the recording itself. It does not cover the music, lyrics, words, or other underlying content incorporated in that recording. 

This is important to understand as these two distinct copyrights determine who owns what copyright, how a recording is used, and who gets paid when that song gets played. There are two kinds of musicians- songwriters and performing artists. 

Musical CompositionSound Recording
Who owns the right?The compositional copyright is owned by songwriters, lyricists, and composers. Songwriters hold the copyright for a full song and they cannot divide lyrics and melody into separate rights. They are managed by their music publishers who partially own the copyright.  The copyright subsisting in the master recording is owned by performing artists and (typically) their labels.

According to 17 U.S. Code § 101, ‘a work is “created” when it is fixed in a copy or phonorecord for the first time; where work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.’

What are performance rights in the music industry

Copyright law in the United States provides a copyright owner of a protected work with six exclusive copyrights:

  1. Reproduction  
  2. The preparation of derivative works  
  3. Distribution  
  4. Public performance
  5. Public display  
  6. Public performance of a sound recording in non-exempt digital formats.

The fourth exclusive right to “perform” a work means to recite, render, play, dance, or act that work, either directly or through any device or processor, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. The fourth right, “to publicly perform” a work, essentially allows a copyright holder to control performances in public of creative work. Such “public performances” also include the “performance” of composition through an on-demand stream played over the Internet such as Spotify or Apple Music. In a nutshell, performing rights are the rights to perform music in public. Performing rights give rise to the right to collect public performance royalties. 

Who manages these copyrights

Generally speaking, both songwriters and recording artists assign their rights to a third party for management, instead of independently tracking their song’s use and seeking payment unassisted. Song copyrights are generally assigned to music publishers, while master recording copyrights are generally assigned to a record label. Songwriters and composers transfer some or all of their copyright interest to a music publishing company which facilitates the licensing of that copyright to record labels, digital streaming services and others who wish to use that work. In the US, publishers and songwriters generally split both performance and mechanical royalties 50/50. 

However, some independent artists do not transfer the rights to their works and don’t work with music labels. Instead, they upload their work through content aggregators or services like Spotify for Artists. This means they exclusively own their rights and keep all the slices of their cake. 

What constitutes performance authorship

The answer to this question will help us understand how much a performing/recording artist will get paid for the public performance of their sound recordings. A featured artist will be entitled to a greater share in digital public performance royalties compared to a non-featured artist. 

Examples of authorship in performance include playing an instrument, singing, speaking, or creating other sounds that are captured and used in the sound recording. Individual performance authorship can be claimed only if the sound recording consists entirely of an individual performance that is ‘sufficiently creative’. If performance is a part of a joint work (e.g., a band performance), the U.S. Office will not accept a claim on an individual performer’s contribution to that joint work. 

Performance royalties

The American Music Fairness Act, introduced in 2021, introduces a new music royalty on over-the-air radio stations such as FM & AM. The royalty would be payable to SoundExchange [which is a Performance Rights Organisation (PRO) that helps facilitate the collection and distribution of mechanical royalties] for the public performance of sound recordings. This means that the money collected by PROs would be paid to recording artists and record labels for the use of their recorded songs. This new royalty would be in addition to the royalties paid by radio stations to composers and publishing companies through ASCAP, BMI, SESAC and GMR, which are paid for the performance of the musical composition – the words and music to a song. 

Mechanical royalties

Mechanical license relates only to the rights of reproduction and distribution of musical works under the copyright act; it does not grant a license or permission to perform publicly, display or “sync” uses of a song in time with audiovisual material. Mechanical royalties are royalties that are generated each time a musical composition is reproduced, whether physically or digitally via on-demand streaming or download-to-own services.

Public Performance RoyaltiesMechanical Royalties
What are they?Performance royalties are paid for the right to play a composition in public (public broadcast of music) such as in a restaurant, or bar, over a service like Spotify or Apple Music, or the radio, on TV or in a film.Mechanical Royalties are paid each time a musical composition is reproduced, whether physically or digitally via on-demand streaming or download-to-own services.
Who gets paid?Recording artists & their music labels and Songwriters and their publishersSoundExchange pays digital performance royalties (for the performance of sound recordings) to record artists and their music labels only, to the following criteria: 
45% to featured artists5% to non-featured artists50% to the rights owner of the master recordingIn addition to this, BMI, ASCAP, and SESAC also collect performance royalties (for the performance of the musical composition) but only for songwriters. 
Songwriters and their Publishers. 
Who’s paying?FM/ AM Radio, Digital Service Providers, Venues, Restaurants, Bars, Inns, TavernDigital Service Providers such as Spotify, and Apple Music; Download stores such as iTunes; Global YouTube Sync Publishing
Who collects?Public performance royalties are managed, collected and distributed by performance rights organizations, or PROs. Mechanical Royalty Collection Agencies such as the Harry Fox Agency (HFA). HFA will distribute them to the composition owners and their publishers. 
What are the rates?Depends on the metadata and accurate reporting by these organisations. There is no set rate, they vary quarter by quarter. All-In Royalty Rate is applied to the service’s total revenue (currently, 11.8% of the service’s revenue, with a plan in place to increase the rate to 15.1% by 2022).

What is a public performance

Under 17 U.S. Code § 101, a performance is public when performed amidst a social gathering of a significant number of people outside the performer’s circle of family and friends. So, a restaurant playing a song on its radio, which can be heard by its customers eating food, would constitute a public performance and the musical compositions played would generate performance royalties.

In today’s digital streaming ecosystem, a digital service provider such as Spotify or Apple music would pay both mechanical and performance royalties because their users are choosing to play a song on the on-demand platform. If a song is played on a non-interactive platform (like Pandora’s free radio, for example), only performance royalties are paid out.

Additional tips on how to protect your copyright better

  • Register your work at the Copyright Office. If registration occurs within five years of publication, it is considered prima facie evidence in a court of law. If there’s a dispute on your copyright, registration with the copyright office is going to have evidentiary value. 
  • Register your work with Performing Rights Organisations. This would help you get paid for your work. 
  • If you’re a songwriter and recording artist and you signed up with a music label, have a clause in your contract that gives you the option of buying back your master recordings. 

References


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

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Drugs and Cosmetics Act, 1940

0

This article has been written by Anindita Deb, a student from Symbiosis Law School, NOIDA. In this article, the author attempts to explain provisions of the Drugs and Cosmetics Act. 1940, its distinctive features, and its lacunae. 

This article has been published by Sneha Mahawar.

Table of Contents

Introduction 

India is pacing toward technological developments in every field, medical science being one of them. Since the COVID times, India has shown great innovation and participation in every step of the process of protection of health and advancement towards safety measures. But all these processes need to be backed up by the law, and the law needs to constantly evolve in order to accommodate all the new changes we are witnessing in the field of medical science. 

The Drugs and Cosmetics Act, 1940 (DCA), is one such law that governs the manufacture, import, and distribution of medicines in the country. It was followed by the Drug and Cosmetics Rules, 1945, which categorised the drugs into schedules and provided regulations for the sale, storage, and prescription of each category. The article seeks to discuss its provisions, as set out in 1940, and how the legislation has been enhanced in the past two decades and what new rules and legal provisions have been introduced into the Act. 

Objectives of the Drugs and Cosmetics Act

The Drugs and Cosmetics Act aims to hold medical technology and pharmaceutical companies liable for negligence and sub-standard services provided by them. A major objective of enacting this legislation was to prevent adulteration in medicines. Some other objectives have also been discussed below:

  1. Regulation of the sale, import, and distribution of drugs and cosmetics by means of licensing.
  2. Ensuring that only qualified individuals are involved in the import, distribution, and sale of drugs and cosmetics. 
  3. Preventing substandard drug quality, presumably in order to maintain high medical treatment standards.
  4. Regulation of the production and sale of Ayurvedic, Siddha, and Unani drugs.
  5. To form a Drugs Technical Advisory Board (DTAB) and Drugs Consultative Committees (DCC) for allopathic and allied drugs, as well as cosmetics.

Relevant definitions in the Drugs and Cosmetics Act

In order to obtain a better understanding of the provisions of the Act, we need to first familiarise ourselves with certain terms that have been defined within it. Some of the terms used throughout the Act have been defined hereunder. 

Drug 

Under the Act, ‘drug’ has been defined in Section 3 by categorising the term to include 4 categories, which are as follows:

  1. All the medicines which are meant for internal or external use on humans or animals, and the “substances used for or in the diagnosis, treatment, mitigation or prevention of any disease in human beings or animals.” This also includes preparations that are applied to the human body as repellents for insects like mosquitoes. 
  2. Substances other than food that may affect the structure or function of the human body or that are used to destroy insects or vermin that cause disease in humans or animals, as the Central Government specifies through a notification in the Official Gazette from time to time.
  3. It also includes the substances that are used as components of a drug, including empty gelatin capsules. 
  4. The devices that are used internally or externally on the human body or on animals for the purpose of diagnosing, treating, mitigating, or preventing any disease or disorder, as may be specified by the central government in the Official Gazette from time to time after consulting the Drugs Technical Advisory Board (DTAB). 

Cosmetic 

It has also been defined under Section 3 and refers to any item that is “intended to be sprayed, poured, rubbed, or sprinkled on, introduced into, or applied” to the human body or any part of it for cleansing, beautifying, promoting attractiveness, or altering appearance. It also includes any items intended for use as a cosmetic component.

Misbranded drug 

A drug will be considered a misbranded drug under the following 3 conditions:

  1. If the drug has not been labelled in the manner as it has been prescribed. 
  2. If it is coloured, coated, powdered, or polished in order to conceal any damage, or if it is made as such, it appears to be of better or greater therapeutic value than it actually is.
  3. If the label or container coming with the drug bears any statement, design, or device making a false claim about the drug or giving any misleading information. 

Ayurvedic, Siddha or Unani drugs 

This term, defined under Section 3(a) encompasses all medicines which are used for internal and external purposes in diagnosis, treatment, prevention or mitigation of disorder or disease in humans or animals. These medicines have to be manufactured exclusively in accordance with the formulae laid down in the authoritative texts of Ayurvedic, Siddha, and Unani Tibbi Systems of Medicines provided under the First Schedule to the DCA. 

Patent or proprietary medicine 

The meaning of this term, as defined under Section 3(h), can be derived as follows:

  1. In relation to the Ayurvedic, Siddha, or Unani systems of medicine, “all formulations containing only the ingredients mentioned in the formulae described in the authoritative books of the Ayurvedic, Siddha, or Unani systems of medicine specified in the First Schedule to the Act,” but excluding the medicine in which parenteral administration is used.
  2. In relation to any other system of medicine, including allopathy, a drug is introduced in a form “ready for internal or external administration” of humans or animals that is not currently included within the editions of the Indian Pharmacopoeia or any other Pharmacopoeia.

Adulterated drug 

According to Section 9A, a drug will be treated as adulterated if it falls into one of the below categories:

  1. Whole or part of it consists of “any filthy, putrid, or decomposed substance”, or 
  2. It has been “prepared, packed, or stored under poor sanitary conditions” due to which it may have been exposed to contamination and hence rendered injurious to health, or 
  3. The whole or part of the composition of the container of the drug was “of any poisonous substance which may render the contents injurious to health,” or 
  4. The drug contains a colour that is not prescribed, or 
  5. The drug contains a harmful or toxic substance that renders it injurious to health, or 
  6. It is mixed with a substance that may reduce the drug’s quality or strength. 

Manufacture in relation to drugs or cosmetics 

Although the term ‘manufacture’ has not been explicitly mentioned in the Act, it refers to any process that is fully or partially used for “making, altering, ornamenting, finishing, packing, labelling, breaking up, or otherwise treating or adopting any drug/cosmetic with a view to its distribution or sale, but does not include the compounding or dispensing of any drug or cosmetic in the ordinary course of retail business.”

Spurious drug

As per Section 17B of the Act, a drug will be treated as spurious under the following situations:

  1. If the drug has been imported under a name that belongs to another drug, or 
  2. If it is an imitation or substitute for another drug or it has a resemblance with some other drug in a way that it will likely deceive or happens to bear on itself or its label the name of another drug, or 
  3. If the name of a person or business claiming to be the drug’s producer appears on the label or container but that person or business is fictional or nonexistent, or
  4. If the drug has been substituted in whole or in part by another drug substance, or 
  5. If it claims to be the product of a manufacturer or company by which it isn’t actually produced. 

Misbranded cosmetic 

A cosmetic will be deemed misbranded, according to Section 17C, if it falls under one of the following categories:

  1. When it contains an unprescribed colour, or 
  2. When the cosmetic is not labelled as it was prescribed to be, or 
  3. When the label or container of the cosmetic or anything that accompanies the cosmetic happens to bear any statement that is false or misleading in nature. 

Spurious cosmetic 

According to Section 17D, a cosmetic will be termed a spurious cosmetic:

  1. If it has been imported under a name belonging to some other cosmetic, or 
  2. If the cosmetic is an imitation of or a substitute for another cosmetic, or happens to resemble another cosmetic in a “manner likely to deceive”, or bears on it or on its label or container the name of some other cosmetic, or 
  3. If the label or container of the cosmetic bears the name of any fictitious person or company claiming to be the manufacturer of the cosmetic, or 
  4. If the cosmetic claims to be the product of a manufacturer who hasn’t really produced the cosmetic. 

Salient features of the Drugs and Cosmetics Act

The Act has made a significant effort toward regulating the pharmaceutical industry in India and hence ensuring the protection of the health and safety of the public. Some of the salient features of the Act can be summed up as follows:

  1. The maximum penalty is life imprisonment and a fine of Rs. 10 lakhs or three times the confiscated goods’ value, whichever is greater.
  2. Other gazette officers, in addition to officers from the Drug Controller’s Office, are authorised to initiate prosecution under the Act; some of the offences are cognizable and non-bailable;
  3. Specialised courts for the trial of offences covered by the Act;
  4. Provision for the aggregation of minor offences.

Wings under the Drugs and Cosmetics Act, 1940 

The Drugs and Cosmetics Act established 3 wings with proper authorities to ensure proper regulation and administration of the Indian pharmaceutical industry. These wings are:

Advisory wing 

This wing consists of two bodies.:

  1. Drugs Technical Advisory Board (DTAB) 
  2. Drugs Consultative Committee (DCC) 

Analytical wing 

This wing consists of the following bodies and individuals 

  1. Central Drug Laboratory 
  2. Government analysts 
  3. Drug Testing Laboratories for the states 

Administrative wing 

The following individuals are responsible for the administration of drugs and cosmetics regulations:

  1. Drugs Controller General of lndia
  2. Drugs Control and Licensing Authorities of States
  3. Drug Inspectors of central and state governments

The functions and features of the significant authorities have been discussed in the following sections of the article. 

Drugs Technical Advisory Board (DTAB)

It is a statutory board established by the Central Government under the provisions of this Act to advise the Central Government and State Governments on all technical matters pertaining to the Act, as well as to establish guidelines for types of formulations as and when requested by the Central Government. It is a technical advisory body composed of members who are ex-officio, nominated, and elected. The DTAB has a total of 18 members who represent various aspects of the pharmacy and medical professions in the country. The Chairman of the DTAB is the Director General of Medical and Health Services, Government of India, and the Member Secretary is the Drugs Controller General of India. The DTAB’s headquarters are located at the Ministry of Health and Family Welfare, Government of India, Nirman Bhavan, New Delhi.

Composition of DTAB

The DTAB comprises ex-officio, nominated, and elected members. The following are the members under each head:

Ex-officio members 

There are 8 ex-officio members, namely:

  1. “Director General of Medical and Health Services, Government of India (Chairman)
  2. Drugs-Controller General of India (Member Secretary) 
  3. Director, Central Drug Research Institute (CDRI), Lucknow, U.P. 
  4. Director, Central Drug Laboratory (CDL), Kolkata 
  5. Director, Indian Veterinary Research Institute (IVRI), Izzatnagar, U.P. 
  6. Director, Central Research Institute (CRI), Kasauli, H.P. 
  7. President, Pharmacy Council of India (PCI)
  8. President, Medical Council of India (MCI)”

Elected members 

There are five positions where members have to be elected:

  1. One professor in pharmaceutics or pharmaceutical chemistry or pharmacognosy is elected by the Executive Committee of the Pharmacy Council of India (PCI) from any university or affiliated pharmacy college.
  2. One professor in medicine or therapeutics in any of the government or affiliated medical colleges is elected by the Executive Committee of the Medical Executive Committee of Medical Council of India. 
  3. One professor in pharmacology and toxicology is to be elected by the governing body of the Indian Council of Medical Research (ICMR).   
  4. One member is to be elected by the Central Council of the Indian Pharmaceutical Association (IPA). 
  5. One member is to be elected by the Indian Medical Association (IMA).

Nominated members 

The remaining 5 members will be nominated by different bodies. They are:

  1. Two members will be nominated by the central government who are in charge of the Drugs Control Department of the state or union territory.
  2. Two government analysts will be nominated by the central government anywhere from the country. 
  3. One industrialist representing the pharmaceutical industry is to be nominated by the central government. 

Term of office 

The term of office for elected and nominated members is three years. Ex-officio members hold office so long as they are in that specific position. Even if they are not members of the DTAB, they can form sub-committees and co-opt member experts for specific assignments. The DTAB makes policy decisions on technical aspects of the Drugs and Cosmetics Act and Rules and forwards its recommendations to the Ministry of Health and Family Welfare for approval. DTAB meets twice a year. DTAB can be summoned with one week’s notice for certain urgent matters. The Ministry of Health and Family Welfare may decide on very urgent matters on a priority basis at times. However, such government decisions must be ratified by DTAB within 6 months.

Drugs Consultative Committee (DCC) 

It is the Advisory Body appointed by the central government under Section 7 to advise the central and state governments, as well as the DTAB, on matters pertaining to the uniform implementation of DCA and Rules provisions. The DCC is made up of two representatives nominated by the central government and one representative each from the state government and the union territory. The state government or union territory usually appoints the Director of Drug Control Administration or Drug Controller of State to this Council.

Central Drug Laboratory (CDL)

The Act directed the establishment of a Central Drug Laboratory (CDL) under Section 6 in Kolkata, and it will be headed by a director appointed by the central government. It is the “Statutory Analytical Laboratory for drugs and cosmetics under DCA whose decision with regards to analysis is final in the court of law.” 

Functions of the Central Drug Laboratory

The CDL is responsible for performing various functions, which are:

  1. It analyses drug and cosmetic samples sent by customs collectors and different courts.
  2. As directed by the central government, it advises the central government, state governments, and union territories on drug and cosmetic analysis aspects, and it also undertakes analytical work of a particular nature for samples sent by the central government and state governments.
  3. It may accept samples for analysis in exchange for a fee from private parties, consumer organisations, and so on.
  4. It is involved in research for the development of newer drug and cosmetic analysis techniques.

Powers of the Director of the Central Drug Laboratory

In order to carry out an effective analysis of the items, the director of the concerned laboratory is vested with the powers of the Director of the CDL as per the Act. The following are the powers:

“1. Director, Central Research Institute (CRI), Kasauli, H.P: for biological preparations such as vaccines, sera, toxins, toxoids, etc., and also bacteriophages, surgical sutures, and ligatures.

2. Director, Indian Venterinary Research Institute (IVRI), Izzatnagar, U.P: for all biological products and other veterinary products meant for animals.

3. Director, Central Indian Pharmacopoeia Laboratory (CIPL), Ghaziabad, U.P: for all homeopathic medicines and condoms.

4. Director, National Institute of Communicable Diseases: Oral Polio Vaccine”

The sample for analysis must be sent under sealed cover via registered mail to the Director of the relevant laboratory. A memorandum filled out by the person posting the sample for analysis in accordance with the procedure should be accompanied separately on the same registered post. A separate copy of this memorandum with the impression of the seal must be sent to the Director via registered mail. The officer delegated on behalf of the Director or the Director himself receives the registered post of sample and memorandum. The impression of the seal in both cases is compared, and its authenticity is confirmed before the seal is opened. The sample must be kept in the custody of the Director or an officer designated by him until the analysis is completed and then for a period of one year. Following the completion of the analysis, the protocol used for the analysis, analytical results, and other pertinent information are sent to the appropriate party via registered mail. Priority for analysis is determined by the importance of the matter. The analysis decision made by CDL is final and cannot be challenged in court.

Drug inspectors 

Drug inspectors are appointed under Section 3(e) by both the state and federal governments for specific areas or categories of activity. A separate set of inspectors could be assigned to the manufacturing of drug formulations. Drug Inspectors work for the Drug Controlling Authority of the state or central government, depending on the circumstances. An inspector has been tasked with ensuring that the Drugs and Cosmetics Act is strictly enforced in his or her jurisdiction.

Qualifications necessary for the position of drug inspector 

In order to hold the position of drug inspector, one must meet the following criteria:

  • The individual should not have a direct or indirect financial interest in any of the activities related to drug import and export, manufacturing, sale, or distribution.
  • A graduate in pharmacy, pharmaceutical sciences, or medicine with a specialty in clinical pharmacology or microbiology from an Indian university is eligible for the position of Inspector.
  • For the purpose of “Schedules C and C (1) drugs”, 

(i) a drug inspector with at least 18 months of experience manufacturing at least one substance specified in Schedules C and C(1) or 

(ii) a drug inspector with at least 3 years of experience inspecting firms manufacturing Schedules C and C(1) drugs or 

(iii) a drug inspector with at least 18 months of experience testing at least one of the substances in Schedules C and C (1) in a laboratory approved for the purpose.

However, these qualifications may not be needed for those who were appointed as an inspector on or before October 18, 1993. Every drug inspector will be deemed to be a public servant as per the definition provided under Section 21 of the Indian Penal Code, 1860

Duties of inspectors of premises licensed for sale 

Subject to instructions issued by the controlling authority, an inspector authorised to inspect premises licensed for the sale of drugs has the following duties under Section 51 of the Drugs and Cosmetics Rules of 1945:

  • To inspect all establishments for sale at least once a year.
  • To ensure that licensing conditions are being followed.
  • To obtain and send the drug for testing or analysis if he has reason to suspect that the drug is being sold or stocked in violation of the Act or Rules.
  • To conduct a worded investigation into the complaint.
  • To keep a record of inspections.
  • To conduct the necessary research.
  • To initiate prosecutions for violations of the Act and Rules.
  • When authorised by the State Government, detain imported packages containing drugs, the import of which is prohibited.

Duties of inspectors specially authorised to inspect the manufacture of drugs or cosmetics

The duties to be performed by an inspector are mentioned below. These duties are subject to the instructions issued by the Controlling Authority. 

  • To inspect, at least once a year, all premises licenced for the manufacture of drugs or cosmetics. 
  • To ensure that licence conditions are met.
  • To inspect the plant, manufacturing process and standardisation, storage, technical qualifications, and other details for Schedules C and C (1) drugs.
  • To submit a thorough inspection report to the Controlling Authority.
  • To collect samples for testing or analysis in accordance with the rules.

The inspector is restricted from disclosing any information that he acquires except for official purposes or when the law requires him to do so. He also has the authority to seize records or to prevent the manufacturer from selling the drugs for a period of 20 days if he has reason to believe that they are violating provisions of the Drugs and Cosmetics Act. If needed, he may take xerox copies of the seized documents signed by the owner of the documents. 

A drug inspector is required to conduct a routine inspection of a shop or manufacturing unit within his jurisdiction at least once a year. In general, the inspection should be performed at a reasonable time, preferably during working hours. However, if he or she has reasonable grounds to believe that a violation of the DCA is happening, he or she may raid the premises and seize the documents, records, or medicines, as the case may be.

The sample taken from the drug store should be divided into four parts. The seizure of medicine should be done according to the provisions of the Code of Criminal Procedure, 1973, and in the presence of witnesses. The samples must be sealed, and the drug store owner’s seal should be permitted. In the case of injectables, four different ampoules from the same batch are confiscated. The drug inspector pays the drug store owner the fair price of the seized material, or if the owner refuses to accept money, the receipt is prepared separately and the form is filled out. Any seizure or raid must be immediately reported to the Judicial Magistrate of that area. One of the four samples confiscated is kept by the inspector; one is sent to a government analyst; one is returned to the drug store owner; and the fourth is sent to the manufacturer.

An inspector shall send the sample to the government analyst by registered mail or hand in a sealed packet enclosed with a memorandum on Form 18 in an outer cover addressed to the government analyst. A copy of the memorandum and a specimen impression of the seal are sent separately by registered mail to the government analyst. 

In the event of a raid or seizure of medicine at a manufacturing facility, three seized samples are prepared using the same procedure. The Inspector keeps one sample to present in court. The second sample is given to the manufacturer, and the third sample is sent to the government analyst for analysis.

Following receipt of the analysis report, appropriate action is taken. Regular sales are permitted if the report is satisfactory. If it is not satisfactory, legal action will be taken.

Any physical assault or threat made in writing or over the phone to an inspector while he is performing his duties is considered an offence punishable by imprisonment for up to three years, a fine, or both.

Government analyst 

Government analysts are appointed under Section 3(c) by the central government and state governments to test or analyse drugs and cosmetics. They work in Central Drugs Laboratories and the state and Union Territory’s drug testing laboratories.

Duties of a government analyst 

A government analyst has to perform the following duties:

  • To analyse samples sent by the Inspector, Custom Officer, or other person in accordance with the provisions of Chapter IV of the Act and to prepare a detailed analysis report in triplicate. The entire protocol of the analysis test should be provided. The report should be sent in a sealed envelope to the Customs Department or the Drug Inspector, depending on the situation.
  • Send reports to the government about work done, research done, publications, if any, and keeping drug and pharmaceutical information up to date.

Before beginning analysis, the government analyst should verify the seal and ensure proper custody of the sample sent for analysis. The analytical report should be submitted in triplicate to the inspector or the appropriate person on Form 13. Form 14-A is used for a purchaser’s request for testing or analysis, and Form 14-B is used for the analysis report.

Licensing authority 

This authority is concerned with the issuance of licences for the sale and import of drugs and cosmetics within a particular jurisdiction. Each member of such an authority must be a graduate in pharmacy or pharmaceutical chemistry or in medicine with a specialisation in clinical pharmacology or microbiology. They also must have five years of experience in the manufacturing or testing of drugs.

The duties to be performed by the licensing authority are as follows:

  • To inspect all drug-selling establishments within the area assigned to him.
  • To ensure that the licence conditions are followed.
  • To obtain and, if necessary, send imported packages for testing or analysis.
  • To look into any complaints.
  • To keep a record of all inspections performed and actions taken in the performance of his duties.
  • To conduct such inquiries and inspections as may be necessary to detect drug sales in violation of the Act.

Regulating the import of drugs 

In order to regulate the import of drugs, certain conditions must be met for all types of drugs. The following sections deal with the conditions for each type. 

Import of drugs for personal use 

  1. If the drugs are a part of the passenger’s luggage, up to 100 doses of the drug may be imported without any permit. 
  2. If the number of doses exceeds 100, a licence has to be issued for import,  the application for which can be filled out on Forms 12-A and 12-B. 
  3. The drugs must be for bona fide personal use. 
  4. If the custom collector directs, the drugs must be declared to them. 

Import of drugs for examination, test, or analysis 

  1. In order to import drugs for the purpose of examination, test, or analysis, license is needed under Form-11.
  2. The imported drugs must be used only for the purpose stated and at the specific place mentioned in the licence.
  3. The record with respect to quantities, the name of the manufacturer, and the date of import must accompany the drugs. 
  4. An inspector must be allowed to inspect the premises and check records. 

Import of drugs without licence 

Some drugs are eligible to be imported without a licence. These are:

  1. Those substances which are not used for medicinal purposes. 
  2. Drugs under Schedule C, which are required for manufacturing purposes.
  3. Substances like powdered milk and cereal oats, which are both drugs and foods.
  4. Pre-digested foods. 

Prohibition on the import of certain drugs 

A number of drugs are completely prohibited from being imported. Given below is a list of the same:

  1. Substandard drugs or cosmetics.
  2. Misbranded, counterfeit, or adulterated drugs or cosmetics.
  3. Importing  those drugs or cosmetics which require a licence.
  4. Any patent or proprietary medicine that does not have a true formula or a list of active ingredients and their amounts.
  5. Any drug or formulation which claims to prevent or cure diseases mentioned in Schedule J.
  6. Any drug or cosmetic whose manufacture, sale, or distribution is illegal in the country of origin.
  7. Any drug that is not packed or labelled in accordance with the provisions of the Act.
  8. Any cosmetic that contains an ingredient that may make it unsafe or harmful.
  9. Any drug or cosmetic whose import is prohibited by the Act.

Penalties under the Drugs and Cosmetics Act, 1940 

The offences and penalties under the Act can be summed up as follows:

  • Any adulterated or counterfeit drug or cosmetic imported into the nation in contravention of the Act’s requirements is punishable by up to three years in prison and a fine of up to 5,000 rupees.
  • Any medicine or cosmetic other than the one mentioned in the above point that is illegally imported is subject to a six-month prison sentence, a fine of Rs. 500.00, or both.
  • Any medication or cosmetic imported in violation of the terms of a notification issued under Section 10A is punished by up to three years in prison or a fine of Rs. 5000.00.

Drugs and Cosmetics Rules

In order to supplement the Drugs and Cosmetics Act, 1940, subsequent sets of rules have also been introduced to accommodate the changes in the pharmaceutical industry due to technological advancements and other changes in the field. 

Drugs and Cosmetics Rules, 1945

The Drugs and Cosmetics Rules, 1945 are Indian government regulations enacted in order to complement the Drugs and Cosmetics Act, 1940. These rules categorise medicines according to timetables and provide storage, sale, display, and prescription guidelines for each timetable.

The Drugs and Cosmetics Rules of 1945 include provisions for categorising drugs into schedules, as well as guidelines for storing, selling, displaying, and prescribing drugs within each schedule. Rule 67G specifies the terms of licences. Rule 97 specifies the labelling requirements. It also established that the Drugs Technical Advisory Board is the highest decision-making authority when it comes to drug technical specifications.

The New Drugs and Clinical Trial Rules, 2019 

The Government of India published the New Drugs and Clinical Trials Rules 2019 (New Rules) in the Gazette of India on March 19, 2019.  The new rules are designed with the intention of promoting clinical research in the country and will alter the regulatory landscape for new drug authorization and clinical trial conduct in the country. The new regulations include provisions for encouraging clinical research as well as more complex topics like orphan drugs, post-trial access, and pre and post-submission meetings. The new rules are organised into 13 Chapters (with 107 Rules) and eight Schedules. Except for stem cell and cell-based products and veterinary vaccines, the new rules will apply to all biological products (human vaccines and r-DNA products).

Case laws 

Sri G Ramesh Reddy v. The State By Drugs Inspector (2013) 

This case relates to falsified medical products and Sections 18, 27, and 34 of the Act. 

Facts 

According to the accusations made by the petitioner, the respondent took samples of Pioneer Pharma’s Kranzox tablets and two other medications for testing and analysis by drawing from M/s. D.P. Pharma. The samples that were taken and the medications that were seized were sent for analysis, and the results showed that the quality of the drugs was not up to par. Following an investigation, it was discovered that M/s. B.L. Pharma Ltd. was the manufacturer of the medications and the respondent was its director. 

Judgment 

The judge, in this case, reaffirmed rulings in earlier cases of a similar kind, holding that a director may not be involved in a company’s daily operations. As a result, the director cannot be immediately implicated simply because of his position unless there is prima facie evidence that the director performed a specific act that led to the commission of the crime.

The State of Karnataka v. S.B. Shivashankar (2018) 

This case relates to an appeal for adequate punishment under Section 27 of the Drugs and Cosmetics Act. Let’s check out more details about the case.

Facts 

The respondent, in this case, was accused of selling drugs without a prescription. He carried out the sale of scheduled drugs without the presence of a registered pharmacist and also did not issue any sale bill for the same. He was convicted under Sections 18(a)(vi) of the Drugs and Cosmetics Act, 1940 along with Rule 65(2) and Rule 65(3)(1) of the Drugs and Cosmetics Rules, 1945 which is punishable under Section 27(d) of the Act of 1940. However, the accused only has to spend a day in jail till the rising of the court, and he was penalised with a fine of Rs. 10,000 and 3 months’ imprisonment in case he fails to pay this fine. The petitioners appealed to the appellate court under Section 374 of the Code of Criminal Procedure that this punishment is inadequate since the fine prescribed under Section 27(d) cannot be less than Rs. 20,000. The same was rejected. Hence they filed an appeal before the High Court of Karnataka praying for increased punishment as the punishment granted to the accused will lead to miscarriage of justice. 

Judgment 

The Karnataka High Court dismissed the appeal since the trial court had accepted the application of “plea bargaining” and the penalty on the accused was the result of the bargaining done by the petitioners and they had accepted the same. Hence, there was no ground to call for interference by the High Court on the same. 

The Drugs, Medical Devices and Cosmetics Bill, 2022 : the most recent step towards stringent regulation 

A draft Bill titled “The Drugs, Medical Devices and Cosmetics Bill, 2022” was placed on the table by the Ministry of Health and Family Welfare in early July and it invited public consultation till August. The Bill seeks to supplant the Act of 1940 since new factors now need to be introduced in the legislation for the pharmaceutical and medical fields in India. The proposed Bill’s primary objective is to ensure and offer comprehensive legislation to control that medical item marketed in a country are secure, efficient, and meet predetermined criteria of quality. One of the main purposes for introducing this Bill is to regulate medical devices and manufacturers of medical devices, since the old Act does not accommodate the same aspect. Some of the salient features of this Bill can be summed up as under:

  1. The Bill has introduced a new definition of medical devices and the setting up of a regulatory body.
  2. It has specifically broadened the regulations on the import of medical devices. 
  3. Another important aspect this Bill has inculcated is the regulation of Ayush drugs. 
  4. The Bill also introduces provisions for clinical trials for drug testing. 
  5. A highlight of this Bill is the regulation of online pharmacies since there are currently no specific and explicit rules relating to the sale for pharmaceutical products online. 
  6. The penalties for certain offences have also been maximised to create a deterrent effect. 

Conclusion 

In recent years, a lot of new players have emerged in the pharmaceutical market looking to make a profit in the health industry. Hence, it is important to ensure that they do not capitalise by putting the health of the people at risk. The Drugs and Cosmetics Act of 1940 is comprehensive legislation to ensure that there is efficient regulation of the pharmaceutical industry in India. It has sufficiently evolved and developed to accommodate changes with changing times, and the Act has negligible lacunae within itself. The definitions within the Act are very conclusive and have left no scope for further interpretation, which is good considering that any space left for abuse of the law in this respect could seriously harm the health and safety of the public. Hence, it is important to ensure that regulations under the Act are being complied with in the interest of public safety. The step taken by the government of formulating new legislation that will regulate medical devices as well is also highly applaudable. 

Frequently Asked Questions (FAQs) 

What kinds of cosmetics are prohibited from being manufactured?

There are certain kinds of cosmetics that are prohibited from being sold. These include:

  1. Misbranded or spurious cosmetics which are of substandard quality. 
  2. Cosmetics that contain hexachlorophene or mercury compounds.
  3. Cosmetics that contain colour with more than 2 ppm of arsenic, 20 ppm of lead, or 100 ppm of heavy metals. 

What are the classes of drugs that are prohibited from being sold?

The classes of drugs prohibited from sale are:

  • Misbranded drugs 
  • Spurious drugs 
  • Adulterated drugs that are not up to the quality standard 
  • Patent or proprietary drugs which have not disclosed the formula 
  • Schedule J drugs
  • Drugs that have expired
  • Drugs that are used for government schemes
  • Samples made for physicians

What does the Third Schedule of the Act deal with?

The Third Schedule categorises the drugs for which the Licensing Authority can issue a licence and permission.  

References 


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Judicial restraint

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This article is written by Prabha Dabral from IMS Unison University, Dehradun. This is an exhaustive article highlighting the importance of judicial activism and judicial restraint along with their limits.

It has been published by Rachit Garg.

Introduction 

There is a concept of separation of powers in our Constitution according to which a balance of power must be maintained between the three branches of the government (legislature, executive, and judiciary). The legislature passes the law, the executive is responsible for implementing the laws, and the judiciary interprets the law. Any citizen who suffers due to any action or any inaction of the executive appears before the judiciary to seek justice. Since the judiciary is the guardian of our Constitution and preserves our rights, it is considered the last resort of every citizen. 

The judiciary is not just a mere spectator. Under judicial activism, the judiciary has the power to review the actions of the other two branches of the government through the process of judicial review. It is the proactive role of the judiciary in protecting the rights of citizens. Sometimes, the judiciary encroaches into the domain of the legislature or executive. This practice of the judiciary is known as judicial overreach and has often been criticised for its over-interference. Hence, the concept of judicial restraint was introduced. These are the two alternative judicial philosophies that judges use while making a decision.

Judicial activism and judicial restraint are two sides of the same coin. Hence, one can not speak of judicial restraint as a concept without speaking of judicial activism. This article covers all the aspects of judicial restraint, along with a brief introduction to judicial activism and judicial overreach.

Judicial activism

It is presumed that laws are capable of solving any dispute before the court; therefore, the legislature makes laws to protect the rights of the citizens. But what happens when there is absolutely no guidance for addressing a factual situation before the court? This is when judicial activism comes into the picture.

Sometimes, the judiciary has to come forward and review the actions of the executive to protect the rights of the people and provide socio-economic justice to the people. This happens when legislation is not able to properly perform its function.  This is judicial activism. In other words, judicial activism is the active role of the judiciary in preserving the constitutional and legal system of the country by upholding the rights of the citizens. 

One of the methods of judicial activism is judicial review. As per Article 13 of the Constitution of India, if any law made by the legislature does not conform to the Constitution, then the judiciary can declare that particular law to be null and void. Judicial activism acts as an effective tool for implementing constitutional principles and citizens’ rights when the executive and legislation fail to do so. 

The approach of judicial activism has become quite effective since the days when a national emergency was declared in the year 1975. That happened because the power of the Lok Sabha was misused by the government. That was considered a black day for the whole country. As the emergency ended, the judiciary became very active, and in recent times,  the active role of the judiciary has increased many folds. It has been really active in reminding the government servants to do their duties properly, warning the officers to look after the environmental pollution, taking steps to stop illegal construction going somewhere on the roadside, etc. 

The landmark case of Vishaka v. State of Rajasthan (1997) perfectly defines the need for judicial activism. In this case, the Supreme Court stated that it has become important for the Court to lay down guidelines for the proper treatment of women in workplaces since there is an absence of enactment related to gender equality laws against sexual harassment. The Court even directed that these guidelines be treated as a law under Article 141 of the Constitution until and unless legislation has been enacted for the same. This case led to the passing of the Prevention of Sexual Harassment at Workplace Act 2013, also known as the POSH Act. Similar to the Vishaka guidelines, POSH laws adopt the three-pronged approach of prohibition, prevention, and redressal to deal with the menace of sexual harassment. The POSH laws go one step ahead of the Vishaka guidelines by providing details and expanding various aspects of the law provided by the Vishaka guidelines.

Methods of judicial activism

Judicial activism can take place through various methods. They are as follows:

Judicial review

The most common method is judicial review, in which legislative and executive actions are reviewed by the judiciary. It basically gives power to the Supreme Court to examine the constitutionality of any law. It can even declare a law unconstitutional in the event that a law is found to be inconsistent with the provisions of the Constitution. 

Public Interest Litigation (PIL) 

In this, a suit is filed in a court of law for the protection of the public interest. Initially, PIL was initiated to improve the disadvantaged sections of society who were not in a position to seek justice. The first case of PIL was Hussainara Khatoon v. State of Bihar (1979). In this case, an article was published stating the inhuman conditions of undertrial prisoners. The apex court accepted it and held that under Article 21 of the Indian Constitution, the right to a speedy trial is a fundamental right. 

Constitutional interpretation 

It is a method in which interpretation is done through the text of the Constitution and its “original history”. 

There are many other examples of judicial activism. For example, in the case of, G. Satyanarayana v. Eastern Power Distribution Company (2004), it was held that if a worker is dismissed on the ground of misconduct, then a mandatory inquiry should be conducted. This judgement given by Justice Gajendragadkar added regulations to labour law which were ignored by legislation.

What is judicial restraint 

Judicial restraint is a concept that encourages the judiciary to limit the exercise of their judicial powers. In other words, a judge is restrained from injecting his or her own preferences into the legal proceedings.

Judicial restraint is considered the opposite of judicial activism, in which judges are restricted from interfering with democratic politics. It is necessary as it lets the ordinary political process operate. It favours democratic self-governance by leaving the policy to the policymakers. 

The concept of judicial restraint clearly states that the judiciary must be careful. The role of judges should be limited, and their job must be to interpret the laws. In other words, the court should not unnecessarily interfere with the organs of the government.

Methods of judicial restraint

There are various methods through which judicial restraint takes place. They are as follows:

Through precedents

Precedents are the past decisions in earlier cases. The judges respect the principle of upholding established precedent handed down by past judges. This principle is also known as stare-decisis. 

By referring to the intent of the framers of the Constitution

Judges refer to the original intent of the legislature that wrote the law in making their decision. 

There are many examples of judicial restraint. For example, in the case of the State of Rajasthan v. Union of India (1977), the Supreme Court decided not to indulge in the matter because it involved some political inquiry. Therefore, supporting the principle of judicial restraint.

Significance of judicial restraint 

The significance of judicial restraint is mentioned as follows:

  1. It helps in maintaining the separation of powers. Instead of the court legislating from its bench, the executive and the legislature are doing what they are actually responsible for.
  2. It allows courts to focus on delivering their own duties. It saves time as there have been cases pending before the court for half-a-century. The court won’t waste any of its time on unnecessary domains like. Rather, it should nudge the executive to come up with laws in a specific period of time.

In the year 2007, there was a case of Divisional Manager, Aravali Golf v. Chander Hass & Anr. on 6 December, (2007), in which the Supreme Court asked the subordinate courts to exercise judicial restraint. It was held that each organ must have respect for other organs as per the doctrine of separation of powers. The Court also laid down two crucial functions of judicial restraint. The first function of judicial restraint is to encourage equality among the three branches by minimising inter-branch interference by the judiciary. The second function is to protect the independence of the judiciary. If judges act like administrators or legislators, then it follows that they should be elected like legislatures or selected and trained like administrators, and this would be counterproductive. Moreover, the Court even quoted from the book ‘The Spirit of Law’ by Montesquieu in the judgement. The Court said that the warning given by the French political philosopher on the consequences of not maintaining separation of powers among the 3 organs is very apt for the Indian judiciary today. As in this era very often, the judiciary is criticised for overreach and encroachment on the domains of the executive and legislature. 

Judges on judicial restraint 

The Constitution of India has not made the judiciary a substitute for the other two organs. Therefore, the need arises for the judiciary to lay down its limitations. 

The former Chief Justice of India (CJI), Justice A.S. Anand, talked about judicial restraint in a public lecture. He said that judges need to be self-disciplined while discharging their judicial functions. The worst result of judicial activism is unpredictability. There may come a time when judges may issue directions as per their personal fancies. Hence, judges must exercise judicial restraint so that judicial activism does not become judicial adventurism, which is an extreme form of judicial activism. 

In the case of S.R. Bommai v. Union of India (1994), the Supreme Court held that the exercise of power under Article 356 of the Constitution was a political question. Therefore, the judiciary should not interfere. Justice Ahmadi said that if the courts examine the political decisions then they would be entering the political domain and questioning the political wisdom. And this is what the court must avoid. 

Another case of Almitra H. Patel v. Union of India (2000) talked about making Delhi clean. The issue, in this case, was whether directions regarding making Delhi clean should be issued to the Municipal Corporation. The Court held that it could only direct the authorities to carry out their duties. It is not for the Supreme Court to direct them as to how to carry out their basic functions and resolve their difficulties. 

The Indian Supreme Court had been conservative in the initial years but later became active through judicial activism. For example, Article 37 states that the Directive Principles of State Policy (DPSP) are unenforceable. But the Supreme Court has made many of the DPSPs enforceable by reading them with certain fundamental rights. Just like in Unnikrishnan’s case, where the right to education was read into Article 21.

How is it different than laws in the US

The Constitution of the US has created a federal system of government in which power is shared between the two governments, i.e., the federal government and the state government. Due to this federalism, both governments have their own systems of courts. 

As per the American legal theory, the judiciary is there to check whether the legislative and executive are functioning properly. It says that the judges in the federal or any other courts in the United States are undemocratic, i.e., they are non-elective. They are not there to represent the decisions of the citizens of America and do not represent the popular will of the country.  Those judges are there because they belong to the judicial class. Hence, they can not interfere with the functioning of the legislative and executive. The power to make laws must be given to more democratic forms of government. This is why judicial restraint is considered desirable there. Moreover, being a court of law, an inheritor and custodian of the Anglo-American legal tradition, it ought not to go too far to the level of politics, the law being the reason for judgement.

The term judicial restraint has a long history in American legal theory. In one of the cases, Fletcher vs. Peck (1810), the US Supreme Court stated that judges should strike down a law only if they feel a clear and strong conviction. In the second half of the 20th century, judicial restraint became a common conservative political theme during the tenure of Chief Justice Earl Warren (1953-69). In general, judicial restraint was considered desirable on the grounds that the role of making policies must be given to democratically elected officials only.

There are several points that make the concept of judicial restraint in the US different. One of them is that in the US, if the judiciary crosses its limit, then the judiciary is itself at risk. The reason being that the powers of their judiciary are dependent upon the Congress of the United States (consisting of the lower body, the House of Representatives, and the upper body, the Senate), and if they try to cross the limits, the Congress may restrict such action.

The Ashwander Rules

In the case of Ashwander v. Tennessee Valley Authority (TVA) (1936), Justice Brandeis put forward certain rules for the US Supreme Court for it to decide constitutional matters only when it is necessary. These rules are known as the Ashwander rules or Brandeis rules

The rules are as follows-

The rule against feigned or collusive lawsuits 

The court must not pass its judgement upon the constitutionality of legislation in a friendly, non-adversary proceeding. Deciding such questions is legitimate only if it is extremely necessary.

Ripeness

The court must not resolve constitutional matters prematurely, i.e., before it is extremely necessary.

Judicial minimalism

The questions of Constitutional law must be decided narrowly. The court must not formulate a law more broadly than is required by the precise facts to which it is to be applied.

The last resort rule

The court must prioritise resolving a case on non-constitutional grounds rather than on constitutional grounds.

Standing and mootness

The complainant should suffer an actual injury before the court may pass upon the validity of a statute.

Constitutional estoppel

A party must not challenge the constitutionality of a law when he himself enjoys the benefits of it. The court must not pass an order on the constitutionality of a statute in such an instance.

Constitutional-doubt canon

If a serious doubt about constitutionality is raised, the court will first ascertain whether a construction of the statute is possible by which the question may be avoided.

Reasons for exercising judicial restraint

  1. If the judiciary is interfering with the proper functioning of the other two branches, then it is violating the doctrine of separation of powers. So, judicial restraint helps limit the powers of the judiciary so that all three organs can function without entering into the domain of each other.
  2. The administrative authorities (i.e., district officers, income tax chief commissioner, etc.) are there because they are the experts in their particular field. If they have taken a decision in their official capacity, then it must be given respect. The judiciary must not embarrass the administrative authorities while giving judgement and must not humiliate them by interfering in their domain. If their decision is to be criticised, then it should be done with proper logic and manner. Hence, judicial restraint is important.
  3. The judiciary has a lot of pending cases, thereby, they must focus more on disposing of the pending cases.
  4. In a democratic country like India, if the legislative and executive organs of the government are not functioning properly, then the citizens have the right to revolt against the corrupt government and remind them of their duties. One of the ways of protesting is through peaceful demonstrations or peaceful strikes. The judiciary need not interfere every single time. It can merely give a mild reminder to the other organs rather than make laws themselves.

Its relevance to the concept of democracy

The basic difference between democracy and the other forms of government is that in a democracy, the people’s will is supposed to be run through an elective representative that represents them.  The elective representatives are the MLAs (Members of the Legislative Assembly) and MPs (Members of Parliament). They are there because they derive their authority from the election. They are elected by the people and represent the will of those people. Therefore, whatever they say is assumed to have the blessings of the people who have voted for them. 

On the other hand, a judge is appointed and not elected by the common people. Hence, there can not be too much power in the hands of those who are not elected by the people. They should not be given too much power to decide what the law must be. Otherwise, it would go against the system of democracy. That is why judicial restraint plays an important role in our system. 

Difference between judicial restraint and judicial overreach 

When the judiciary uses judicial authority to define and enforce what is right for society, it is known as judicial activism. But when the judiciary exceeds its jurisdiction and interferes with the legislative and executive branches of the government, it is known as judicial overreach. In other words, when judicial activism crosses its limit, it is called judicial overreach.

On the other hand, judicial restraint is the exact opposite of judicial activism. It is a theory that restricts judges from exercising their own power. In other words, it encourages judges to interpret the law rather than intervene in policy making.

Here are some of the cases of judicial overreach. The judiciary tends to overreach, and this often causes conflict between legislature and judiciary. Here are some examples. In a recent case, Rajib Sharma v. The State of West Bengal (2019), a BJP (Bharatiya Janata Party) Yuva Morcha leader, Priyanka Sharma, shared a meme on a social networking site. In her bail order, the Supreme Court asked her to apologise for sharing such a meme. The court said that the freedom of speech under Article 19(1)(a) of the Indian Constitution ends when it infringes upon others’ rights.

The following are the major differences between the two-

S.No.Judicial restraintJudicial overreach
Judicial restraint is the antithesis (opposite) of judicial activism.When judicial activism goes overboard, it is referred to as judicial overreach.
Judicial restraint is a theory that encourages judges to limit the exercise of their own power.Judicial overreach refers to the act of the judiciary interfering with the proper functioning of the legislative and executive organs of the government.
Judicial restraint is desirable as the courts are supposed to interpret the law and not intervene in policy-making.Judicial overreach is undesirable in a democratic country as it breaches the principle of separation of powers.

Difference between judicial activism, judicial overreach and judicial restraint

DifferenceJudicial activismJudicial overreachJudicial restraint
MeaningIt is the proactive approach of the judiciary.It is a situation when judicial activism goes overboard or crosses its limits.It limits the powers of the judges to strike down the law.
Desirability Desirable only if the court intends to preserve the rights of the people and not criticise the government. Undesirable Desirable
UsageWhen there is a need for judicial intervention to preserve the legal system. No usage in a democratic system as it breaches the principle of separation of powers.When another grievance redressal mechanism is available and there is scope to maintain separation of powers.
Examples The courts taking up suo moto cases, the introduction of PILCensorship of the Film Jolly LLB II in, where the Supreme Court acted as a censor and violated both the Cinematograph Act, 1952 and Article 19(2) of the Indian Constitution.When the court refuses to interfere with legislative decisions unless they explicitly violated the Constitution.
Famous Supreme Court casesVishaka vs. State of Rajasthan (1997)Shyam Narayan Chouksey v. Union of India (2017)S.R. Bommai vs. Union of India (1994)

Conclusion

From the history of the country, it is very clear that judicial activism has played an important role in taking care of the evils in our society relating to jail reform, the environment, personal liberty, etc.  But this role must have limits too. Just like any other organ of the government, the judiciary also must know the limits. They must stop unjustifiably trying to perform the functions of the legislature and the executive.

When the judiciary starts thinking that they can solve all the problems in society, the judiciary can no doubt intervene in extreme cases as well. This can violate the delicate balance of power that is enshrined in the Indian Constitution. Instead of interfering in the domains of the other two organs, the judiciary can nudge the two organs to function properly.

Frequently Asked Questions (FAQs) 

When should the court use judicial restraint?

Judicial restraint is a theory of judicial interpretation. Judges are supposed to exercise judicial restraint if they are hesitant to strike down laws which seem obvious to not be unconstitutional.

How are judicial activism and judicial review related?

Judicial activism refers to the pro-active approach of the judiciary to solving or improving a situation. On the other hand, judicial review is one of the methods of judicial activism. 

Judicial review refers to the act of the judiciary determining the validity of a law passed by the parliament. For example, if parliament passes a law which is not in compliance with the Constitution of India, then the judiciary can strike down such a law under the power of judicial review.

References 

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Deterrent theory of punishment

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This article is written by Mrinal Mukul, a law student at O.P. Jindal Global University, Haryana. This article seeks to elucidate the various aspects of deterrent theory of punishment and show how effective it is in stopping heinous crimes. 

It has been published by Rachit Garg.

Introduction 

In our day-to-day life, we see so many criminal cases happening in our society. But what is the solution to this? How can we control such crimes in our society? For such reasons, the deterrent theory comes into place, because it explains how we can create fear among people before they commit heinous crimes. 

In the deterrent theory of punishment, the word ‘deterrent’ means to abstain from any wrongdoing. The main goal of this theory is to deter criminals from attempting to commit a crime or repeating the same crime in the future. Deterring crime by creating fear is the main goal. Simply put, according to the theory, if someone commits a crime, they will be punished with a severe sentence; people will be aware of such punishments, and because of this fear in people’s minds, people will stop committing any crime or wrongdoing. 

The article deals with the importance of deterrent theory in our society and its effect on law obedience.

What is the deterrent theory of punishment 

The result of any crime is punishment. The primary purpose of punishment is to reform criminals and turn them into good-hearted people and make them law-abiding citizens.

The deterrent theory of punishment is utilitarian in nature. To understand better, for example: ‘This person is punished not only because he has committed an illegal act but also to ensure that no crime will be committed again.’ By making potential criminals aware that crime is not worthwhile, the deterrent theory hopes to control the crime rate in society.

The term ‘deterrent’ has many meanings. Deterrent can be understood as discouragement, which attempts to stop evil minds from taking wrong and illegal paths. Out of the five doctrines of criminal jurisprudence, that is, deterrent, retaliation, prevention, reformation, and expiatory theories; this theory establishes the dire consequences, i.e., punitive actions against the wrongdoer to curb the menace. Such actions also deter criminals from committing the crime the next time. 

In 2013, an article by Daniel S. Nagin, “Deterrence in the Twenty-First Century,” very vividly explains some of the main points of deterrent theory, which can be summarised as the fear of being caught is far worse than severe punishment. When the justice system has shown the power to catch criminals, this alone can become a dreadful psychosis in the hearts of other criminals. Strategies used by police officers, such as sentinels and hotspot policing, are really effective in overcoming the threat. The behaviour of criminals is more likely to be affected if they see uniformed police with handcuffs and guns rather than the strict penal provisions on paper.

It can be seen that the punishment of the death penalty has not been very effective in deterring society’s most heinous crimes over the years. In the face of the increasing number of rape cases over the past few decades, it is very frustrating that crime has not been completely stopped. Some socially rational thinkers might argue that crime has been stopped to some extent. However, in a civilised society like ours, where we talk about internationalism, social networks at our fingertips, and advances in modern high-tech science and whatnot, will there be a place for a crime where the very basic rights of human existence are denied to the better half of society? The continuous worry about the increased rate of crimes disallows a fearless living to the weaker (yet stronger) sex of the society.

There is no end to this, but the legal system is incessantly improving its laws, policies, procedures, and interpretations to curb crime and make our society more civilised and decent. After all, it is only when society is civilised then the laws on humans will reflect.

Types of deterrence 

There are two types of deterrence: – 

Specific deterrence

This type of deterrence acts on a specific individual. The idea of ​​specific deterrence is that when a perpetrator is severely punished for his misconduct, he will not be tempted to commit similar crimes in the future. For example, if an armed robber is sentenced to 8 years in prison, the specific deterrence makes it less likely that he will commit another armed robbery when he is eventually released. However, research shows that the effectiveness of specific deterrents varies from situation to situation.

General deterrence 

General deterrence is designed to deter the public from committing the same crimes as those already convicted of such offences. General deterrence is more focused on teaching lessons to the public and not just individuals accused of a crime. The idea is that if an individual is severely punished, the public will see the severe punishment and be dissuaded from engaging in the same or similar activities. A good example is the death penalty. When a criminal is sentenced to death for a crime, such a sentence prevents the public from committing the same or similar crimes.

Deterrent theory in context of jurisprudence  

The concept of deterrent theory can be simplified by the work of philosophers such as Thomas Hobbes (1588-1678), Cesare Beccaria (1738-1794), and Jeremy Bentham (1748-1832). These social contract thinkers give the basis of modern deterrence in criminology.

In the words of Hobbes, he thought that people generally pursue their own self-interests, such as material interests, social reputation, etc., and make enemies regardless of whether they harm others in the process. This often leads to conflict and resistance as people are determined to pursue their own interests. To elude this, people agree to let go of their egocentricity until everyone is doing the same thing. This is called the “social contract.” According to social contract theory, individuals are punished for breaking the law, and a deterrent is a reason for upholding the agreement between the state and the people in the form of a social contract.

Cesare Beccaria believed that when discussing punishment, in order to have a deterrent effect or deterrent value, the proportion of crime and punishment should be equal. He followed Hobbes and other 18th-century enlightenment writers by arguing that laws should be judged on their propensity to afford  “the greatest happiness shared by the greatest number.” Since people are usually selfish, they will not commit crimes if the cost of committing crimes outweighs the benefits of engaging in undesirable acts. If the sole purpose of punishment is to prevent crime in society, Beccaria argues, “the punishment is unjust when it is more severe than what is necessary to achieve deterrence.” Excessive strictness will not reduce crime; in other words, it only increases crime. In Beccaria’s view, prompt and definitive punishment is the best way to prevent and control crime; punishment for any other reason is capricious, redundant, and repressive.

Jeremy Bentham, a contemporary of Beccaria, was one of the most prominent intellectuals of the 18th century. Bentham believed that morality is what promotes “the greatest happiness of the greatest number,” a common expression of Beccaria. In Bentham’s view, the duty of the state is to “promote the happiness of society by punishing and rewarding.” Like Beccaria in Italy, Bentham was concerned about arbitrary punishment and barbarism found in the criminal codes of his time in England. He asserts that all punishments are inherently evil unless the punishment is to avoid a greater evil or to control the criminal’s behaviour. Simply put, the law’s purpose is to increase people’s happiness and reduce the community’s suffering. Penalties that exceed those necessary to deter illegal conduct are unreasonable.

Components of the deterrent theory 

Severity 

Severity indicates the degree of punishment. To prevent any crime, criminal law must emphasise punishment to encourage citizens to obey the law. The severity of punishments has long been considered a key factor in deterring criminal behaviour. As a result, the legislature relies on the use of harsh sanctions to deter crime. However, until the 1960s, few studies examined the deterrent effect of harsh penalties. Preliminary research supports the theory that harsh punishments can deter crime. Multiple studies examining homicide rates have found that the severity of penalties for homicide acts as a deterrent. When the examination expanded beyond homicide, it was a different scenario altogether. The severity of the sentence had a positive impact on crimes such as rape, battery, theft, robbery, and burglary. That is, the severity of the punishment did not deter crime. If anything, it would have the opposite effect. Severe penalties can be used for other valuable purposes in criminal justice policy. They can incapacitate certain people and prevent them from committing crimes for a certain period of time; they can publicly condemn certain actions; or they may provide an opportunity to provide rehabilitative treatment. However, some studies have found that harsh penalties rarely, if ever, have a deterrent effect. In essence, severity includes making a punishment harsh enough that an audience will be fearful of receiving it. If punishment is too brutal, the crowd may “cry foul” and dissent; if it’s too lenient, it may not prevent test cheats and pirates from perpetrating their misdeeds. 

Certainty

The certainty of punishment is often considered more important than the severity of the punishment. Research shows that certainty is a far greater deterrent than severity. In terms of certainty, subjective certainty is more important than objective certainty. That is, one’s belief about whether punishment is likely is more important than the fact that punishment is, or is not, actually likely. This subjective belief may come from the public, but more often, it comes from personal experience or anecdotal information from others in the community.

Perceptions of risk can also be influenced by substance use, the presence of peers, and other situations that affect a person’s emotional responses. As with severity, increasing the certainty of punishment appears to lead to diminishing returns. As Becker points out, there is a balance in terms of certainty. Raising the probability of arrests and convictions to 100% would have huge societal costs, including paying for a vast police force and giving up personal privacy and freedom.

Celerity

The punishment for any crime must be swift to deter the crime. Celerity, the speed at which a person is punished for breaking the law, has received the least attention in the literature. Research suggests that the speed of punishment may not be a deterrent effect. At least one study showed that individuals prefer to get their punishment over as early as possible. If this is correct, delayed punishment may be seen as a worse consequence than immediate punishment.

In conclusion, economic models of deterrents suggest that most crimes are committed by rational people who consider whether the crime is worth the risk of possible punishment. The theory holds that more people will commit crimes without the threat of punishment. Scholars argue that increasing criminal certainty is more effective than increasing penalties for transgressions.

Therefore, deterrent theorists argue that if punishment is severe, certain, and prompt, a rational person will weigh the pros and cons before committing a crime. Due to this, the person will be deterred from committing a crime and violating a law. 

Deterrent theory in India 

Capital punishment and deterrent theory in India 

The Supreme Court in State of Karnataka v. Sharanappa Basanagouda Aregoudar (2002) rightly stated that: 

“The sentence imposed by the court should act as a deterrent on potential offenders and should be commensurate with the seriousness of the crime. Of course, when it comes to sentencing, courts have the discretion to assess a broad and diverse range of facts that may be relevant for fixing the quantum of sentence, but that discretion must be exercised with due regard to the wider interests of society, and needless to say, passing of sentence is probably the most public face of the criminal justice system. Courts have been reminded of the need to have punishments having a deterrent effect, especially for certain categories of crimes.”

For example, in the case relating to Section 364A, the Supreme Court ruled that in cases involving kidnapping for ransom, “although kidnapping did not result in the victim’s death, the crime required a deterrent punishment. Given the kidnapping of young children for ransom, the legislature, in its wisdom, provided for stringent sentences.” On the other hand, action must be taken as harshly as possible, and the courts are obliged. Protecting society and deterring perpetrators are the express goals of the law and must be addressed by imposing appropriate penalties. The court, at first instance, shall consider all relevant facts and circumstances affecting the sentencing and proceed to impose a sentence according to the seriousness of the offence.

There is no denying that “punishments should be made according to the gravity of the crime,” as the Supreme Court observed in State of M.P v. Bala@ Balram (2005). Such an approach is important to establish that a civilised society does not revert to the days of “eye for an eye and tooth for a tooth.” The lack of just punishment may prompt victims or their loved ones to seek retaliation, and that is exactly what is being sought to be prevented by the criminal justice system we have adopted. This philosophy is embedded in our law and jurisprudence, and it is the duty of the judiciary to take this into account, the court recalled. The Supreme Court has repeatedly stated that the sentence must be commensurate with the crime and that it is the court’s responsibility to impose an appropriate sentence based on the extent of the crime and the desirability of imposing such punishment.

Amid the chorus of reform measures, the Supreme Court emphasised “deterrent.” For example, in State of Madhya Pradesh v. Munna Choubey & Anr. (2005), the Supreme Court found that imposing sentences without regard to their impact on social order may actually be futile in many cases. The social impact of crime, such as crimes against women, fraud, kidnapping, embezzlement of public funds, treason, and other crimes of moral corruption, or crimes that have a major impact on social order and public interests, cannot be ignored, and per se require exemplary treatment. Any stance that imposes meagre penalties or over-benevolent view because of a lapse of time in respect of such offences will be counterproductive in the long run and against societal interests that need to be cared for and strengthened by a string of deterrents inbuilt in the sentencing system.

The social dimension in relation to deterrent theory in India 

According to the deterrent theory, people are punished with the view of conveying a ‘message’ to the rest of society that “it is wrong to act in certain ways, and if a person behaves in one of these ways and does not obey the law, society will punish him/her accordingly. The manifestation of social disapproval is punishment.” It is believed that conveying the message ‘creates a conscious and unconscious suppression of criminal behaviour.’ In the long run, this has led to the widespread perception of ‘habitual obedience’ at large to the laws that prescribe certain acts by way of meting out punishments. However, many people argue that it is debatable how far punishment acts as a deterrent among the people in any given society. 

For instance, in Shashi Nayar v. Union of India and Ors (1991), one of the arguments put forth against the death penalty because it violates Article 21 of the Indian Constitution, the death penalty does not serve a social purpose, and the barbaric penalty of death should not be given to anyone because it has no deterrent effect. It has been argued that the growing number of cases, despite strict criminal law provisions, indicates the failure of the deterrent theory. 

In the current distress of despair and chaos, if deterrent punishments are not restored, the country will be in chaos, and criminals will be released, endangering the lives of thousands of innocent people across the country. Despite all the resources at its command, it will be difficult for the state to protect or safeguard the life and liberty of all citizens if criminals are let loose, and deterrent punishment is either removed or mitigated. 

As a result, there is disagreement about the necessity and effectiveness of the theory. However, in the primacy of punishment in legal thought, the goal remains the protection of society, and other goals are often secondary in nature when sentences are being decided. 

Drawbacks of deterrent theory 

The deterrent theory failed because the victims in cases of murder, rape, etc., were helpless and the accused were not reported. Deterrent theory can only deter those who are not determined enough to act on their beliefs. Despite all kinds of deterrents, criminal minds still act on a whim at times. Penalties and sanctions have simply become mere obstacles that criminals have to overcome. This is clearly not what the Indian criminal justice system needs. Despite the harsh penalties and fines, the number of criminal cases has been increasing.

Some major drawbacks are: 

  1. Punishment does not create fear in the criminal’s mind once the punishment is over.  
  2. This type of punishment does not create fear in the hardened offenders’ minds.
  3. Arouse sympathy in the minds of the public for criminals. 

Example of the deterrent theory of punishment: rape cases continued to rise after the Nirbhaya verdict in Mukesh & Anr v. State For Nct Of Delhi & Onr (2017).  

According to the deterrent theory, the main goal is ‘to deter crime by inciting fear or setting an example for society. Now, the death penalty is a severe punishment. In the Nirbhaya case, the court sentenced four criminals to death for gang rape. Although this is a good example for future criminals who would consider committing crimes such as rape in the future. So, according to this theory, crimes like rape should not have happened after the Nirbhaya verdict. But they are still happening. Rape cases in our society are increasing every day.

The Nirbhaya gang-rape judgment was seen as justice for ‘India’s daughter,’ even though the decision came after several years. But it seems to go further, as rapes continue unabated, more specifically from early 2020 to 2022. So we can simply see that even harsh punishment does not improve anything. ‘The death penalty doesn’t stop rape’ – that’s the real message we get.

Relation between preventive theory and deterrent theory of punishment 

According to Justice Holmes, in the preventive theory of punishment, crime is deterred by disabling the offender, which is an objective that is also evident in the theory of deterrent. Many utilitarians, such as Bentham, Austin, and Mill, support the preventive theory because of its humanising capacity. The two theories are closely related because some form of deterrence prevents future crimes and ensures that those who have committed crimes do not engage in bad behaviour again. The development of penal systems is a product of prevention theory, which aims to prevent offenders from committing similar or different crimes. It focuses on more humane ways of punishing people, but in contrast to the deterrence theory, it states that the death penalty is a very severe form of punishment, and no one has the right to take the life of another. 

According to prevention theory, incarceration is the best way to prevent crime; it could effectively help disable criminals from repeating the offence. Since the death penalty is also part of a preventive theory, it is safe to say that it is another part of deterrence. One focuses on deterring society as a whole, while the other prevents offenders from committing crimes. One person cannot be punished to prevent others from committing the same crime. The deterrence theory states that sometimes the effect of punishment makes the offender see that he is not being used for the benefit of others. It works on the fact that individuals are punished only if the punishment serves as a boon for society. In other words, it will be successful when there is no harm to society by preventing future criminal prospects.

The preventive theory explains how its goal is to prevent crime, not just avenge it. Its main goal is to protect society from criminals by keeping the offenders in jail, thereby eliminating the potential danger caused by their presence. Under the deterrent theory, it focuses on establishing a criminal discipline that prevents any person from committing offences in the future. 

Conclusion 

Under the deterrent theory of punishment,  the basic premise is that punishment should be such that it deters the criminal from committing the crime. Most importantly, it impacts people’s minds that if they do illegal activity, there will be severe consequences to it. All in all, this deters the minds of people from committing such crimes. In most instances, people who believe they will be caught are less likely to commit crimes, that is, an appropriate level of punishment coupled with a high likelihood of being caught will likely deter some potential criminals.

In essence, the punishment so imposed prevents others from committing the crime. One of the criticisms of deterrent theory is that it treats individuals as means rather than the ends. However, how far the deterrent theory has been successful is still a debate in achieving the purpose it is believed to serve. At the end of the day, only time will tell how effective the deterrent theory of punishment is in maintaining a society free from all crimes.

Frequently Asked Questions (FAQs)

Why is the death penalty not a deterrent? 

If we take the example of the death penalty, then there is no proof that the death penalty deters criminals. People still commit crimes. However, people generally believe that if crimes are punished severely, it should prevent them from committing those crimes. 

Why does capital punishment have a deterrent effect?

There is no practical evidence that the death penalty deters crime more effectively than long-term imprisonment. Countries that still award the death penalty do not have lower crime or murder rates than countries without such laws.

Does the theory of deterrence provide justice? 

The main objective of the theory is to deter individuals from committing crimes, whether generally or specifically. It is to stop people from committing potential crimes; punishment is awarded to the individual who commits crimes. Justice will be served if the punishment is commensurate with the crime committed.

References 


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Private equity vs Venture capital

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share capital
Image source: https://bit.ly/32rTN7r

This article is written by Anant Roy pursuing a Diploma in Law Firm Practice: Research, Drafting, Briefing and Client Management at Lawsikho. This article has been edited by Ojuswi (Associate, Lawsikho). 

This article has been published by Sneha Mahawar.

Introduction

Private Equity (PE) and Venture Capital (VC) investments are showing significant growth every year. This is not just because of technological advancement and innovations but also because of a regime of prudent regulations which govern these investments. Since both the PE and VC investments are private placements, confusion with regard to their governing regulation always exists. To end the very confusion this article tries to differentiate between both PE and VC investments from a regulatory standpoint. In the end, the article also discusses a few precedents which have acted as catalysts for such investments.

What are Private Equity (PE) and Venture Capital (VC) Investments

Both forms of investments are private investments i.e., private investors make the investments in exchange for equity which provides ownership to the investor in the investee company. The major difference between PE and VC is in the intentions of the investors and in the type of company the investment is to be made.

PE investors invest in mature or well-established private companies. With this type of investment, the investor aims to buy majority stakes or all stakes in a company and will have a say in the operations of the company. This means the investors get the right to sell the company to make profits. This type of investment is made when the growth of the company is stagnant though the company might have a well-established business. One of the most significant PE buyouts in India was PE firm Carlyle buying majority stakes of Hexaware Technologies, a deal worth $3 billion.

VC investors invest in companies that are in the nascent stage with a high potential to grow. With this type of investment, the investors buy minority stakes in the company to get high returns in the future. This type of investment is usually taken by companies to have an industry expert onboard who could help the company grow. Here the majority stakes of the company are with the promoters hence the decision-making powers are in the hands of the promoters. This type of investment is riskier as the investment is made by looking at the possible prospects of the company. In India, VC investments are majorly made in Fintech, Software as service companies, and E-Commerce.

The question is there any difference between the VC and PE investment from a regulatory standpoint? To answer that some Indian regulations which govern both Indian and foreign PE and VC investment are discussed below. 

arbitration

Laws and regulations pertaining to private equity and venture capital in India

What we understand from the paragraphs above is that private equity is the umbrella whereas, Venture Capital investment is a type of private equity investment that focuses on smaller companies with high growth potential. But, is there any difference from a regulatory standpoint? 

In India, both PE and VC investments are regulated by the Securities Exchange Board of India (Alternative Investment Funds) Regulation, 2012 accompanied by the Companies Act, 2013 and the rules there.     

The Securities Exchange Board of India (Alternative Investment Funds) Regulation, 2012 

An Alternative Investment Fund (AIF) is a fund incorporated in India in the form of a trust, limited liability partnership (LLP) or body corporate, where the funds are collected from private investors. These funds shall not be covered under the Securities Exchange Board of India (Mutual Fund) Regulation, 1996 and Securities Exchange Board of India (Collective Investment Scheme) Regulations, 1999 or any other regulation of the board to manage funds. 

It has divided types of investments into three categories: 

  • Category I AIFs – These are investments that are made in start-ups or early staged companies, which also include venture capital funds, Small and Medium-Sized Enterprise (SME) funds. Recently, social impact funds and special situation funds were added to this category.
  • Category II AIFs – Any kind of investment which does not fall in Category I or III AIFs shall fall under Category II. 
  • Category-III AIFs – These funds use complex trading strategies and can invest equally in both listed and unlisted investee companies.

The explanation of both categories I and II clarifies that category-I includes Venture Capital funds and Category II includes Private Equity funds. Hence, from a regulatory perspective for domestic funds, there is a slight difference between both types of investments. Accordingly, there are different conditions applicable to both investments. While category-III is different from the other two categories. It involves investment in listed companies, short-term return, high risk and higher regulatory compliances. In domestic private equity investments, there are some conditions imposed on both PE funds and VC funds, which creates a small difference between the investments.    

Conditions and restrictions for Category-I (VC) and Category-II (PE) AIFs

Since both investments are made through private placement there are many similar regulations. Both the categories of AIFs shall have a minimum corpus of at least rupees twenty crores and with each investor investing not less than rupees one crore.  Also, in both the AIFs investment can be taken from resident, non-resident and foreign investors. Further, the sponsors shall have an investment in the AIF of a minimum of 2.5% of the corpus or rupees 5 crores, whichever is lower. The AIFs shall not have more than a thousand investors and shall not invite public investment and funds should be collected only through private placement. Both the categories of investment are close-ended funds with a minimum tenure of three years. Both categories shall invest not more than 25% of their investable funds. 

There are some mandates which are different for both categories. For category-I AIFs, investment can be made in the investee company, venture capital undertaking, special purpose vehicles, LLP and in the units of category-I AIFs of the same subcategory or the units of Category-II AIFs. Whereas category-II AIFs can invest in any investee company or units of category-I or II.

Further, a VC fund shall invest 75% of its investable fund in unlisted equity or equity of venture capital undertakings or listed or unlisted Small and Medium Enterprises (SME) on SME Exchange. Whereas, category-II AIF or a private equity fund shall primarily invest in unlisted companies or invest in other AIFs of category-I or II. Since it is not specified how much investment is to be mandatorily made in unlisted equity, Category-II AIFs have a larger scope to invest in listed companies. 

Foreign investment in private equity and venture capital undertakings 

In India, foreign private investment is regulated by different regulations. Both PE and VC investments have separate regulations. For example, PE investments are regulated by the annually issued FDI policy and Foreign Exchange Management (Non-Debt Instruments) Rules, 2019.  Whereas, foreign VC investments are regulated by SEBI (Foreign Venture Capital Investment) Regulations 2000. Let’s dive deeper into the intricacies of both regulations.

Foreign Private Equity investment

In India, foreign investment in private equity is governed by the annually issued Foreign Direct Investment (FDI) policy, which is regulated by Foreign Exchange Management (Non-debt Instrument) rules, 2019. 

As per the recent consolidated FDI policy 2020, FDI means investment through capital instruments by a person resident outside India in an unlisted Indian company. Further, there are two routes through which foreign private investment is allowed in India, the Government route and the Automatic route. In the Government route, a foreign investor needs approval from the Reserve Bank of India (RBI) or the Central Government. For Example, in the Print media industry, only 26% of FDI is allowed through the government route and 46% of FDI is allowed in the broadcasting industry through the government route. Whereas, in the Automatic route, no such approval is required. For example, in the pharmaceutical industry 100% FDI is allowed through an automatic route, telecom services 100% FDI is allowed. Also, there are some sectors that are prohibited from any foreign investment. For example, Atomic Energy, Railways, Lottery, Chit funds, etc.     

Foreign Venture Capital 

For a foreign venture capital investor to invest in any VC undertaking in India or VC fund registered under SEBI (Alternate Investment Fund) Regulation, 2012, it has to register itself with the board. 

Further, there are a few mandatory conditions for a foreign VC investor. The Foreign VC investor shall disclose the investment strategy to the board. It shall invest in only one VC fund or AIF. A foreign VC investor must invest 66.67% of investable funds in unlisted equity, the remaining 33.33% can be invested in the IPO of a VC undertaking, debt instrument of a VC undertaking or preferential allotments of equity shares of a listed company.

Further, foreign VC investors are subjected to inspections, which can be initiated on a Suo moto or on receiving any complaint regarding any default by the board. If after the inspection, the foreign VC investor is found with any default then the board may cancel the registration of the foreign VC investor.

Judicial pronouncements 

In India, judicial interventions are usually prolonged and sometimes end with verdicts that do not promote businesses. This is why companies try to avoid all sorts of judicial intervention and try to resolve disputes through outside court resolution. But sometimes disputes end up in courts. In the recent past, Indian courts have given pro-Business decisions. Some of such judgments are discussed below.

Edelweiss Financial Service Ltd. v. Percept Finserve Pvt. Ltd. and Anr.

In this case, Edelweiss got into a Share Purchase Agreement (SPA) with Percept where Edelweiss bought some shares of Percept. The SPA contained a put-option clause that allowed Edelweiss to re-sell the shares to Percept in breach of certain conditions. Edelweiss claimed a breach of those conditions under the SPA and wanted to exercise the put option. But Percept denied all the allegations of breach of conditions under the SPA and refused to comply with the put-option.

The arbitral award was in favour of percept and it was held that the put-option clause was a forward contract which is prohibited under Section 16 of the Securities Contract (Regulation) Act, 1956. The award was further challenged in the Bombay high court. 

The court decided that put-option is not a forward contract because both the delivery of shares and payment of the price is done simultaneously. The court also referred to its judgment in MCX Stock Exchange Ltd. v. SEBI, where it was held that put-options are not a forward contract. 

Though a proper clarification from the Supreme Court of India or the regulators is awaited, these judgments of the Bombay High Court have laid a foundation for the jurisprudence of the put-option clause in a SPA, which is a good exit strategy for investors. 

NTT Docomo INC v. Tata Sons Limited

As we know businesses avoid judicial interventions in dispute resolution and always look forward to arbitration as their primary dispute resolution mechanism. In this case, Docomo and Tata approached the London Court of International Arbitration (LCIA).  The award was passed in favour of Docomo and damages were awarded to Docomo which were to be paid by Tata.  

Later, Docomo approached the Delhi High court for enforcement of the decree, where RBI intervened and contended that since the award was in violation of FEMA regulations the award cannot be enforced. The court held that RBI did not have any locus standi in opposing the arbitral award and compromise between the two parties. This judgment not just acts as a precedent for recognition of foreign arbitral awards by Indian courts but also lays down that third-party intervention in arbitral awards is not permissible, even if the third party is a regulatory body.

Conclusion     

Indian regulations for PE and VC investments are quite similar. But, still, there is a lot of overlapping which does not allow you to completely distinguish between both. For example, the FDI policy is issued by the Department of Promotion of Industry and Internal Trade (DPIIT) and it only talks about private placements in Indian companies by foreign investors, but it also applies to any foreign VC investor who wants to invest in India through foreign VC investments are governed by a separate regulation issued by SEBI. This overlapping is hard to mitigate because of the fact that both investments are private investments.

Reference


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Functions of judiciary

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Judiciary

This article is written by Sambit Rath, a B.A. LL.B. student of Dr. Ram Manohar Lohiya National Law University, Lucknow. In this article, author aims to discuss the functions of the judiciary.

This article has been published by Sneha Mahawar.

Introduction 

Disputes are inevitable when people of two opposite ideas are in the same room. Every human is different, and that’s what makes us unique. However, these differences are the root of every dispute. But do all disputes have a negative consequence? Certainly not. Disputes are necessary for the intellectual growth of society as differing views on a subject matter ultimately allow people to look at things from a fresh perspective. As we all know, not all disputes are civil disputes. If parties are left alone without any restrictions, they might end up hurting each other. Thus, effective dispute resolution requires the existence of a third person with greater authority. Since ancient times, courts have played the role of the third person. These courts could be headed by the king or intellectually prominent people performing the role of an adjudicator. In modern democratic societies, these courts form one of the most essential organs of the state, the judiciary. It provides a platform for parties to raise their concerns and argue in a civilised manner, after which it makes decisions based on justice, equity, and good conscience. But dispute resolution is not the only function of the judiciary. Being one of the most essential organs, it has powers and functions that go beyond just resolving disputes. In this article, we shall take a look at all the functions performed by the judiciary.

Meaning of judiciary

According to the Cambridge English Dictionary, the judiciary is that organ of the government that is responsible for the legal system, which includes all the judges in the country’s courts. In other words, it is that branch of the government that interprets the law and administers justice to all citizens. It is the third organ of the government after the legislature and the executive, which is based on the doctrine of separation of powers. According to this doctrine, the power of the government is divided into multiple branches, among which the judiciary is one. Thus, it has independent powers and responsibilities vested upon it by the sovereign. 

Functions of judiciary

The functions of the judiciary are as follows:

Administration of justice 

The primary function of the judiciary is to ensure justice for the people. The courts play a huge role in deciding the fate of parties in a dispute. It also punishes people for committing crimes. When a case goes to court, the judge is responsible for ensuring justice for the parties by applying relevant laws present at that time.

Interpretation and application of laws

Laws are made by the sovereign of the country. These laws are made to regulate specific acts, and their ultimate goal is to maintain law and order in society. The role of the judiciary is to apply these laws to the cases that come before it to reach the correct decision. Throughout the years, the courts have developed ways to apply laws more effectively, which include the rules of interpretation. According to these rules, the courts may use the literal rule, golden rule, mischief rule, or any other rules of interpretation based on the requirement. Since there are cases of varying degrees, no matter how extensive the provisions of a statute are, they may not be adequate to cover all the issues of a case effectively. Thus, rules of interpretation help the courts to interpret the appropriate meaning of the terms of a statute so that it can remove the absurdity caused by the literal interpretation and do justice to the case at hand.

Protection of rights

The judicial system is empowered to strike a balance between the rights and obligations of citizens in the administration of justice. Since both the judiciary and the government have the power to alter the rights of people, there has to be someone to play the role of a protector. The judiciary protects the rights of citizens whenever there is an overreach on the part of the government. For example, when the UPA government introduced biometric data collection for Aadhaar ID, the Supreme Court upheld citizens’ right to privacy, which prevented the government from making it compulsory to possess an aadhaar ID. In a democratic system, there ought to be a balance between the legislature and the judiciary. But when the legislature tries to go beyond its limits and take away people’s rights, the judiciary makes sure that such action is declared unconstitutional or illegal. The judiciary also makes sure that the legislature doesn’t modify the constitution to its liking in the garb of amendments. It is, thus, the guardian of the constitution.

Judicial review

Since the judiciary is the protector of rights and the guardian of the Constitution, it goes out of its way to ensure the legislature is not making laws that restrict the rights of the people. Judicial review is the proactive measure used by the judiciary to review the actions of the legislature and the executive. There are three kinds of reviews, review of legislative actions, review of decisions, and review of administrative action. A review of legislative actions means the power of the court to determine the constitutionality of Acts made by the legislature. Judicial review of decisions includes determining the lawfulness of a particular decision or action made by a public authority. Administrative actions, although do not decide a right, they have the capability of affecting the rights of people. Thus, a review of administrative action includes determining the constitutionality of a particular action. 

Arbitration

The judiciary also performs the function of an arbitrator when there are disputes between the different state governments or between the central and state governments. For example, there are issues on which either the central or the state government can make laws, and in some, both can make laws. Sometimes these issues become a battle between the authorities of different governments. In such cases, the judiciary plays the role of an umpire, making sure both parties come to a reasonable agreement.

Advisory function

The courts, especially the higher ones, have the responsibility of advising the government or the equivalent head of state in legal matters. Since the judiciary consists of great legal minds in the country, the head of state can seek advice from the judges of the highest court in the country. This advice is not binding on the party seeking it and is thus advisory in nature. The party seeking advice may, if it so desires, choose not to follow the advice at all. Issues that involve matters of public importance are the ones that are mostly referred to the highest court for advice. 

Selection of judges

The judiciary also has the responsibility of selecting, transferring, or elevating judges. There are several methods followed in different countries for the selection of judges. In some parts of Switzerland, the judges are elected by the people, and in others, elections are conducted by the legislature. These methods are questionable as the reliability of the judge comes into question. This is because the judge might show partiality towards the party that sponsored his election. The theory of separation of powers is also violated due to the interference of the legislature in the domain of the judiciary. It hinders the independence of the institution. 

Miscellaneous functions 

Other than the above-mentioned functions, the judiciary also performs other miscellaneous functions. These include legal work like granting licences, patents, copyrights, the admission of wills, settling issues of the succession of property, administering estates of the deceased, dealing with marriages and divorces, etc.

Functions of the judiciary in India

To understand the functions of the judiciary specific to India, it is essential for us to know the judicial structure of the country. 

Structure of judiciary in India

The judicial structure of India is pyramidal and consists of the Supreme Court, High Court, District Court, and subordinate courts. 

The Supreme Court  

The Supreme Court of India replaced the Federal Court of India and the Judicial Committee of the Privy Council on 28th January 1950. It is the highest court in the country and the final court of appeal. It has 31 judges, including one Chief Justice. Precedents set by the court and its decisions are binding on all lower courts of the country. Articles 124 to 147 of the Constitution of India deal with the constitution, powers, and jurisdiction of the Supreme Court.

The High Courts

All the High Courts of all the States in India are on the same level and have the same powers. There are 25 high courts in total, and each has at least one state under its jurisdiction. The decisions of the High Courts can be overturned by the Supreme Court. Articles 214 to 231 deal with the jurisdiction and powers of the High Courts.

The District Courts

The District Courts are subordinate to the High Courts. These are present at the district level and they deal with both criminal and civil cases. When dealing with a criminal case, the District Court assumes the name of the Sessions Courts. The District Court and other subordinate courts derive their powers from Articles 233 to 237.

Administration of justice

The judiciary in India plays a huge role in administering justice to the people. All the legal disputes end up in the hands of the courts, and the judges ensure that the aggrieved party gets justice. The constitution allows citizens to approach the Supreme Court under Article 32 and the High Courts under Article 226 when their fundamental rights are violated. This shows the intention of the judicial system to provide justice and weed out injustice of any kind expeditiously. Time and again, the courts have prioritised the need for justice and have stood for what’s right, even if it means going against the majority in order to provide justice to minorities. For example: in the Sabarimala case, it was decided that women cannot be prohibited from entering the temple even after massive opposition from the majority. 

Interpretation and application of laws

The judiciary applies laws that have been enacted by the Parliament. The Parliament creates a substantive and procedural law dealing with a particular area, and the judiciary is expected to interpret and apply the law appropriately. Sometimes the case in hand would be subjected to injustice if the words in the statute were interpreted in their literal sense. In these circumstances, the courts are empowered to modify the meaning of the statute to make it appropriate for the case at hand. For example: In the case of the State of Madhya Pradesh v. Azad Bharat Financial Company (1967), the High Court modified the meaning of the provision in the Opium Act, 1950 to prevent injustice from being caused to the owner of the vehicle. 

Law-making

The Parliament is the institution that primarily makes laws in India. Bills are introduced in Parliament and they are enacted after a long process that includes voting by both Houses and the assent of the President. But it is not the sole law-making body, although it is responsible for the majority of laws that exist today. The judiciary in India has the authority to make laws too. The Supreme Court does this through the pronouncement of judgments, and these are binding on all the lower courts. The lower courts have to follow the precedents set by the Supreme Court while dealing with cases. 

Supervision of lower courts

High Courts have been given supervisory powers under Article 227 of the Indian constitution. As per this, the High Courts can supervise the functioning of all courts and tribunals which are under their jurisdiction, except courts and tribunals constituted by law relating to the armed forces. Apart from administrative supervision, the High Courts can, at the instance of any aggrieved person or suo motu, exercise the power of judicial superintendence over their subordinate courts. It can transfer cases from the subordinate courts to itself when the need arises. 

Judicial review

The judiciary in India is very active when it comes to restricting Parliament from enacting laws that affect the fundamental rights of citizens. Any law that is infringing on the rights of people is declared unconstitutional by the Supreme Court, and that law ceases to exist. This power would have been limited had it only been applicable when a case comes to court. But fortunately, it is not restricted as the Court can take suo motu cognizance and review the rules and legislation made by Parliament. For example, in the case of Mithu v. State of Punjab (1983), the Supreme Court held Section 303 of the Indian Penal Code, 1860 unconstitutional. Thus, the judiciary guards the constitution and the fundamental rights of the citizens. 

Arbitrator

The Supreme Court acts as an arbitrator when there are disputes between states or between a state and the central government, as per Article 131. For example, in the case of the State of Karnataka v. Union of India (1977), it was held that the Centre under Article 256 can issue directions to a state as a legal entity and not as a geographical unit. 

Advisory 

As per Article 143 of the Constitution of India, the judiciary has advisory jurisdiction. The President of India can refer cases to the Supreme Court for cases where there is a substantial question of law or a matter of public importance. This advice is not binding on the President.

Judicial inquiries 

The judiciary in India has the power to set up inquiry commissions to look into matters of concern that need expert-level intervention. This power is exercised when it is evident that the government or the executive has failed to take due care while acting on a serious matter. For example, to investigate the matter of an encounter of arrested individuals by the police in Hyderabad, the Supreme Court constituted an enquiry commission. The commission submitted its report to the Supreme Court and it was made public in May 2022.

Selection of judges

The selection, elevation or transfer of judges in India is done by the Collegium system. The Collegium system has evolved through judgments of the Supreme Court like the ‘Four Judges’ Case’. It is headed by the Chief Justice of India (CJI) and it consists of four other senior judges of the High Courts. Similarly, a collegium of High Court judges follows the same combination. The recommendations of the Supreme Court Collegium are sent to the government for an appointment, and the High Court Collegium’s recommendations are sent to the CJI and the SC Collegium for approval, which is then forwarded to the government for the appointment.

This system evolved through three cases that arose within a span of 34 years. These later came to be known as the “Four Judges’ Cases”. The first of these cases was decided in the year 1981. In this case, it was decided that the Chief Justice of India’s (CJI) recommendation on the appointment and transfer of judges could be refused by the Executive. This meant that the executive had greater power in deciding the transfer and appointment of judges. The second case was decided in 1993, in which the Collegium system was introduced by the Supreme Court. It observed that the CJI’s opinion was not formed entirely by his own judgment but rather was the collective opinion of the CJI and two other senior-most judges of the Supreme Court. The third case relating to this issue was decided in the year 1998 when the SC expanded the Collegium to a five-member body from a three-member body. It comprised the CJI and four of the senior-most judges of the SC. The fourth and final case was decided in the year 2015, which involved the striking down of the 99th Constitutional Amendment for being unconstitutional.  

Criticism of the judicial system

Even though it is one of the most essential organs of the government and its role in protecting the rights of citizens, the judiciary is not immune from criticism. Many personalities have criticised it for various reasons that we shall discuss. 

Lack of transparency in the appointment of judges

The judiciary, being a public institution, should not shy away from being transparent. The right to know is a fundamental right enshrined under Article 19 of the Constitution of India. But the judiciary doesn’t seem to be interested in bringing the institution under the purview of the right to information. Transparency is crucial because the public needs to be sure before placing their trust in an institution that has the responsibility of protecting their rights. 

The proposed creation of The National Judicial Appointments Commission (NJAC) was a step toward this goal. It aimed to replace the highly criticised collegium system of appointing judges. According to this system, senior judges are responsible for the appointment and transfer of judges. It should also be noted that this system has evolved through judicial pronouncements, which means the judges themselves regulate the judiciary. Such a system is prone to nepotism and favouritism, and the public has no say in it. The objective of NJAC was to bring reform to the appointment of judges. It included government officials in the appointment committee along with senior judges. But the Supreme Court in 2016 declared NJAC unconstitutional as it would affect the independence of the judiciary. Although the NJAC system was imperfect, it should have been an indication for the judiciary to modify and improve the existing system of appointment. This has not been done even after 4 years of the judgement, showing a lack of intention by the judiciary to usher in more transparency to the Collegium system. 

Internationally, the judiciary of the United States of America has been criticised for its method of appointment of judges to the state Supreme Courts. In the USA, judges are elected by the public, and just like politicians, the judges campaign for the elections. They are permitted to receive donations to help them in their campaigns. Many policymakers and legal observers have raised concerns that judicial decisions may be affected by donations to judges’ election campaigns.

Pendency of cases

“Justice delayed is justice denied.” This line was written by William Ewart Gladstone in 1868. But has this been adopted by the judiciary, which is the sole institution responsible for ensuring justice? As per data from PRS Legislative Research, as of September 2021, over 4.5 crore cases were pending across all the courts in India. The courts have taken notice of this issue for years but have failed to do much in this regard. In the case of Anil Rai v. State of Bihar (2001), the Supreme Court observed that delay in reasoned judgment amounts to a violation of the “right to life” guaranteed under Article 21 of the constitution. This issue is brought up in every farewell speech of Chief Justices throughout the years, and vacancies in courts are often blamed for it. This backlog is increasing day by day. Even though this issue is clearly evident to the judges and the public alike, it is frustrating to see high-profile cases getting priority hearings which leads to further delay in cases involving parties that do not have this luxury. 

Globally, there have been lakhs of cases pending before the courts. In the USA, by the year 2015, more than 330,000 cases were pending. In the United Kingdom, by the year 2021, there were 60,000 cases pending before the Crown Court.

Under trials rotting in prisons

This problem is an offshoot of the above-mentioned issue. Due to the high pendency of cases, a lot of innocent people are being imprisoned for crimes they did not commit. Even worse is the fact that prisons all over the country have a high percentage of undertrials rotting in jail, waiting for their fates to be decided. This problem has also been recognized by the judges. But the problem is, that they serve their time till retirement and then leave the system, making space for another judge, and this process continues. On the other hand, those undertrial prisoners spend the majority part of their lives waiting for justice. As per data published in The Hindu, 70% of prisoners in India were under trial as of 2020. 

Lack of representation in higher courts

The lack of female representation in the judiciary is clearly evident. Just like the pendency of cases being a mandatory point in the farewell speeches of judges, the representation of females in the judiciary is also a point that is raised without fail. But these are just lip service on the part of retiring judges, and nothing has been done substantially to elevate female judges from the lower courts to the High Courts. It is no surprise that the prevalent problem of patriarchy has a lot to do with this. One may argue that there are female judges in the lower courts which means with time they will get elevated to the higher courts, but that is far from the truth. Recently, the Supreme Court Collegium recommended 68 names for elevation, and only 10 were female candidates. There is no reservation for women in higher courts, and this gives the collegium the chance to avoid elevating female judges altogether. In the 72 years since the establishment of the Supreme Court, there has not been a single female Chief Justice of India. 

As per a report by American Progress, there is less racial and gender diversity in America’s courts. It is believed that representation is necessary for fairer decisions and the lack of it leads to decision-making being affected negatively. As per an article published in The Guardian, the courts of the UK do not adequately represent the ethnic, gender, and social composition. Just like India, the UK did not have a female as their Chief Justice equivalent for a long time, and only recently, Brenda Hale, Lady Hale of Richmond, became the first female president of the UK Supreme Court.

Corruption

Even the judiciary may not be immune from corruption. Countless accusations against influential people getting the desired day in court or bribery have been made over the years. Former Chief Justice of India, S. P. Bharucha, has said that 20% of the higher judiciary might be corrupt. Even if the accusations are true, it is very difficult to get a High Court judge impeached because, according to the Judges Inquiry Act, 1968, the support of at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha is required. To maintain the sanctity of the institution, one cannot register a case against a judge without the assent of the Chief Justice of India. Examples of judicial corruption include the cases of Justice V Ramaswami, who was found guilty of abusing his financial and administrative powers and for criminal misappropriation of property, and Justice Soumitra Sen, who was found guilty of misappropriating large sums of money and misrepresenting facts related to this act before the High Court of Calcutta.

As per a report by Reuters, thousands of judges who had once broken oaths remained in power. 9 out of 10 such judges kept their jobs. There have been cases of judges forcing defendants to languish in jail without lawyers and no state agencies overseeing their conduct have rebuked these actions. Judges of the UK courts too have been accused of corrupt practices. Many courts in various African nations have also been accused of corruption. It goes to show that these practices are widespread and that both underdeveloped and developed nations face such hurdles.

Shield of contempt of court

The judiciary has been made to look like a perfect institution with perfect human beings. Anything that affects public trust in the judiciary is quickly asked to be taken off the media. In various cases, it has been seen that the Supreme Court has issued notices against individuals who have criticised its decisions on social media, and they’ve been asked to issue a public apology. According to the Contempt of Courts Act, 1971, fair criticism is permitted, and the truth can be used as a defence only if it is in the public interest. But what constitutes the public interest is determined by the judge, thereby giving them complete discretion. Thus, a judge may protect himself against criticism by using this power.

Judicial overreach

As the term suggests, it involves an overreach of authority or jurisdiction by the judiciary. It is also called ‘judicial adventurism’ by some. Overreach usually happens when, under the garb of judicial activism, the judiciary starts interfering with the authority or powers of the legislature or the executive. Thus, it violates the principle of separation of powers. There have been several instances of judicial overreach in the past. One of the highlighted issues was when the Supreme Court banned firecrackers during Diwali in November 2020. It was criticised by a lot of people, and the Vice President of India termed this action of the Supreme Court as judicial overreach. Another instance was the proactive censorship of the movie Jolly LLB 2. In this matter, the Bombay High Court had directed the removal of four scenes after a recommendation from a committee that was set up for this purpose. This action was in violation of the Cinematograph Act, 1952 and Article 19(2) of the Indian Constitution.

Conclusion

In a democratic society, the existence of an active judiciary is essential. The functions it performs are crucial for the working of a democratic society. Along with the legislature, it formulates rules by setting precedents that affect future cases. But the decisions taken by the judiciary can be overturned by the legislature if it is determined to go against them. Apart from these, the non-essential or miscellaneous functions performed by the judicial system, like granting licences, patents, copyrights, dealing with marriages and divorces, etc., are all done to assist citizens in various aspects of life. India is blessed with a strong and active judiciary that has maintained a balance between the sectors of government to ensure that India remains the world’s largest democracy. Therefore, the judiciary, as an organ of the government, plays an active and important role in the administration of the country.

Frequently Asked Questions (FAQs)

Is the power of the judiciary unlimited?

No, the power of the judiciary is not unlimited. It cannot take away the powers of the other two organs namely, the legislator and the executive. It can only stop them from breaching the rights of the citizens but other than that, without any good reason, it cannot interfere with the functioning of the other two organs.

Why is it important to have an independent judiciary?

The functions of the judiciary are such that in order to be performed effectively, it would require a significant amount of independence. This is the reason why the judiciary is always a separate organ that is independent enough to regulate everything that comes under it. Had the judiciary not been independent, it wouldn’t have taken time for the legislature to oust it and overtake its place in the country. Thanks to the independent judiciary, we have a functioning democracy and our rights are protected.

What would happen if there was no judicial system?

If there was no judicial system, the power would be concentrated in the hands of the legislature. In this case, people would be bound by the enactments of the legislature, and have nowhere to go with their concerns seeking redressal. The fundamental rights would be just words on paper and nothing more. Therefore, the existence of the judiciary is important in a democratic society.

References


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