To say that these are cases that India forgot might be a stretch since cases like Minerva mills v Union of India, Rameshwar Prasad v Union of India are pretty well known and keep popping up in references every other day. Even the Bajaj v KPS Gill case was widely discussed by the media.

Overview of The Book

Each case takes a few pages at most and is more like a summary than a detailed description of what happened. If you’re looking for a more in-depth analysis, then this book isn’t it. But it’s a good collection of cases.

One of the things I want to talk about is the sharp contrast in the outcomes of two court cases. In the case of Tukaram v State of Maharastra (Mathura case), two policemen raped a tribal girl in the police station and the supreme court acquitted both of them and made disgusting statements that conflated absence of injury with consent. Ignoring that a person under police custody cannot even be considered to have consented, the court also ignored every principle of common sense or justice in this case.

Contrast this with the Bajaj v KPS gill case where Bajaj a senior government officer was slapped on her arse by KPS gill. She won the case all the way to the supreme court, despite the supreme court letting KPS Gill off with a small fine and overturning his 3-month imprisonment sentence given by the lower court.

It is rare for those who aren’t privileged or well off to get justice in India because the system is stacked against them. Another interesting fact is the coverage of the ‘liberal English media’ (The Hindu, Indian Express, Deccan Herald) on the Bajaj v Gill case. one would have thought they would have taken the side of Bajaj, but they were full of sympathy for KPS Gill and his ‘misfortune’ and were interested in praising his role in clearing the militancy in Punjab and felt it was the injustice that he was being punished by the courts for a different crime. Even Tavleen Singh defended Gill and tried to portray this as an over-reaction by Bajaj.

After the horrible judgement by the supreme court in the Mathura case, there were huge protests by women and massive outcry by civil society. Then the Supreme court in a face-saving measure decided to issue future guidelines by not requiring corroborating evidence (other than the statement of the victim) for such cases by making an even more Retarded justification behind those guidelines.

>>>The court reasoned its decision on the basis that Indian women were different from women in the ‘Western World’, and were unlikely to concoct an allegation of sexual assault. Women in the West could be driven by economic motives, ‘psychological neurosis’, vengeance or jealousy to fabricate allegations. An Indian woman, conscious of the ‘danger of being ostracised’, the ‘reflect[tion] on her chastity’ and other factors, was unlikely to do so.

The book also mentions cases like Naga People’s movement of Human rights v Union of India which talks about how the supreme court did not do anything to declare AFSPA unconstitutional or even dilute some of its guidelines in light of egregious human rights violations being committed. The Court also did nothing to fight for the rights of citizens against the draconian TADA act which was being misused by the police to file cases against anyone they wanted to target. In many cases, if they were angry that someone got bail, they would slap a TADA case.

We are seeing a parallel of that currently with the BJP government using NSA act to throw people like Dr Kafeel Khan or Sharjeel into prison.

One point I’d like to make is that in the case of the TADA, it was not the Supreme court that helped protect the citizen but the PV Narasimha Rao government which set up an NHRC commission. They did not do this because they cared about the citizens but because they were worried about an international backlash on the rampant custodial deaths/torture/human rights violations in India.

So sometimes it is a good thing for people around the world to raise their voice on issues anywhere and hope that those governments at least pretend to care about their image and do something. Instead of crying about outsiders interfering, maybe it is a good idea to focus on what they are saying and whether there is merit to it than focusing on who is speaking out. International pressure has been instrumental in helping the cause of human rights across the world.

About the Author: The Cases that India Forgot  

Dr. Chintan Chandrachud is an associate in Quinn Emanuel’s London office which he joined the firm in 2016.  His practice deals with matters on complex commercial litigation, tax litigation and international arbitration.

He possesses a PhD from the University of Cambridge on the subject of judicial review in India and the United Kingdom. His academic qualifications include postgraduate degrees from Oxford and Yale. He is also the author of Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom.

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This book talks about the history of the Public Interest Litigation and how it evolved to the current form. No other country has anything similar to the PIL and clueless western commentators who praise the PIL are often referenced by Indian judges as an endorsement and take great pride in that.

Public Interest Litigation — A Dangerous Farce

Courts today are involved in everything from whether car windows should be tinted or how wide the roads should be, by using the PIL as an excuse to play God and take over the domain of the legislature and the executive. PILs have contrary to public perceptions been extremely anti-poor. The courts have used PILs as a way to demolish slums at a rate that even Indira Gandhi during the emergency wasn’t able to. Tribals were displaced. Industries were shut and even the government wasn’t able to do anything about it. They had to obey the court.

The courts don’t even need a petitioner anymore. They just take Suo Motu cognizance of random things and start ordering the government. There is no role for the petitioner in public interest litigation. The court appoints an amicus (who tends to be a prominent lawyer chosen by the court, usually people like Harish salve etc). And once appointed it becomes more like a private discussion between the amicus and the court. There are no standards of evidence. Courts literally operate on hearsay and treat those as facts.

Most of the time the petitioners get stiffed, parties who are affected by the judgement are not given a chance to be heard or made a party to the proceedings. This is the definition of injustice and runs contrary to all accepted principles of law and jurisprudence.

About the Author

Prof. (Dr.) Bhuwania did his B.A., LL.B. (Hons) at the National Law School of India University, Bengaluru and an LL.M. from the School of Oriental and African Studies, London, before completing his Ph.D. at Columbia University, New York. He has previously held teaching positions at South Asian University and Ambedkar University Delhi. 

He has also held various visiting positions, including at the Centre for Modern Indian Studies (CeMIS) in the University of Göttingen, Centre for the Study of Law and Governance (CSLG) in Jawaharlal Nehru University as well as at the Centre for the Study of Developing Societies (CSDS) in New Delhi. 

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It is only recently in India that litigation financing has received its due attention considering its innumerous benefits for the three parties involved- clients, lawyers, and financers. Globally, the concept of litigation financing is quite popular, but India is still an infant in this form of financial tool. Considering the potential market in India, many international funders and legal firms have developed an institution that will self-regulate this third-party funding concept, known as the Indian Association for Litigation Finance. This will ensure a smooth and ethical mode of conducting this new method of financing with a more structured institutionalization. (Benwal, 2020)

Parties Involved in Litigation Financing

The parties involved in the process of third-party funding can be precisely categorized into the following:

1. Plaintiffs or Clients: These are individuals or companies that need fund assistance for their case. They use external funders to monetize their legal expenses that are incurred in the duration of their claims. This helps them to have a more flexible way as money is no longer their constraint,
2. Investors: The investors are the third-party funders that invest in these legal claims in return for the future proceeds that the client may earn on winning the case. They can also invest in the litigation process of a defendant, in which they would receive the proceeds that their client might be able to defend.
3. Lawyers or Law firms: They are basically the facilitators of the different stakeholders involved in the litigation process. They keep an account of the funds and claims during the conduct of the litigation process. This helps them attain recoveries and achieve their outcome in a more sustainable manner.

Growing Relevance of Litigation Financing Globally

Litigation financing has developed and received maximum attention in the last few years worldwide. Although its existence dates to the 1980s, it is only in the last decade that people have actually started understanding the concept and its importance in the legal spectrum.

It has brought in the realization that when looked from the investment point of view, it is an investment that remains unaffected from the other business cycles. Globally, the emergence of litigation financing has only caught the pace in the 1990s and 2000s. this involves Australia, UK, USA predominantly. In Australia, this concept developed in the 1990s after the legalization of class action lawsuits in 1992. This rose the need for a more structured and legal system of investments for group claims since this required a large chunk of money during the legal procedures.

In the UK, this concept developed around the same time as Australia, although it only got popular after the Access to Justice Act 1999 which provided other methods of funding than the already existing traditional methods. With the legalization of the third-party funding, the UK market saw a significant rise in such investment companies, opening door to a new kind of investment and a new addition to the economy.

The USA although had the concept of litigation financing prior to these countries, it was only however limited to the personal injury cases. However, after 2006, the concept has now been broadened and many companies are now using litigation financing to claim their dues. The state is trying to promote this method and it has been significantly growing thereafter.
In India, there is however no legal restrictions on this mode of legal financing through the third party but the concept still hasn’t picked up the pace as it should according to its potential. Even though it looks simple, the third-party funding has some complications and that is why it will also require proper structure and regulation for it to flourish in the Indian markets. (Whillans, 2017)

Role of Regulations in View of the Complexities

There are a number of complexities involved when we talk about third-party funding. Since it is still a new concept, it is very important to have proper knowledge, structure, rules and regulations for the smooth conduct of this procedure. There are possibilities if fraudulent practices when it comes to third party funding. There are also issues related to the lack of transparency by the funded party or conflict of interest among the stakeholders.

When we talk about third party funding in the Indian context, the main issue is that investors obviously look for quick return policies, but the Indian legal system is designed in such a way that any case takes a lot of years to get solved finally. This is one of the reasons why investors are not extremely comfortable investing their large chunks of money and waiting for such a long period of time. The next issue faced is that the lawyers are not motivated enough to take up the cases very actively since they do not feel the ownership since the money is invested by a third party. Such issues call for regulations for the smooth conduct of this growing system.

As of now, there is no legal organization that facilitates or regulated the third party funding in India. However, with the coming of this new year, a self-regulatory body is being launched on the 7^th January that will be responsible for the conduct of this system. India has previously faced a number of legal scams and in the view of this, the regulatory body is hoped to bring a positive impact and build customer trust and verified services. The self-regulatory body is named Indian Association for Litigation Finance and is looked forward to bring in a more inclusive and transparent system. (Benwal, 2020)

Litigation Financing and Covid-19 – A Way Forward

2020 has been an unpredictable year for most businesses across the world. In India too we have seen the disruptions that this pandemic has brought with itself. The aftereffects of the months-long lockdown are still being felt across the nation and even globally. But such times call for innovations and economies are finding ways to hit back. Covid-19 has accelerated the demand for immediate working capital and this helps to boost the investment sector. This has, in turn, opened doors for the concept of third-party funding. On the other hand, the pandemic will also lead to a number of concerns as the primary motive of the funder is to at least cover their investment amount but with this pandemic and the current situation of the economy, it a major cause of concern as the quantum assessment has only gotten tougher.

To overcome the concerns, India would require a properly regulated system to move forward. However, the bottom line is that the pandemic has definitely opened wider doors for third party funding to flourish in the Indian markets given that we develop a proper system and develop a long term structural change that helps all the stakeholders involved in third party funding.

Conclusion

Funders are currently very sceptical to invest in any litigation financing. Surveys suggest that only 1 in 10 applications are accepted by the funders as the uncertainties of returns is very high. This is currently the most important reason why the Indian market is not running on its full potential when we talk about litigation financing. (Indge,2020)

If litigation financing is promoted positively, it can help all the stakeholders in a significant manner. The comparatively poor clients can have a chance of getting their claims and on the other hand, funders can be encouraged to invest with proper legal structure. For any new system to work smoothly, the government has to come up with regulations and at the beginning of this year, we have one such organization that can help this new concept grow widely in India. It is a very innovative method of financing and can change the way our legal system is currently working.

A very important regulatory body – Indian Association for Litigation Finance is being launched and it is hoped that this can bring a significant development in litigation financing.

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Status Of Pending Cases In The Country

As a child we often heard our family members, close relatives and neighbours complain of how tedious it is to seek justice in the Indian judicial system. As a citizen of a democratic country it is not only our right but a sacrosanct duty on behalf of the judicial system to ensure to the citizens’ justice at all costs, however sometimes cases take years and often decades to come to its conclusion and this is when the layman begins to lose hope in the judiciary. The problem especially increases for those who have abysmal knowledge of how the justice system work, lack of justice sensitisation and the available avenues like free legal aid as enshrined in our constitution under article 39A of Directive principles of state policy directs the executive to make available all provinces necessary to achieve the reality. Despite the available avenues and government intervention as of  September 2019, there is over 3.5 crore pending cases across Supreme Court, High court and the subordinate courts. Out of the 3.5 crore cases, approximately 87% account for subordinate court cases, followed by 12.5% pendency before the 24 High courts and the remaining in Supreme Court. These figures are staggering, and shocking to say the least. 

Why is the Indian Justice System Slow?

Among many reasons that slow the road to justice is Low judge strength and appointment. The approved number of judges in the High court in India stands at 1076 out of which 680 is the working strength. The vacancy is around 399 according to the data given above. The Allahabad high court has the maximum number of judges at 160 out of which 53 posts are vacant. In the present scenario, India has around 19 judges for every 10 Lakh people. One of the reasons mentioned by law minister Dr Ravi Shankar Prasad for a high vacancy is the inordinate delay in filling up the vacancies of judicial offices. If the present government wishes to solve the problem of pendency of cases it needs to ensure speedy recruitment of justices in High court and lower courts. 

An Extremely Slow Process of Law

The staggering number of 3.3 crore pending cases is a blot on the Indian judicial system. A particular case has multiple hearings and several adjournments, in the process, the culprit often roams free with no fear of the law. This creates a lack of faith in the laymen and women. However, in this regard, the Supreme Court should ensure that a time limit is given to high courts and subordinate courts in which they have to get done with the case. It is the need of the hour that the honourable Supreme court presents guidelines to dispose of cases at the earliest without compromising on justice.

Lack of Infrastructure 

In today’s day and age, it is imperative to ensure the needed infrastructure to provide speedy assistance to those who need help. There are several systemic issues like the inadequate staff and IT infrastructure, undue delay in getting reports from the understaffed forensic science laboratories, lack of victim support services and lack of victim/witness protection measures, frivolous adjournments are some of the common issues that have plagued the Indian justice system. What needs to be done is speedy infrastructural changes like the use of computers to admit the cases, computerisation to update the status of the cases the courts, filing of cases through the online platform, among others is the way to go. Now we will look at ways to resolve the problem ahead of the judiciary and citizens at large.

Speedy Recruitment 

The need of the hour is for the judiciary to fill its vacancies. For this, supreme courts must provide guidelines to the lower courts to fill the vacancies in a stipulated and time-bound manner. For example, young lawyers from hundreds of law colleges and universities must write a common judicial test after which they will be recruited in state district courts and alternate dispute resolution mechanisms like tribunals, after they’re recruited they can continue their practice so it doesn’t take too many years of hardship where they find hard to get themselves a steady job. 

Seminars and Workshops 

The world is constantly changing, and so is the justice system across the world. There are two ways to learn, one, by personal experience, as and when am advocate is confronted with the case and second, by learning from examples. There is no harm in learning by practice, however, the senior judges in lower and high courts must train those who have joined Indian judiciary through seminars and workshops. They must discuss the issues faces by young advocates and students who aspire to enter Indian judiciary and make a difference with their passion for justice. This will not only encourage young aspirants to join judiciary but also train young minds to face challenges as and when they appear in their professional careers. 

Need for Alternate Dispute Resolution Mechanism

Before we try and understand how ADR will help in speedy disposal of cases, let us understand what does alternate dispute resolution means, ADR refers to methods of mediation or arbitration to resolve disputes without the use of litigation. In the process, both the parties decide to employ the method of mediation to resolve the issue along with a third party who listens to the argument and presents a way to resolve the dispute without knocking the doors of courts. As we know that about 50% cases in India are civil, mostly compoundable, it is a wonderful way to provide justice in a time-bound manner without filing a case in courts and simply increasing the number of cases. 

What’s the Way Forward?

Indian constitution is the largest in the world, it has the most articles and deals with the most significant aspects of social, economic and political justice. It not only acts as a bible to those who take the task to provide justice to the citizen of this country but also enables the growth of a fertile mind. It aids liberty of the mind and soul, assists the sustenance of life-breath of the country’s growth and fulfils the aspirations of those who seek to take part in nation-building. Tall words, isn’t it? But the power of the judiciary is not to be taken lightly, it has the potential to uplift the flag of justice whenever a young woman like Kamala loses her life to gender-based violence, it uplifts the values on those minds that built this nation brick by brick. Hence, the way forward will be to educate the young about the true value of justice and what it means to be free, the civil society needs to be aware of its right to alternate dispute resolution, the poor must be provided with free legal aid to provide them with an equal ground to seek justice and the judiciary needs to buckle its shoes to make sure they surrender to those they promised to provide justice. 

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“Medicine is a science of experience; its object is to eradicate diseases by means of remedies. The knowledge of the disease, the knowledge of remedies and the knowledge of their employment, constitute medicine”

– Samuel Hahnemann

THE INDIAN PHARMACEUTICAL INDUSTRY

The Indian pharmaceutical industry is an effective, high-innovation based industry that has seen reliable development in the course of recent decades. The current industry players involve a few exclusive Indian organizations that have caught a generous offer in the domestic pharmaceutical market because of variables, for example, great government arrangements and restricted rivalry from overseas. However, the advancement of the Indian economy is upsetting Indian ventures as they rise out of household markets and apparatus up for international competition. 

PATENT LAW IN INDIA 

In India Patent right were introduced in 1856, and the Patent Act 1970 (The Patent Act) repealed all the previous enactments. India is additionally a signatory to the Paris Convention for the assurance of mechanical property, 1883, and the Patent Cooperation Treaty, 1970. The Patents Act provides that any invention that satisfies the criteria of newness, non-obviousness and usefulness can be the subject matter of a patent. A portion of the non-patentable developments under the Patents Act incorporate methods of agriculture or horticulture, processes for the medicinal, surgical, curative, prophylactic or other treatment of human beings, animals or plants or substances obtained by a mere admixture, resulting only in the aggregation of the properties of the components, etc. Concerning pharmaceuticals, on account of substances planned for utilizing or equipped for being utilized as food, medications or drugs or substances created by synthetic procedures, licenses are allowed distinctly for the procedures of assembling of such substances and not for the substances themselves. Henceforth, pharmaceutical items are right now not allowed patent insurance under Indian law. India had a product patent regime for all innovations under the Patents and Designs Act 1911. In the year 1970, the government came up with a new Patents Act, which excluded pharmaceuticals and agrochemical products. This exclusion was introduced to lower the dependency of India on imports for drugs and create a self-reliant indigenous pharmaceutical industry.

The absence of product patents in pharmaceuticals and agrochemicals significantly affected the Indian pharmaceutical industry and brought about the advancement of extensive ability in figuring out of medications that are patentable as items all through the industrialized world, yet unprotectable in India. As a result, the Indian pharmaceutical industry developed quickly by creating less expensive forms of various medications patented for the local market and in the long run moved forcefully into the global market with generic drugs once the worldwide patents terminated. Furthermore, the Patents Act provides several safeguards to prevent abuse of patent rights and provide better access to drugs. The term of licenses on account of procedures or techniques for the production of a substance proposed to be utilized or fit for being utilized as food or as a medicine or drug is for a time of seven years from the date of documenting or five years from the date of fixing the patent, whichever is less. A patent relating with other inventions are allowed for a time of 14 years from the date of documenting the patent, except if demonstrated to be invalid. 

To secure their financial interests, various organisations concocted a strategy popularly known as “ever-greening.” The Companies roll out some minor changes in the current item with the same molecular formula but with an alternative structure, including some new fixing in the medication without changing the impact of the medication, and so forth. 

NOVARTIS AG v. UNION OF INDIA 

The judgment given by the two-judge bench of the Hon’ble Supreme Court of India in the case of Novartis AG v. Association of India is one of the milestone judgements in India. Novartis challenged the dismissal of its patent application by IPAB for Beta Crystalline form of “Imatinib mesylate” wherein it was dismissed by the Supreme Court of India on the ground that the said medicate didn’t deliver an improved or better remedial adequacy as looked at than the known substance i.e., “Imatinib mesylate” implies that the said medicine didn’t include a creative advance. One of the significant explanations behind dismissing the patent utilization of Novartis was to keep away from ever-greening of previously protected items by presenting minor changes.

FACTS

The largest international pharmaceutical companies, Novartis International AG filed the application according to the TRIPS agreement before the Chennai Indian patent office for awarding them the patent for an anticancer drug ‘Glivec’, used for treating Chronic Myeloid Leukaemia (CML) and Gastrointestinal Stromal Tumours (GIST) developed from Beta crystalline type of “Imatinib mesylate.” This medication is broadly utilized in the treatment of cancer and is licensed in more than 35 nations. When Novartis filed for the grant of the patent, it was limited to methods or processes and not for products, as defined under section 5 of the Patent Act, 1970. After the Patent (Amendment) Act, 2005 section 5 was cancelled and licenses became conceded for strategies or procedures yet additionally for items.  The application of Novartis International was rejected on the grounds that it did not qualify the requirements in section 3(d) of Patent Act 1970. 

After that Novartis filed two writ petitions in Madras High Court in the year 2006 under Article-226 of Constitution of India. The appeals, therefore, expressed that the section 3(d) of Patent Act, 1970 is unlawful because it isn’t in consistence with TRIPS agreement and furthermore violates Article-14 of Constitution of India and the other against the order passed by Madras Patent Office. Madras High Court moved the case to IPAB (Intellectual Property Appellant Tribunal) in 2007. Their appeal was heard and rejected by IPAB expressing that the innovation fulfilled the tests of novelty and non-obviousness however patentability of the product was hit by section-3(d) of the Patent Act, 1970. The judgment given by IPAB is to forestall ever-greening of already patented items by acquainting minor changes and to give simple access to the residents of India to life sparing medications.

Afterwards, Novartis filed an SLP (Special Leave Petition) before the Apex Court against the order passed by the IPAB under Article-136 of Constitution of India. 

ISSUE

1. According to the provision of section-3(d) of Patent Act, 1970 what is a known substance?
2. According to section-3(d) of Patent Act, 1970, what is the meaning of Efficacy?
3. According to section-3(d) of Patent Act, 1970 whether an increase in bioavailability qualifies as an increase in therapeutic efficacy?
4. Whether the invention “Beta crystalline form of imatinib mesylate” claimed by Novartis is more efficacious than the substance that it was derived from i.e. “Imatinib mesylate?”

JUDGEMENT 

 In April 2013, the two-judge bench of Supreme Court of India dismissed the application and maintained that the beta crystalline form of Imatinib Mesylate is another type of the known substance i.e., Imatinib Mesylate, wherein the efficacy was well known. The Apex Court made it clear that on account of medication “Efficacy” in section 3(d) just signifies “Therapeutic Efficacy” and states that all properties of the medication are not important, the properties which straightforwardly identify with viability in the event of medication is its restorative viability. The Supreme Court in the third issue decided that about 30% expansion in bioavailability qualifies as an increment in therapeutic efficacy under section 3(d) of Patent Act, 1970 if a proof is provided for the same. Supreme Court compared the efficacy of “Beta Crystalline form of Imatinib Mesylate” with “Imatinib Mesylate” concerning its flow properties, better thermodynamic stability and lower hygroscopicity, and found that none of these properties adds to increment in helpful adequacy as indicated by section 3(d) of Patent Act, 1970 and Novartis did not give any archive that shows that the adequacy of “Beta Crystalline type of Imatinib Mesylate” is more when compared with the efficacy  of “Imatinib Mesylate.” 

PHARMACEUTICAL PATENTS AND THE TRIPS AGREEMENT

The principle rule identifying with patentability is that patents will be accessible for any development, regardless of whether a product or process, in all fields of innovation without discrimination, where those creations fulfil the guidelines for patentability — to be specific, novelty, inventive step and industrial applicability. Likewise, Members are required to make the award of a patent dependent on adequate disclosure of the invention and may require information on the best mode for carrying it out. Revelation is a key piece of the implicit understanding that the award of a patent comprises since it makes openly accessible significant specialized data which might be useful to others in propelling innovation in the territory, even during the patent term, and guarantees that, after the expiry of the patent term, the creation falls into the public domain because others have the necessary information to carry it out. 

Three types of exclusion to the above rule on patentable subject-matter are allowed. These may be of interest from a public health perspective:

1. Inventions the prevention of whose commercial exploitation is necessary to protect ordre public or morality, including to protect animal or plant life or health;
2. Diagnostic, therapeutic and surgical methods for the treatment of humans or animals; and
3. Certain plant and animal inventions.

What are the rights conferred by a patent under the TRIPS Agreement? 

The least rights that must be given by a patent under the TRIPS Agreement follow intently those that should have been found in many Patent laws, to be specific the privilege of the patent proprietor to keep unauthorized people from utilizing the patented procedure and making, utilizing, offering it to be purchased, or bringing in the protected item or an item got legitimately by the licensing procedure.

Term of Protection 

Under the TRIPS Agreement, the accessible term of security must lapse no sooner than 20 years from the date of recording the patent application. It ought to be noticed that, although the issue of patent term expansion to make up for administrative deferrals in the advertising of new pharmaceutical items was brought up in the Uruguay Round arrangements, the TRIPS Agreement doesn’t contain a commitment to present such a framework.

CONCLUSION

Making another medication and presenting it in the market is over the top expensive activity. The organization who are making new medications consistently hope to ensure their business and financial interests by protecting the product. For better development of the business, it is significant that the speculators have a sense of safety in putting their finances into that sector. The Patent Act gives security to pharmaceutical organizations. Be that as it may, it is likewise important to guarantee that there are a few defend additionally with the goal that a couple of organizations don’t assume control over the market for the sake of protected property rights. The safeguards are vital for the government assistance of the general public.

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Kulbhushan Jadhav is a retired navy officer of India. He was arrested by Pakistan on 3^rd March 2016 on the suspicion that he was a spy sent by India. India received the news on 25^th March which was after a delay of 22 days. India asserted that Jadhav who was carrying on a business in Iran after retirement was abducted and falsely charged on the grounds of ‘terrorism and espionage’. In April 2017, The military court of Pakistan awarded the death sentence to Jadhav. After this judgement by the Pakistan court, India approached ICJ asking for consular access to Jadhav and challenging the sentence by the Pakistan court. 

Senior Advocate Harish Salve was the lead counsel in the case from India at the Heage based ICJ. In July last year when the ICJ pronounced its judgement, it asked Pakistan to ‘review and reconsider’ its decision on death sentence and allow India access to Kulbhushan without any delay. However, in an online meeting this year Harish salve from London said that India needs to decide as to whether it wants to go back to ICJ for consequential remedies as Pakistan has failed to comply with the judgement. To this Pakistan Spokesperson, Aisha Farooqi replied that Pakistan has complied with the judgement and is firm on continuing to do so as the case proceeds further, she also stated that they have granted consular access and are reviewing the death sentence. 

WHAT IS THE KULBHUSHAN CASE?

Kulbhushan Jadhav is an Indian retired navy officer who is on death row in Pakistan. His father is a retired Mumbai police officer, his family resides in Mumbai and includes his two children and wife. He is charged on grounds of sabotage and espionage activities against Pakistan at the command of Indian Intelligence agency. India refuses to accept the allegations. 

Pakistan claims that Jadhav was arrested by Pakistan officials in Balochistan on 3^rd March 2016, where he entered using a fake passport which showed his name as Hussain Mubarak Patel. While India maintains that he was abducted from Iran, where he was carrying on business after he was retired from the Indian navy. India got the news about his detention on 25^th March, which was after 22 days from detention. After a month of his arrest, a video was released by Pakistan in which Jadhav was shown confessing that he’s a spy from India and had been carrying out activities in Balochistan and Karachi, still working with the Indian navy. The video was condemned by India. 

When Pakistan denied consular access to Jadhav under article 36 of the Vienna Convention and its military court sentenced him to death, India approached ICJ against Pakistan’s judgement and requested the release of Jadhav. On 17^th July 2019, the ICJ allowed consular access to Jadhav but denied his release. It ordered Pakistan to reconsider the death sentence. Consular access was allowed by Pakistan and Indian officer met Jadhav in Pakistan on 2^nd September 2019.

SALIENT FEATURES OF THE JUDGEMENT

ICJ pronounced the judgement in India’s favour with a ratio of 15:1. Some of the salient features of the Judgement are:

Admissibility– The court denied Pakistan’s objection on the admissibility of the matter, based on Article I of the Vienna convention whereby compulsory settlement of disputes to the Vienna Convention on consular access of 24^th April 1963 is provided. The court in a ratio of 15:1 said that the claim of non-admissibility by the Islamic Republic of Pakistan is not valid and India can access the court. 

Breach of obligation by Pakistan– The court said that Pakistan has breached its obligation incumbent upon it by Article 36 paragraph 1(b). It did not inform Kulbhushan about his right under article 36 and thereby deprived India of its right to consular access to the Individual Concerned. 

Deprived India of its Right– By not allowing India to have communication with Jadhav and denying access, Pakistan deprived India of its right to meet Jadhav and arrange Legal Representative for him and thereby breached Article 36, paragraph 1 (a) and (c) of Vienna Convention on Consular Access. 

Pakistan under Obligation to inform Jadhav without any delay about his right under Article 36 of the Vienna Convention. 

Review and Reconsideration– The court observes that Pakistan needs to review its decision, through its choosing, to ensure that weight is given to the violation under article 36 while taking into consideration article 139, 145 and 146 of the Vienna convention. 

Essential stay– The court said that the stay on execution is essential for the effective review and reconsideration by Pakistan. 

DEVELOPMENTS AFTER JUDGEMENT

Indian counsel in the Kulbhushan case on 3^rd may 2020 said that they are hoping to persuade Pakistan to release Jadhav from the backchannel on humanitarian grounds or whatever they want to call it, we want them to let him go. Salve commented that India might consider going back to ICJ due to non-compliance of the order by Pakistan; However, Pakistan on Sunday denied the allegations made by salve and said they are baseless and inaccurate. Pakistan’s spokesperson said that it is ‘regrettable’ that salve made statements which misrepresent facts adding that Pakistan has complied with all international obligations. 

Pakistan on 14^th may say that it is taking necessary steps to review the case as per the directions of ICJ and has already granted consular access to India.  On 16th of July, Pakistan allowed India consular access to Jadhav, which as per the officials was neither meaningful nor credible. On 7th August, Pakistan court constituted a three-member bench in response to the petition filed by the government to appoint a representative for the death row prisoner. The decision came after the Islamabad high court passed the directions to set up a larger bench to hear the dispute. The next hearing on the case is scheduled on 3rd September. The developments come after an argument between the foreign spokesperson of Pakistan and India, while the former claimed that India has been communicated through diplomatic means to appoint a lawyer for Jadhav the latter denied receiving any such communication. A spokesperson from the ministry of external affairs said that Pakistan is not only violating ICJ’s judgement but its own ordinance too.

CRITICAL ANALYSIS

`India and Pakistan share this long history. Amidst this, when an Indian retired officer was arrested by Pakistan on charges of espionage chaos took place. While Pakistan says that Jadhav is a spy, India maintains its stand that he was abducted by them from Iran where he was carrying business activities post-retirement. When the Pakistan court sentenced Jadhav to the death penalty, India decided to approach ICJ. India argued at ICJ that it had been denied consular access and was notified about the arrest 3 weeks later, it also put forth the request that kulbhushan is released by Pakistan. While ICJ directed Pakistan to review its decision it denied India’s request to order the release of kulbhushan. ICJ acknowledged the fact that Pakistan violated the International norms of consular access and did not inform Jadhav about his rights; Conviction and detention of Jadhav are not violative of Article 36 of Vienna convention as per ICJ. Appeals and Review petitions are not allowed on ICJ verdicts. After the verdict, Pakistan has assured that it will comply with ICJ’s judgement. On 2^nd September Pakistan allowed consular access to India and an Indian diplomat met Jadhav at the Pakistan jail for an hour, the entire proceeding was recorded in the presence of Pakistan officials; India contended that Jadhav seemed to be under immense pressure. India is demanding independent access to Jadhav because the capital punishment was awarded to him in a secret trial therefore, any information from Jadhav can help India. 

The Vienna Convention was signed to regulate diplomatic relations. A consular access treaty was also signed in the year 1963. The treaties were formed under the auspices of the United Nations. Once India is granted Independent access, it can arrange the best legal service for Jadhav allowed under Pakistan laws. Since the Pulwama attack tensions have been there between the two countries. After India struck down Article 370, new tensions have developed. Pakistan by holding a free and fair trial can ease the tensions. If a civil court conducts the trial help can be provided but if the military court continues to govern the case little can be done. If Pakistan denies following ICJ’s verdict, India might severe diplomatic relations and use International pressure, but all these measures must be used cautiously to maintain peace. 

CONCLUSION

The ICJ has given its verdict, Both countries have assured to follow the judgement. While Pakistan granted consular access to India, it was not entirely free from control. From the statements delivered by Harish salve, it seems that India might approach ICJ once again to remind Pakistan about the judgement. In reply to statements given by Advocate Salve, Pakistan’s spokesperson said that the statements are false and misrepresent the facts, and assured that Pakistan is following up with the verdict and will continue to abide by further pronouncements as the case proceeds. India’s co-operation would be required to ensure justice, thus both countries need to mutually co-operate to conclude. 

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Charas, marijuana, bhang are derivatives of cannabis, which are popular in tradition and are used by adolescents. While some people get dependent on it others leave it after early experimentation. The drug has been legal for most of human history and illegal for 1% of the time since the time its been in use. 

ADVANTAGES

• Controls epileptic seizures– THC (tetrahydrocannabinol) by binding to the brain cells which are responsible for regulating relaxation and controlling excitability control seizures. 
• Inflammatory bowel diseases– Studies suggest that the use of marijuana can treat patients with Inflammatory bowel diseases.
• Prevention of Cancer– Scientists have discovered that the use of marijuana can prevent Cancer. 
• Alzheimer’s disease– Marijuana might slow the progression of Alzheimer’s disease.

DISADVANTAGES

• Memory Formation– The use of marijuana block memory formation especially where the brain is still developing, because of which the legal stage to involve in its usage is 21 in the countries which have legalised it. 
• Balance– THC messes with the balance of a person which created problems in walking, talking and driving correctly. 
• Side effects– The common side effects of consuming marijuana include anxiety, panic, fear and distrust.
• Psychosis– The excessive usage of the drug might result in psychosis which comprises delusion, hallucinations and loss of identity

MARIJUANA IN INDIA

In India, Cannabis has been in use since 2000 BC. A study conducted by the Indian Institute of Medical Sciences in the year 2019 shows that cannabis has been consumed by 7.2 billion Indians in the past year. As per the 2016 drug report of UNODC, the retail price of cannabis was the lowest in the world at US$0.10 per gram. The Narcotic Drugs and Psychotropic Substances Act, 1985 is the central law that deals with cannabis in India. Although, states have their laws regarding the sale, consumption or use of marijuana. In general, it is seen as a crime and can land someone in trouble. In India, Uttarakhand was the first state to allow the cultivation of Hemp for commercial purposes. 

Under the 1985 act, anyone found engaged in the practice trade or consumption of Cannabis or bud can be made liable for an imprisonment of up to 20 years. Even the possession of drugs attracts legal charges which depend upon the quantity in the possession and the purpose does not matter. The production of hemp and marijuana is also strictly banned in the country. However, the state governments have been vested with the power to grant cultivation license for some purposes (medical and research). Uttarakhand and Uttar Pradesh, the two northern Indian states have received the license to cultivate hemp. 

The Indian market for cannabis has received attention recently due to various NGOs and activists filing petitions to legalise it. The arguments often point towards the medical benefits which cannot be ignored and the boost that it can bring for the Indian economy with millions of jobs due to ideal climatic conditions required for cultivation. 

India shares a medicinal and mythical history with Marijuana. It’s been in the lives of people for centuries now. In 1986, Under the pressure of the medical lobby of the US, the country gave in and formed strict narcotic laws that prohibited the production, sale, consumption and transportation of drugs illegal. Since then, arguments in favour of legalising this drug and keeping it banned have been made. The ban did not bring much change, except for the fact that a legal source of government income has been shifted to international drug groups. 

COMPARISION WITH THE WORLD

The cannabis was legalised for medical purposes by Germany in the year 2017, which left a remark on other EU members. The recent rise in interest and investment by the Uk and Europe in the medical cannabis market is the result of deregulation of cannabis for medical causes. Denmark, Poland, Portugal and the UK have changed their regulations related to medical cannabis. In November 2019, the NHS in England approved two cannabis-based medicines which were used to treat epilepsy and multiple sclerosis. Uruguay, Canada and other 11 US states legalised the export, import, possession, distribution of cannabis for research and medical purposes. Luxembourg, who legalised the market for medical purposes now intends to loosen their laws further to legalise its production and consumption, it would be the first European country to do so. Only four countries have accepted and allowed the medical and recreational use of cannabis which are Uruguay, Canada, Georgia and South Africa.

India might have taken its first step towards legalising Cannabis. The Delhi high court in 2019, served a notice to the centre challenging the prohibition on the plant snd demanding justification for criminalising it for industrial and medical purposes. Uttarakhand already came out in open when it allowed the cultivation of hemp in 1000 hectares of land in 2018, which can be sold to the government only. The court’s notice is the result of a PIL filed by the great legalization movement India trust (GLM) which is a non-profit organisation working towards raising awareness about the medical, industrial, economical and other benefits of cannabis while making efforts to decriminalise it. The petition challenged certain provisions of Narcotic Drugs and Psychotropic Substances Act, 1985, which banned the use of Cannabis. The medical benefits of the drug were pointed out and alleged that banning it violates Article 21 (Right to life) of the constitution.

Cultivation of the drug is illegal in India. However, the Council of Scientific and Industrial Research received permission from the health ministry to cultivate the crop in j&k in the year 2017 solely for medical purposes. while the industrial, medical and recreation use of the drug is illegal in India. It is receiving acceptance across the globe. 

CONCLUSION

The cannabis market has been misunderstood in India for a larger part of it. The laws are outdated and require re-consideration. The increasing support for the market and the rising number of hemp and cannabis seems encouraging. The economic and medical benefits that India would derive from the market cannot be ignored, considering the circumstances of support received by the drug; it might not be long that the Indian government unlocks the potential to legalise the market. 

Studies show that marijuana is less harmful than other drugs like cocaine, morphine, alcohol etc, and provide relaxation and comfort to the senses, unlike others which lead to aggression in most cases. The country has taken significant steps towards legalising marijuana for medical purposes and it might someday allow the industrial benefits to expand too. Moreover, its legalisation would stop illegal international drug groups to enter and harm the economy as before its criminalisation it used to be a source of income for the state. A check on the use can be maintained as prevention often makes a drug stronger. 

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HISTORY OF THE PADMANABHASWAMY TEMPLE

Ever since the independence, the royal family has governed the Padmanabhaswamy Temple until 1991, when the last ruler of Travancore, Chithira Thirunal Balarama Varma, died. The state government allowed the administration of the temple to be taken over and maintained by his younger brother, Uthradam Thirunal Marthanda Varma. 

THE DEITY

The Padmanabhaswamy Temple deity represents the trinity of Brahma, Vishnu, and Shiva. Legends have it that Vilvamangalatu Swamiyar, an ascetic, travelled all over the world in search of Lord Padmanabha. In Thiruvananthapuram, he had a dream that Lord Vishnu had reduced himself to 18 feet and had taken the reclining position. The idol is made of kadasharakara, a composition of herbs, raisins, and sand. The temple seen today is built of granite but previously was built of wood. The temple 365 pillars, one for every day of the year. The main idol is made of 12,500 saligram stones shipped from the Gandaki River in Nepal. Saligramas are auspicious stones worshipped and revered as the direct manifestation of Lord Vishnu. 

Much attention has been given to the history of the temple, mostly because much of it is lost in antiquity. The Epics and the Puranas also mention the temple. As per the Srimad Bhagavatham Lord Balarama, brother of Lord Krishna, the incarnation of Lord Vishnu washed in Padmatheertham, a pond adjacent to the temple. It is believed by many that the construction of the Padmanabhaswamy Temple started around 5000 years ago in the early days of Kali Yuga. 

THE TRAVANCORE FAMILY

The Travancore dynasty was established by Ayyan Adigal Thriuvadir in 1870 AD. According to Uthradom Thirunal Marthanda Varma, the younger brother of the last Travancore King, their family is the oldest royal families in the country, they also surrendered the crown to the deity on 3^rd January 1750. Through this action, they announced that the deity is the Maharaja and they were the servants of God. In 2011, the Kerala High Court ruling seized the right of the family to exert its shebait rights. Shebait is a person who serves the Hindu deity and who operates the temple. 

THE TREASURE

There are six vaults that are found under the temple. The opening of these vaults to determine the contents that contributed to the decade-long legal battle. The Supreme Court formed a seven-member panel headed by amicus curiae Gopal Subramanium to determine the worth of the treasure, consisting of two chambers which had not been opened for more than 130 years. When vault A was opened by the Committee, the uncovered treasure estimated to be approximately Rs. 1,000,000 crores. It contained bags of gold from the Napoleonic, Roman, Medieval and British eras. They also found several gold pots and chairs that may have been used for religious ceremonies. A gold idol of Lord Vishnu adorned with diamonds and precious stone, and a 28-foot golden throne used as the seat of the deity was also found. Apart from this, a gold ceremonial robe which could have been used on the god, weighing almost 30 kg were also found. The committee also discovered sacks of gold antiquities such as coconut shelled ornaments studded with diamond and rubies, along with some jewels like diamonds, sapphires, emeralds and rubies. 

THE LEGAL BATTLE

The key legal issue was whether Uthradam Thirunal Marthanda Varma, Chithira’s Thirunal Balarama Varma’s younger brother, may claim to be the “Travancore King” or his shebait rights as the “Ruler” after the king’s death in 1991. The Kerala High Court examined this claim of possession, power and management of the ancient Sree Padmanabhaswamy Temple within the restricted sense, according to the Travancore-Cochin Hindu Religious Institution Act, 1950. The High Court in its ruling stated that by relying on the powers specified in the Travancore-Cochin Hindu Religious Institutions Act,1950 (TC), Varma cannot take the position of the ruler and claim the management of the temple. 

When the principal states of Travancore and Cochin signed the Accession Agreement with Government of India in 1949, the TC Act “trusted” the administration of the temple in the hands of the Ruler. When in 1991, the last ruler of Travancore died, the state government allowed Uthradam Thirunal Marthanda Varma to take over the management of the temple. 

Who had the ownership, control and management of the Padmanabhaswamy temple before 1991?

All the sanctuaries which under the influence and management of the Princely States of Travancore and Cochin were under the control of the Travancore and Cochin Devaswom Boards before 1947. The administration of the Padmanabhaswamy Temple was with the Ruler of Travancore according to the Accession Agreement. The province of Kerala was cut out in 1956 however the sanctuary kept on being overseen by the royals. In 1971, through a constitutional amendment, the entitlements and privileges of the royal family were nullified. The move was maintained in the court in 1993 and the last ruler of Travancore passed away, when the case was still pending, kept on dealing with issues of the temple till then. In 1991, when the last ruler’s brother assumed the control over the temple management, it created chaos among the devotees who moved the courts prompting the legal battle. The government participated, supporting the claims that Marthanda Varma had no legal right to claim the management of the temple. 

THE HIGH COURT RULING

The Kerala High Court in its 2011 decision, permitted the Travancore royal family to have a say in the customs and rituals of the temple, yet dismissed Uthradam Thirunal Marthanda Varma’s contention that he should step into the shoes of his brother, the last “King.” The leader of Travancore, the late Chithira Thirunal Balarama Varma who administered Travancore as ruler for a long time (1931 to 1949) and who was the Rajapramukh of Travancore-Cochin for six years and who dealt with the sanctuary until his passing on July 20, 1991, never guaranteed that the sanctuary was the family property of the royals or an individual property of himself. Despite the fact that the last ruler executed a will handing down his properties, he had excluded the sanctuary as his property or dealt with it, the high court uncovers in its judgment. If the temple was the family property of the royal family or the private property of the king, at that point there was no requirement for a particular provision in the Accession Agreement or the TC Act accommodating vesting of the sanctuary in trust in the possession of the last leader of Travancore. The obvious word used to qualify vesting is “in trust”, which implies, that it is to serve someone. The beneficiaries are the devotees, the state and the public and each one of the individuals who have an enthusiasm for the sanctuary. The last ruler, in this way, was a trustee who has held the control of the sanctuary to assist the devotees, the state and general society, the high court clarified in its judgment. Without a definition in the TC Act, the definition contained in the constitution’s Article 366(22) must be received to characterize “ruler,” the high court held. Only the last ruler satisfies the definition, and nobody can obtain that status, which isn’t heritable. Along these lines, none of the heirs of the family could guarantee control or the management of the sanctuary under 18(2) of the TC Act after the demise of the last Ruler, the high court held.

The High Court also gave three months to the Kerala government to comprise a body, corporate or trust, to assume control over the temple, its assets and management, and to run the same as per all the customs followed till date. Considering the assets and the valuables in the six vaults of the sanctuary, the court commanded an inventory of all the articles and displaying them for devotees and tourists on monetary premise. It likewise made a proposal to let the state police assume control over the sanctuary security, or help the current security force employed there. The High Court had reasoned that after the meaning of the word ‘Ruler’ in Article 366 (22) of the Constitution of India was changed by the Constitution Act, 1971 (26^th Amendment) which nullified the privy purses, and hence the younger brother of the last ruler of Travancore could not take control over the management of the temple. However, after the High Court gave its ruling Uthradam Thirunal Marthanda Varma immediately filed an appeal against it in the Supreme Court, which in turn put the High Court order on hold. 

THE SUPREME COURT RULING

The Supreme Court gave its verdict on the nine-year-long management dispute over the Sree Padmanabhaswamy Temple, a two-judge bench comprising of Justice UU Lalit and Justice Indu Malhotra upholding the rights of the erstwhile Travancore royal family. The Supreme Court found the royal family perfectly qualified to hold the “shebait” rights. The word “shebait” comes from “Sewa” which means “service”. In the literal sense, it signifies one who makes sewa to the god or a deity. For a quite a long time, the Padmanabhaswamy Temple was under the control of the Travancore royal family, they were the supervisors or the shebaits of the temple until they signed the Covenant in May 1949.  In its judgment, the Supreme Court has set out that the shebaitship is vested in the founder and except if the originator himself has discarded the shebaitship in a specific way or there is some utilization or custom or conditions indicating an alternate method of devolution, the shebaitship, similar to some other types of heritable property follows the line of legacy from the founder; and it isn’t available to the court to set out another standard of progression or modify the standard of succession. By the Constitution 26th Amendment Act, 1971, the privy purses, benefits and other exceptional privileges of the past leaders of Indian states were annulled by erasing Articles 291 and 362 and by inserting Article 366(22) in the Constitution. The test against it was repulsed by the Supreme Court vide judgment rendered by the constitution seat on February 4, 1993, in Raghunathrao Ganapatrao v Union of India. The Kerala government said that with the cancellation of the idea of Ruler by the Constitution (26th Amendment) Act, 1971, the shebaitship of the royal family stopped to have any impact.

The Supreme Court brought up that it is the settled law that shebaitship has the components of office and property, of obligations and individual interest, mixed and they contribute the workplace of the shebait with the character of an exclusive right. The shebaitship of the sanctuary had likewise gone from Ruler to Ruler’s heir with principles of succession otherwise pertinent to the royal family, the court held. The Covenant let the administrative issues of the sanctuary with the royal family and in the possession of the Ruler of Travancore, essentially because his official limit or status as the past Head of the State had nothing to do with the limit as shebait of the sanctuary, it clarified.

The 26th Amendment Act erased Articles 291 and 362 and embedded Article 363A which explicitly specifies inter alia that any individual who was perceived to be the leader of an Indian state or his successor, will cease to be perceived as such ruler or successor, and all rights, liabilities and commitments in regard of privy purses stand quenched. 

Article 366(22) was likewise in like manner corrected and as far as the altered definition, “Ruler” presently implies inter alia, the individual who was perceived as the leader of an Indian state or as a successor to such Ruler, before the beginning of said Constitutional Amendment.

In spite of the 26th Amendment Act, 1971, the private properties of the ruler would keep on being accessible for succession and devolution as per the law and custom, the Supreme Court held. In any case, the court likewise acknowledged the royal family’s case that’s it not, at this point thought about the sanctuary as its private property and that it just looked for shebaitship. 

The bench clarified that on the day the covenant got successful, the Ruler of the Covenanting State of Travancore was shebait of the Temple, which was not in his official limit as the ruler; and that the articulation “Leader of Travancore” in the agreement and the TC Act was distinctly to recognize the individual, and that official status of the leader of Travancore had no connection with such organization.

The shebaitship of the sanctuary being detached with the official status of the individual who marked the contract must regress by the material laws of progression and custom, the court dominated. After the demise of the individual who was in charge and management of the organization, the heritable intrigue must devolve as per the standard rights, the bench dominated. 

Except if and until the line of succession of the shebaitship and responsible for the organization is terminated, there can be no doubt of escheat as saw by the Kerala high court, the bench included. The principle of escheat hypothesizes that where an individual dies intestate and doesn’t leave a beneficiary who can prevail to the property, the property rests with the government. And thus, the Shebait rights, as per customary law, are with the royal family even after the demise of the last ruler. The Supreme Court ruled that for the shebait rights the definition of the Ruler given in Act would be adhered to and would transfer to the successor. 

The SC acknowledged the accommodation of the royal family that the sanctuary is a public sanctuary and coordinated setting up of an authoritative advisory group with the Thiruvananthapuram District Judge as its administrator, for its straightforward organization later on. The Committee would comprise of a nominee of the trustee (royal family), the chief Thanthri of the temple, a nominee of the State and a member designated by the Union Ministry of Culture. The SC likewise requested a subsequent panel to be comprised to prompt the authoritative board of trustees on policy matters. The second committee would be headed by a retired High Court judge, selected by the Chief Justice of Kerala High Court. The essentials obligations of the two committees are to maintain the treasures and valuables of the temple.

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The encounter of criminals is not a novel thing in India; in fact, it is much more commonplace than capital punishment. So, more people are killed by the police without trial than criminals sentenced to the gallows through the proper procedure by our courts. If they are a violation of the due process of justice, how come they are still such widespread phenomena?

Why Extra-Judicial Killings Continue Unabated?

It is now a well-known fact that Indians have lost faith in the judicial system. Rampant with red-tapism, corruption, procedural delays and empty posts, the mammoth of a system takes years to fulfill its promises. As the Hindi film, Damini has immortalized: “Tareekh pe tareekh milti hai My Lord, insaaf nahi milta!” This is a sad reality for the majority of people who spend half of their lives trapped in the slow-paced monotony of courts for trivial cases. Over three crore cases are pending in the courts of the country, nearly 15% of them for more than 10 years! As a result, many extra-judicial forms of punishment are seen to bring timely ‘justice’ in places where the courts have been exhausted. For instance, it took nearly 7 years for Nirbhaya rapists to face their ultimate punishment, while the Telangana police disposed off the 2019 rape accused within a few days and were hailed as heroes. This is a bleak picture of our hollow system, which has come to prefer encounters over trials.

Apart from the inadequacy of the judicial system, public perceptions of justice are also responsible for these methods adopted by the police. Justice in India has retained its barbaric, orthodox roots that embrace a tit-for-tat approach tainted with violence. Public lynching of an accused is given moral backing and it is seen as the policemen’s duty to teach the defiant criminals a lesson. So of course encounters of criminals are met with applause and immortalized into Bollywood ‘masala’ scripts. The film industry, with its penchant for the heroic cop protagonist who takes matters in his own hands to rid the society of all evil, has enhanced public acceptance and appreciation of cops turning executioners. Even the police deem it easier to kill a suspect than go through the trouble of building a case and proving the accused’s guilt.

We as citizens view justice in absolute terms. But in reality, the matters of law are much more complex than the black and white camps of fair and unfair. There is a vast grey area that encompasses the latent aspects of truth, penal action, and reform. To simplify it through killing criminals is an insult to the very nature of justice and rule of law. The difference between the roles of Police and the Courts blurs in our mind to give way to a twisted system where the cops play judge, jury and executioner, when all their jobs permit is capturing criminals and bringing them before the law. Even those who do not support the law enforcement’s use of such means willingly turn a blind eye fearing retaliatory action. Unlike the US, a civil movement against the high-handedness of the cops is rendered almost impossible as the police are viewed as the ultimate dispenser of justice.

The Price to Pay

You cannot play with fire without getting burnt; you cannot embrace or allow one form of police brutality (re encounters) without offsetting a spiral of police-administered justice that violates our rights. The custodial torture and deaths of Jayaraj and Fenix are a product of this very system that is used to getting away with killings. It is this very lack of accountability that has put the sanctity of our democracy in peril, for absolute power corrupts absolutely. With few exceptions, most encounters today are jaded with shady details and fake charges. As was seen in Punjab during the heights of militancy, police killed anyone whom they suspected in the slightest to have a connection with insurgents. The same was practised in the case of Naxalites. So many lives were lost with no proof of their guilt presented for perusal.

A democracy guarantees certain rights to its citizens, even to convicts. Free and fair trial is a necessity not only of the accused but also the state in order to ascertain without a doubt that the allegations levelled are true. And even if found guilty, the quantum of punishment should be in proportion to the crime committed. This is the job of courts, not the police. Subverting due democratic process even for handing out punishment threatens the very foundations of our state. The means, after all, do not justify the end, and all logic contrary to this is a sign of approaching totalitarianism. India chose to be a democratic nation for a reason; hence the policing measures should reflect the same commitment instead of behaving in a manner reminiscent of our coloniser’s policies. And the police connivance with the underbelly of crime and politics forms an inescapable nexus which has reduced encounters to a political tool readily used, than a last resort method.

This trigger-happy attitude not only severely deprives the accused a chance to prove their innocence or receive punishment in accordance with their crime; it also dehumanizes them in our eyes. All criminals are not hard-core evil. They are born from us, sometimes because of us…Without due process, the truth about their circumstances and motives will never see the light of the day. If we deprive even the most heinous ones of their rights, we fail as a democracy. Equality before the law is a fundamental right, therefore a terrorist and a petty criminal both have the right to defend themselves in front of unbiased judges through due procedure laid down by the law. Our sense of justice is hence very punitive. We as a people do not believe in reform despite claiming the opposite and are content to see criminals incarcerated for life, or worse, dead. What is the point of locking up the bad guys if they do not become better? Do we want to kill all evil or dive to its roots and weed it out? That is for us to decide.

Reform the Norms

The law is reason without passion

Aristotle

This is one statement that has stood the test of time. There is no doubt that there are numerous criminals with blood on their hands that deserve to be punished, but their fate is for the law to decide. One organ of the law enforcement taking the entire law into their hands is not only a mockery of the system but also defeats the very purpose that due legal processes were created for. The law should punish and reform the accused and simultaneously grant a reprieve to the victim. We cannot imagine the pain of someone whose rights have been violated, and it would be unfair to tell them to wait until justice is served because no amount of judicial action can reverse their suffering. But justice is never served through wanton murders without trials. To deprive the accused of their chance to defend themselves, to kill whom you deem guilty, spells another violation of the law. And if the law-protectors break it brazenly, what is to stop the common man from doing so?

All the delays, extensive paperwork, ever-shifting dates that have made the judicial system so tedious and unattractive call for reform, not a subversion of the law. And not just the system, there is a strong need to change the public attitude and perception of justice, and replace it with a more reform-centric approach instead of plain retribution. For us to question the authorities that undermine the constitution is the first step towards a stronger, more accountable nation.

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“There can be no keener revelation of a society’s soul than the way in which it treats its children.”

-Nelson Mandela

DEFINITION OF CHILD AND JUVENILE UNDER THE JUVENILE JUSTICE ACT, 2015 AND OTHER VARIOUS LAWS

The term child means a person who has not attained the age of 18 years and is not matured enough to understand what is wrong and right. Most of the countries have adopted the principle “Doli Incapex”, which means a person is deemed incapable of forming the intent to commit a crime or tort, especially by reason of age. According to the penal laws, a child between the age of seven to twelve can only be convicted of a crime only when the crime is heinous and they had sufficient knowledge to understand the consequences of their actions. The Juvenile (Care and Protection) Act, 2015 Section 2 (12) defines a ‘child’ as a person who has not completed eighteen years of age, further, it classifies into two categories-

• child in conflict with the law, the child who committed an offence and is under the age of 18 years on the date of commission of the offence.
• child in need of care and protection, children from deprived and marginalized sections of society as well as those with different needs and vulnerabilities.

Children Act,1960 Section 2(e) describes a child as a boy who has not reached the age of sixteen years or a girl who has not reached the age of eighteen years. Whereas the United Convention on the Rights of Child, 1989 defines child means a human being below the age of eighteen years unless the law declaration applicable to the child, the majority is attained earlier.

HISTORY OF JUVENILE JUSTICE SYSTEM IN INDIA

After the independence of India, The Children Act 1960 came into play. The Act not be adopted by all the states led to different law being applied in different parts of the nation. To bring uniformity in the system the Juvenile Justice Act 1986 was enacted to provide care, protection, development and rehabilitation of neglected or delinquent juveniles. To protect the best interest of the juvenile offenders, the General Assembly of the United Nations adopted a convention on the Rights of Child in 1989. The Convention states that to protect the social – reintegration of juvenile, he shall not be subjected to judicial proceedings. This led India to repel the Juvenile Justice Act 1986 and gave effect to a new act called “The Juvenile Justice (Care and Protection of Children) Act, 2000.

The frightful incident of “Delhi Gang Rape Case”, forced the Indian Legislature to amend the previous act twice- first in 2006 and later in 2011. The act was replaced soon by The Juvenile Justice (Care and Protection) Act, 2015. The aim is to integrate the laws relating to children suspected and found to be in conflict with the law and children in need of care and protection through caring and taking into account their basic needs through proper care and security, growth, treatment and social integration, by adopting a child-friendly approach to the adjudication and disposal of matters in the best interest of children. The Act also focuses on the rehabilitation of young offenders through numerous childcare centres and institution. The highlights the formation of two main bodies that would deal with the young offenders, i.e., the Juvenile Justice Board (JJB’S) and Child Welfare Committee’s (CWCs). 

JUVENILE JUSTICE BOARD AND CHILD WELFARE COMMITTEE

The Juvenile Justice Board shall be formed in each district for the exercise of powers and the discharge of its duties relating to juveniles in conflict with the law. The JJB shall perform a preliminary inquiry to determine whether a juvenile offender is to be returned for probation or is to be charged as an adult. In the same way, the Child Welfare Committee deals with all children who are ‘in need of care and protection’ i.e. children from deprived and vulnerable parts of society, as well as those with different needs and disadvantages, and aims at providing institutional care and protection and their rehabilitation, reintegration, and restoration. 

COMPOSITION, POWERS AND FUNCTIONS OF CWC’s AND JJB’s

• Each CWC shall be comprised of a Chairperson and four other members, of whom at least one member should be a woman and another expert on child-related issues.
• CWC’s deals with the children who belong to the deprived sections of society as well as those with specific needs and disabilities, while JJB’s deals with those accused of a crime.
• The CWC has the exclusive power to administer all activities related to children in need of treatment and care. 
• The JJB shall have the authority to deal exclusively with all the proceedings under the Act, relating to children in conflict with the law, in the area of jurisdiction of such Board.

JUVENILE JUSTICE AND CONSTITUTION OF INDIA

The Constitution of India is considered as the fundamental law of India. Constitution provides rights and duties of citizens. It also provides provision for the working of the government machinery. Part III of the Constitution defines the Fundamental Rights for its citizens, whereas Part IV of the Constitution defines Directive Principles of State Policies (DPSP), which serves as general guidelines for the shaping of government policies. The Constitution of India provided for certain fundamental rights and obligations, for the welfare of children. 

• Article 21A- Right to free and compulsory elementary education for all the children under the age of 6 to 14 years. 
• Article 24- Right to be protected from any hazardous employment under the age of 14 age.
• Article 39 (e)- Right to be protected from being abused in any form by an adult.
• Article 39- Right to be protected from human trafficking and forced the bonded labour system. 
• Article 47- Right to be provided with good nutrition and a proper standard of living. 
• Article 15(3)- Special powers to the State to make any special laws for the upliftment and the betterment of children and women. 

Hence, while drafting the Juvenile Act, 2015 the legislature considered all the required provisions laid down in the Constitution to protect children’s rights in all practicable ways. 

CONCLUSION

Juvenile crimes are a bitter truth and to reduce the rate of juvenile crimes, the Act needs to be effectively implemented and awareness must be spread. The attitude and mindset of key actors in the system, such as the police, needs to be changed from prosecuting to transforming the youth on conflict with the law. There are various psychological, biological, physiological and personal factors responsible for juvenile delinquency. Change is possible through better social, economic conditions, creation of awareness and also through the change in people’s attitudes towards juveniles.

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