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N. J. Comp. Law Vol. 1 (1) 2014, pp.
This Journal is an academic and peer-revie...
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COVERAGE OF THE JOURNAL
OBJECTIVE OF THE J...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
N J C L
National Journal
of
Comparative La...
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Volume 1, 2014 Issue 1, 2014
Editorial Boa...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.National Journal
of
Comparative Law
Volume ...
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From the Editor-in-Chief
Dear learned Read...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
at all times and in all places. “It must b...
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criticize his “social engineering” doctrin...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
production to the common detriment” and “t...
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or disability or socially or economically...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
their moral fibre.
They have no faith in ...
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© National Journal on Comparative Law. Al...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.National Journal
of
Comparative Law
Volume...
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Copyright: Submission of a manuscript imp...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
AbstractAbstract
Key Words : Defective Tra...
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this system of selecting goods or avail-
i...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
used the mark within the particu-
lar geog...
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PROTECTION OF WELL KNOWN
TRADEMARKS IN IND...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
eration the bad faith involved either of t...
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ing in the territory of a member or a regi...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
10 years and thereafter it can be renewed
...
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er pleaded that since B did not buy the
sc...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
since day one. A can make a com-
plaint ag...
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safety hazards are found due to absence
o...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
ers are kind to them. But it is not so. T...
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1. S. 2(zb) defines trademarks as a mark...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
HEALTH - A HUMAN RIGHT?
Shishir Tiwari 1
...
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Human beings by virtue of being humans
po...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
these two documents. The WHO defini-
tion...
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highest attainable level of health;
• Th...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
Human rights are interdependent, in-
divi...
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• Violations or lack of attention to
hum...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
A focus on the underlying conditions
that...
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Convention on the Elimination of
All Form...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
International Convention on the
Protectio...
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African Charter on Human and Peo-
ples’ R...
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N. J. Comp. Law Vol. 1 (1) 2014, pp.
ble resources. The core content stands in...
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It is my great honor and pleasure to invite you to submit your most recent research and ideas to The Journals mention below National Journal of Comparative Law(NJCL) ISSN : 2393-9338 International Journal Of Applied Environmental Science & Technology (Ijaest):Issn : 2321-8223 International Journal Of Agricultural Science And Technology : Issn 2319-880X International Journal Of Aquaticscience And Technology : Issn 2320-6772 International Journal Of Nanoscience And Technology : Issn 2319-8796 And International Journal Of Geoscience And Technology : Issn 2321-2144 International Journal Of Lifescience And Technology releasing soon. and you can submit your manuscripts at manisha_npp@yahoo.com.
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  • 1. 1 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. This Journal is an academic and peer-reviewed publication (Print ISSN 2393 -9338 ) A Refereed Journal Volume 1, Issue 1 October 2014 ISSN: 2393 -9338
  • 2. 2 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com COVERAGE OF THE JOURNAL OBJECTIVE OF THE JOURNAL CALL FOR PAPERS We invite you to submit high quality papers for review and possible publication in all areas of Comparative Laws which include Criminal Law, Contract law, Labour law, Company law, Tort law, Family Law, Any other related topics. All authors must agree on the content of the manuscript and its submission for publication in this Journal before it is submitted to us. Manuscripts should be submitted by e-mail to the Editor at manisha_npp@yahoo.com . To promote and encourage specially Young Law Scholars to take active part in research and get acquainted with the latest development in the field of Comparative Laws. To promote cooperation in the pursuit of knowledge in general and ex- change ideas in the field of Indian and International Law in particular. Following types of papers are invited for publication in this Journal :- a) Original Research Papers b) Review Papers c) Short Communications d) Case Reports e) Letters to the Editor f) As you see TYPES OF PAPERS ARE INVITED REVIEWERS PROCESS All manuscripts are reviewed by an editor and members of the Editorial Board or qualified outside Reviewers. Decisions will be made as rapidly as possible and the Journal strives to return reviewer’s comments to authors within 6 weeks. The Editorial Board will re-review manuscripts that are accepted. It is the goal of the this Journal to publish manuscripts within 4 weeks after submission after getting OK report from the Author. CONTACT US ABOUT THE JOURNAL National Journal of Comparative Law(NJCL) is a biannual and peer-reviewed Journal published by JPMS Society in Collaboration with Academic and Research Publications. JPMS Society is a Society registered under the Societies Registration Act and its Registration No. is 1649/1986-87.This journal is published from year i.e. 2014. The ISSN of the JOURNAL is 2393-9338. For all publication matters related to the Journals Acceptance letter for publication of articles , Invoice, Reprints etc. should be sent directly to the PUBLICATION EDITOR whose address is as follows : To, Er. Manisha Verma, B.E.(Electronics) Publication Editor (Chief Executive) Acadeic and Research Publications and JPMS Society Registered under Societies Registration Act. [Registration No. 1649/1986-87] 22, Gaur Galaxy, Plot No 5, Sec-5, Vaishali , Ghaziabad (U.P.) - 201010 (INDIA) Email : manisha_npp@yahoo.com , arp@manishanpp.com, manisha@manishanpp.com, www.manishanpp.com Contact at : 09560396574, 09310343504, 0120-4124773 For publication of your article,Acceptance letter, Review Reports , Status Report , and all other queries related to your articles, should be sent directly to the Editor-in-Chief , whose address is as follows: Prof. Manik Sinha, THE EDITOR-IN-CHIEF Email : manik.sinha2@gmail.com , Contact at : 09415155631 For quick reply, please note change of address and contact them directly by Post or email:- • Administrative Law • Admiralty & Mari- time • Civil Rights • Banking • Commercial Law • Communications Law • Computers & Tech- nology • Constitutional Law • Contracts • Criminal Law • Disability • Divorce • E m p l o y m e n t Law • Estate Planning • Family Law • History • Constitutional&administrativelaw • Information technology law • Contract law • Labour law • Company law • Tort law • Property law • Tax law • Central Board of Direct Taxes • Income Tax • Service tax • Trust law • Family law • Hindu Law • Muslim law • Christian Law • Nationality law • Law enforcement • Police Force Indian Laws International Laws
  • 3. 3 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. N J C L National Journal of Comparative Law Volume 1, Issue 1, 2014 JPMS Society 22, Gaur Galaxy, Plot No 5, Sec-5, Vaishali , Ghaziabad (U.P.) - 201010 (INDIA) © Journal on Comparative Law. All rights reserved. No portion of material can be reproduced in part or full without the prior permission of the Editor. Note : The views expressed herein are the opinions of contributors and do not reflect the stated policies of the JPMS Society and Academic And Research Publications October, 2014 This Journal is an academic and peer-reviewed publication (Print ISSN : 2393 - 9338 ) INAUGURAL ISSUEINAUGURAL ISSUE Cite this volume as 1(1)NJCL(2014) and so on....
  • 4. 4 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com Volume 1, 2014 Issue 1, 2014 Editorial Board © National Journal of Comparative Law. All rights reserved. No portion of material can be reproduced in part or full without the prior permission of the Editor. Note : The views expressed herein are the opinions of contributors and do not reflect the stated policies of the JPMS Society. Correspondence: All enquiries, editorial, business and any other, may be addressed to: The Editor-in-chief, National Journal of Comparative Law (NJCL), H.Office: 22, Gaur Galaxy, Plot No 5, Sec-5, Vaishali , Ghaziabad (U.P.) - 201010 (INDIA) Email : manik.sinha2@gmail.com; arp@manishanpp.com, manisha_npp@yahoo.com, www.manishanpp.com. October, 2014 National Journal of Comparative Law ISSN : 2393 - 9338 Chief Editor Prof. Usha Tandon Professor & Incharge Campus Law Centre University of Delhi, Email : Editor-in-Chief Prof. Manik Sinha Former Dean, Faculty of Law, Dr R.M.L Awadh University, Faizabad (UP), Senior Advocate, Govt of India, High Court, Lucknow Email : maniksinha2@gmail.com Publication Editor Er. Manisha Verma, B.E.(Electronics) (Chief Executive) AcademicandResearchPublications & JPMS Society Registered under Societies Registration Act. [Registration No. 1649/1986-87] Email:manisha_npp@yahoo.com, www.manishanpp.com Chief Editor Prof. (Dr) Usha Tandon The Professor-In-Charge of the Campus Law Centre. Email : utandon26@gmail.com PATRON Prof. (Dr) C. M. Jariwala B. Com, LL.B (BHU), LL.M., Ph.D. (London) Dean (Academics) - Chairperson Dr. Ram Mahohar Lohiya National Law University, Lucknow.U.P. Email: dean_academics@rmlnlu.ac.in Coordinating Editor Dr. S. C. ROY Associate Professor, Chanakya National Law University, Patna Email: scroy2010@gmail.com Associate Editor Dr. Yashwant Singh Former Dean, Faculty of Law, Dr R.M.L Awadh University and Pricipal(Retd.) K. N. Institute of Social Science Sultanpur U.P. Email:yashwant.singh1950@yahoo.com Managing Editor Dr. A. K. Singh Associate Professor of Law K.S. Saket Post Graduate College Faizabad U.P. Email : ajaiksinghlaw@gmail.com Member of Editorial Advisory Board Subhash Chandra Singh (M.A., LL.M., Ph.D.) Dean, School of Legal Studies, Assam University, Silchar
  • 5. 5 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp.National Journal of Comparative Law Volume 1, 2014 October, 2014 Issue 1, 2014 Advisory Editorial Board Mr. Shishir Tiwari Assistant Professor, Department of Law, North-Eastern Hill University, Shillong 793022 India Email: shishirlaw@gmail.com Mr. Bibhash Kumar Mishra Assistant Librarian, Kumaun University, SSJ Campus Almora (Uttarakhand) Email : bkmishra15@rediffmail.com Gitanjali Ghosh Ph.D. Candidate, NLSIU,Bangalore, Researcher Centre forWomen and the Law, National Law School of India University (NLSIU), Bangalore- 560072 INDIA Email: gitanjalighosh@nls.ac.in Dr. Raju Majhi LL.M., Ph.D. (BHU) Assistant Professor in the Faculty of Law, Banaras Hindu University, Varanasi. Mr. Rajib Bhattacharyya Assistant Professor,University Law College, Guwahati University Email : bhattacharyya.rajib@gmail.com Dr. Manoj Mishra Vice Principal Admerit College, Patna, GL Chanakya National Law University, Patna Email : manojbashist@gmail.com Rajeev Kumar Singh Research Scholar (Cyber Security Threats, Law- Strategy) Chanakya National Law University, Patna Email: rba.indian@gmail.com Dr. R. P. Kaushal Asstt. Prof. Deptt. of Statistics & Social Science MSKJUA&T, Banda - 210001 (UP) Email: kaushal_rajendra@india.com Ms. Poonam Kumari Assistant Professor, School of Law and Governance, Central University of Bihar, Gaya Campus, Gaya, Bihar Email : poonamkumari@cub.ac.in Dr. Pradip Kumar Das Assistant Professor & Head(I/C), School Of Law And Govern- ance, Central UniversityOf Bihar, Gaya Campus, Gaya, Bihar & former Assistant Professor-II, School of Law, KIIT University, Bhubaneswar, Odisha, former Trade Mark Examiner, Government of India Dr. Achyutananda Mishra Assistant Professor, Faculty of law, ICFAI Foundation for Higher Education(Deemed University)Hyderabad Email:achyutanandamishra@yahoo.in Members of Editorial Board
  • 6. 6 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com From the Editor-in-Chief Dear learned Reader, While giving the name ‘Comparative Law’ to this Journal, we were inspired by the ideology and personality of Nathan Roscoe Pound (1870- 1964)- the lawyer, the Judge (Auxiliary Judge in the Nebraska Supreme Court) , the great scholar and a radical thinker combined in one, who had founded “Annual Bulletin of the Comparative Law Bureau” published by the American Bar As- sociation. At the young age of 36 years, Pound was universally acknowledged as a radical thinker and social reformer, when he addressed the American Bar Associa- tion in 1906 and projected his idea of Sociological Jurisprudence, where he said that since the society is dynamic, hence the law cannot be static. He affirmed that the “the Law must be stable, it must not stand still.” He asserted his view force- fully at a time when the U.S. and Europe were under the deep influence of “Natural law” theory, which believed in strict law. He went a step further when he said that the law must follow the society and also change it. Roscoe Pound, after five decades i.e. 1959, in his landmark work “Jurisprudence”, developed his ideas further by the declaring the Law as an instrument of Social Engineering and the Law- yer, Law Scholars and Jurists were the “Social Engineers.” Pond had courage to deny the Natural Law theory, that the society must follow the law, which is static. He expressed his disagreement with the Realist School ideology led by Justice Holmes (1841-1935) and Karl N. Llewellyn (1893-1964). His theory was in total contradiction with the well established dictum of French philosopher Friedrich Carlvon Savigny (1779-1861), who believed that law is not made, rather it is found and it is the history which creates law, thus codification of law would have an adverse affect. He said the jurists must go through the origin of a law and its historical transfor- mation. Savigny’s doctrine was firstly repudiated by the British, who initially tried experiment of codification of laws in its Colony in India through Lord Thomas Ma- caulay (1800-1859), the first Law Member of the Governor General’s Council, when he drafted I.P.C., Cr.P.C. C.P.C. etc., which were subsequently codified by the British Parliament after his death. After it was found successful in India, the Brit- ish adopted it in England. Similarly, the British and U.S. society also rejected the theory of the Modern Realism, which emphasized on “fact” as well as Pure Theory of the Australian Philosopher Hans Kelsen (1881-1973), who believed that “theory of law must deal with law as it is, not as it ought to be” and that is should be applicable Prof. Manik Sinha
  • 7. 7 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. at all times and in all places. “It must be free from ethics, politics, sociology, history, etc. rather it should be pure.” He emphasized on “norms” i.e. if X happens, then Y must happen. He calls this nature of law as “Grundnorm”, the basis of fundamental norm. He was against mixing the law to natural or social sciences. His theory char- acterized as the Pure Theory of Law. The focus was on law alone and on none else. Pound was an ardent follower of the German Idealist G.W.F. Hegel (1770-1831), the propounder of the philosophy of “dialectics of nature” and historical evolution. His firm commitment for the working class and labour came from the thought of the doctrine of “dialectics of nature”, propounded by Hegel and revo- lutionary ideologies of Karl Marx (1818-1883). Marx in his work A Contribution to the Critique of Political Economy (1857), wrote “it is not the consciousness of men that determines their existence, but their social existence that determines their consciousness”, He further developed his ideology by saying that “law is a super- structure on an economic system.” In “Communist Manifesto” (1848) authored by Marx and Angles they said that “The history of all hitherto society is the history of class struggle.” Marx enunciated his doctrine that “the Capitalism contained in it the seeds of its destruction”, and the distribution of the wealth of a nation be so distrib- uted so as to sub-serve the common good on the basis that everyone in the society must got his share of the wealth. He said “from each ac- cording to his ability to each accord- ing to his needs”, and his endeav- our to awaken the working class of the world to get themselves free from the bandage of exploitation by the Capitalist class by exhorting them “workers of the world unite, you have nothing to lose but your chain”, and the re- sult was a great revolution that took place around the world demolishing the Capitalist System based on exploitation and oppression of the working class. Pound advocated for the wel- fare of labour and working class as a result of which several impor- tant labour laws, namely-Work- men’s Compensation Law, Law imposing strict liability for industrial accident, Law on Contributory Neg- ligence, Master-Servant relationship etc. were enacted in U.S. Roscoe Pound sailed with his ideology against the current of Modern Realism and succeeded in overcoming the other ideology. Pound’s contemporary critics would
  • 8. 8 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com criticize his “social engineering” doctrine saying that the name of social engineer was a misnomer, for a lawyer or jurist cannot be said to be a social engineer, because in the case of an Engineer, say a Civil Engineer, if he is required to construct a bridge, then he has before him a plan or design of the proposed bridge and has with him finished products, which he shall use for the construction of the bridge, but in the case of So- cial Engineer, there is neither any plan nor any finished product. We believe that for a Social Engineer, he has before him a Preamble of Constitution as the plan or design of the proposed society and he also with him the Constitution and the Laws made therein as the finished products which the Social Engineer shall use it as the tool for social change. Now, again comparing with the Civil Engineer, for the Construction of the bridge, if he is required to have possessed technical skill, i.e. education and training in Civil Engineering, then much in the same way, the Social Engineer is also required to have with him the ideological commitments as the skill for shaping the future of the society, because these ideological commitments would be the tools for him for the interpretation of the Constitution and the laws. Thus most important aspect is the ideological commitment to build a nation, as a Social Engineer, he interprets the Constitution and the laws so as to achieve the goal enshrined in our Preamble, thus his interpretation must be guided by his ideology. The Preamble commands to build a Sovereign Socialist Secular Dem- ocratic Republic Nation and to secure to all its citizen Justice, Liberty, Equality and Fraternity. Former Chief Justice of India R.C. Lahoti in his work: ‘Preamble- The Spirit and Backbone of the Constitution of India’ (2004 p.62) has rightly observed that “The Preamble of the Constitution is not just a piece of legal drafting or a matter of mere formality. It is a code of conduct. It is a lesson in morality and ethics - to be learnt by heart and to be practiced. It contains philosophy, full of spiritualism and mysticism. It has a rhythm and message of ringing bells. Do we have ears to listen, eyes to read and hearts to understand?” These ideological commitments comprise firstly Pond’s theory of Social Engineering, the doctrines of Hegel and Marx, principle of “Ram Rajya” enunciated by the Father of the Nation, Mahatma Gandhi. No doubt the founding fathers of our Constitution were deeply under the influence of Mahatma Gandhi, nevertheless they were also inspired by Jeremy Bentham, John Austin, Sir Henry Maine, Hegel, Marx and other contemporary social and political thinkers, but we find the shadow of Marxist ideology in our Constitution particularly in Article 19(1) (c), which guarantees to every citizen to form Union. This is the most important Fundamental Right of the labour and working class to raise their grievances before their capitalist masters and to arm them with the power of collective bargaining by means of their trade unions and similarly, Article 39(b), (c) and (d) mandates the State to secure “that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good; and “the opera- tion of the economic system does not result in the concentration of wealth and means of
  • 9. 9 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. production to the common detriment” and “there is equal pay for both men and women.” We find the above ideological commitments in interpreting our Constitu- tion with a view to achieve the National goal enshrined in the Preamble to establish an egalitarian society- free from exploitation and inequality. Justice V. R. Krishna Iyer, in his is letter dated 17.11.1986 in response to my letter had said: ”Social justice in our feudal- cum- exploitative milieu, is under great strain and stress. With the result that the Fourth World within the Third World viz: the lowliest, the lost and the last, are outlawed and out of bound for justice until a militant movement turned to the hard realities of Indian life came to rescue these vast millions currently jettisoned by the Justice System and deliver to them effective remedies. How shall we fashion new access jurisprudence, a creative affirmative action process and sensitive judiciary which will respond to those whose life-long lot is blood, toil, tears and sweat? The dynamic rule of law can emerge only if catalyzed by jurists with a vision.” We find that through several historical judgments, Justice P.N. Bhagwati (b.1920) and Justice V.R. Krishna Iyer (b.192), created revolution in the Indian judicial system, firstly, by diluting the Anglo-Saxon concept of “locus standi” by allowing any public spirited person to espouse the cause of a poor, downtrodden, in- digent, depressed class, who is unable to approach the court and also inspired the Courts to have a tilt in fevour of such depressed person, when in the litigation, the other side is a wealthy person like a Capitalist and Industrialist. We find the above reflection in the following judgments rendered by Justice Bhagwati and Justice Krishna Iyer:- 1. Mumbai Kanger Sabha, Bombay Vs. Abdulbhai Faizullabhai AIR 1976 SC 1455, 2. Akhil Bhartiya Soshit Karmachari Sangh(Rly) Vs.U.O.I & othersAIR 1981 SC 298 at 317, 3. S.P. Gupta Vs. President of India & others AIR 1982 SC 149, 4. Miss Veena Seth Vs. Bihar AIR 1982 (2) SCC 583, 5. Bandhua Mukti Morcha Vs. U.O.I. & others AIR 1984 SC 802. Justice Bhagwati in his judgment in S.P. Gupta v. Presi- dent of India & Others AIR 1982 SC 149 altogether dismissed the traditional rule of standing, and replaced it with a liberalized modern rule. In this case, the Court awarded standing to advocates challenging the transfer of judges during Emergency. Describing the traditional rule as an “ancient vintage” of “an era when private law dominated the legal scene and public law had not been born,” the Court concluded that the traditional rule of standing was obsolete. In its place, the Court prescribed the modern rule on standing: “Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness
  • 10. 10 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropri- ate direction, order or writ, in the High Court under Article 226, and in case of breach of any fundamental right, in this Court under Article 32. 58 (I)t must now be regarded as well settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the Court on account of some disability or it is not practicable for him to move the Court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke assistance of the Court for the purpose of providing judicial redress to the person wronged or in- jured, so that the legal wrong or injury caused to such person does not go un-redressed and justice is done to him. ………………. Today a vast revolution is taking place in the judicial process; the theatre of the law is fast changing and the problems of the poor are coming to the fore- front. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. It is in this spirit that the Court has been entertaining letters for Judicial redress and treating them as writ petitions and we hope and trust that the High Courts of the country will also adopt this pro-active, goal-oriented approach. If the sugar barons and the alcohol kings have the Fundamental Right to carry on their business and to fatten their purses by exploiting the consuming public, have the ‘chamars’ belonging to the lowest strata of society no Fundamental Right to earn an honest living through their sweat and toil? The former can approach the courts with a formidable army of distinguished lawyers paid in four or five figures per day and if their right of exploit is upheld against the government under the label of Fundamental Right, the courts are praised for their boldness and courage and their independence and fearlessness are applauded and acclaimed. But, if the Fundamental Right of the poor and helpless victims of injustice is sought to be enforced by public interest litigation, the so called champions of human rights frown upon it as waste of time of the highest court in the land, which, according to them, should not engage itself in such small and trifling matters. Moreover, these self-styled human rights activists forget that civil and political rights, priceless and invaluable as they are for freedom and democracy, simply do not exist for the vast masses of our people. Large numbers of men, women and chil- dren who constitute the bulk of our population are today living a sub-human existence in conditions of abject poverty: utter grinding poverty has broken their back and sapped
  • 11. 11 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. their moral fibre. They have no faith in the existing social and economic system. What civil and political rights are these poor and deprived sections of humanity going to enforce?” In Municipal Council, Ratlam v. Vardhichand & others AIR 1980 SC 1622, Krishna Iyer, J. relaxed the rule of locus standi as under: “The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero-in on them as they involve problems of access to justice for the people beyond the blinkered rules of ‘standing’ of British Indian vintage. If the center of gravity of justice is to shift, as the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered..... “ We have, thus adopted the aforesaid values and ideologies for realizing the goal, enshrined in our Preamble with the aid of the Constitution. The Country looks upon the younger generation to come forward actively to become the social en- gineers to build a Sovereign, Secular, Socialist, and Democratic Republic Nation, where the commitments made by “We the People of India” on 26th day of November, 1949 for the common man of the land of Mahatma Gandhi, who had dreamed for “Ram Rajya”, are fulfilled. Through this maiden issue of this Journal, we respectfully pay our humble tribute to Dean Roscoe Pound and also at the same time we dedicate this issue to the young social engineers with high hope and trust that by their vision and ideological commitments they shall realize the dreams of the founding fathers of our Constitution because the future of our Country rests with the new generation of lawyers, judges, jurists and law academicians. We firmly believe that, in the words of Justice Krishna Iyer, they “will respond to those whose life-long lot is blood, toil, tears and sweat. (?) The dynamic rule of law can emerge only if catalyzed by jurists with a vi- sion.” Although this Journal is registered by the NISCARE as a biannual, as such it shall have two Volumes in a year, but our endeavor is to bring its parts quar- terly. Although we invite papers from all learned scholars, lawyers, judges, jurists and academicians, but our emphasis shall always be to secure largest participation of younger generation, who are gifted with vision and full of vigor, energy, dynamism and zest to do something new and exceptional in this World, particularly to achieve our National goal as enshrined in our Preamble and the Constitution. We eagerly await your scholarly contribution in the form of Articles, Research papers, Review, legal news reporting and important new case-laws of the Supreme Court and High Courts. With the best of regards, Yours sincerely, (Manik Sinha) Editor-in-Chief
  • 12. 12 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com © National Journal on Comparative Law. All rights reserved. No portion of material can be reproduced in part or full without the prior permission of the Editor.
  • 13. 13 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp.National Journal of Comparative Law Volume No. 1 Issue No. 1, 2014 C o n t e n t s S. No. Title Page No. October - 2014 1. 2. 3. 4. Protecting The Trademark For Consumer Protection—Issues And Problems In The Globalised Economy Dr. S.c.roy Health - A Human Right? Shishir Tiwari and Gitanjali Ghosh Copyright: Issues And Challenges In Digital Environment Bibhash Kumar Mishra 5. GST – The Challenge Of Implementation Dr. Manoj Mishra Domain Name, Internet and Trademark: Issues Rajeev Kumar Singh 1 13 30 35 46 Protection Of Woman From Sexual Violence And Reproduction: An International Perspective Dr. Ajay Kumar Singh 6. 57
  • 14. 14 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com Copyright: Submission of a manuscript implies: that the work described has not been published before (except in the form of an abstract or as part of a published lecture, or thesis) that it is not under consideration for publication elsewhere; that if and when the manuscript is accepted for pub- lication, the authors agree to automatic transfer of the copyright to the publisher.
  • 15. 1 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. AbstractAbstract Key Words : Defective Trade Mark, Misleading Advertisement, Consumer Education. INTRODUCTION The genesis of trademarks1 lies in the recognition of the manufacturers, propri- etors, producers of the goods or services. This shows as to who is the owner of the goods. Initially, when there was no com- petition, there was no need to put any mark, symbol, and letter, and number, logo to segregate the goods or services of one proprietor to another. But when there was more than one producer, the necessity of putting marks for differentia- tion emerged rapidly. This developed the sense of belongingness as well as the sense of responsibilities also to protect the quality of either goods or services in order to attract the customers for the de- velopment of trade and profits ultimately. The customers also got acquainted with References: 20Pages:12 (Date of Receipt : 06-06-2014; Date of Acceptance for Publication : 03-08-2014) PROTECTING THE TRADEMARK FOR CONSUMER PROTECTION—ISSUES AND PROBLEMS IN THE GLOBALISED ECONOMY Dr. S. C. ROY Associate Professor, Chanakya National Law University, Patna Email : scroy2010@gmail.com 1-12 Çonsumer is the sole end and purpose of all production. Every human being who consumes anything is a consumer, regardless of his age, occupation, gender, com- munity or religious affiliation. The earlier concept of CAVEATE EMPTOR made them more dependent and helpless. The consumers had to purchase goods on high prices without any security of brand or mark of trading, believing the goods of high quality and quantity. But even the enactment of the consumer protection Act 1986, the theory of CAVEATE VENDATOR seems insufficient in the global economy and trade. The trade marks Act 1999 provides protection to the owner but does not assure any protection in terms of slogan and quality of the product. Trademarks are suggestive not descriptive in character and it is very difficult to detect the defects and deficiency in the globalised market. Misleading advertisements on mass media easily influence the consumers. The packaged commodities have variation in contents and hidden price component too. The problems of incorrect rates are very common related to MRP, MSP along with unauthorised sale of medicines, poor customer services by the telecommunications, non-fulfilment of warranty and guarantee. Can the trademarks and consumer protec- tion Act together protect the interest of the consumers? Can Competition, Awareness and education protect consumers in the organised sellers’ market?
  • 16. 2 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com this system of selecting goods or avail- ing services for price with an assurance of good quality. In this practice, the gul- lible traders started taking undue advan- tage of the earned reputation of the mark for goods or services. Here started the need to protect the interest of the trad- ers for the development of the trade and industries. Although earlier there was no law specific for the trade mark protection. It was protected under the common law principle. As it is a general principle that no one can take undue advantage of the labour of another without due permission and payment .Thus the protection of the trade mark under the common law princi- ples got recognition but with the increas- ing trade and commerce forced to legis- late specific legislation for the protection of the trade mark to protect the interest of the traders as well as the consumers. The Trade and merchandise marks Act 1958 was enforced to protect the interest of the traders. But with the globalisation of trade, this Act proved inadequate for the protection of the trade mark. Thus the trade marks Act 1999 came into existence after TRIPS agreement. The trade marks Act is an integral part of the industrial property, therefore it has been put under the domain of intellectual property. As the labour, skill and judgement are required for the creation of intellectual property, so is with the trade mark. The Act provides protection to the traders whose trade mark is registered. The unregistered trade mark is still governed under the common law principle, i.e. Law of passing off. At the same time, the GI also is a subject of trade in large quantity not only in India but all over the world, which is duplicat- ed and marketed without any adequate protection. The consumer protection Act has opened the door- hope without spot relief. Although the traders always project that the market is competitive, therefore the customer requires to select the prop- er goods of particular trademarks. But the traders lure the customers with at- tractive advertisements which are decep- tive. In this scenario the customers are bewildered and puzzled. There is a pro- vision of consumer education but it fails to educate even the educated mass.Can the legal provisions protect the consum- ers alone? Whether the active involve- ment of the NGOs and establishment of the CONSUMER WATCH in each market to educate and protect the customers are not required? PROTECTION OF TRADE MARKS UNDER THE TM ACT 1999 Trademark is any word, name, sym- bol, or device capable of distinguish- ing the goods or services of one per- son from those of others, and may include shape of goods, their pack- aging and combination of colours. Trade Mark includes a brand name, a hall mark, and a service mark. A trademark may be an insignia, la- bel, name, sign, logo, device, signa- ture, numerals, packaging, shape of goods, colour combination2 etc. In other words, a trademark is a vis- ual symbol used in relation to any goods or services to indicate some kind of trade connection between the goods and services and the per- son using the mark. It usually identi- fies the product and acknowledges its unchanged quality and helps to advertise the product. This gives the consumer satisfactory assurance of the quality of the article he is buy- ing. Their duration is not limited and they may last forever, subject to re- newals at proper intervals. Priority of right is determined by who first 1-12
  • 17. 3 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. used the mark within the particu- lar geographic area. In those coun- tries, which recognize common law rights, use of a mark commercially must be demonstrated before grant of registration of the mark. If they are not properly used and protected, it becomes difficult to be enforced against misuse. Brands today are demonstrably the most powerful and sustainable wealth creators in the world. There- fore, a brand’s future needs to ad- dress how to be better, stronger, more distinctive and more valued. The definition of a brand is probably more complex today than it has ever been. People have more choice to- day than they ever had before. So, the brand must be a bridge of trust to the consumer. Trust is undoubt- edly the future of a brand. A brand has to be customer-friendly. There are many characteristics shared by the strongest brands today, the most critical of which are clarity, consistency and leadership. Around the world, millions of dollars are spent every year in building a strong brand. A brand is the identity of a product and assures of a pre-sold quality. Corporate image is now a days be- ing treated as a brand. It is the net re- sult of interaction of all experiences, interaction of belief and knowledge that people have about the compa- ny, and many products have names synonymous with the brand names. A brand thus generates the goodwill of the company also and, therefore it needs to be protected. Goodwill is generated as the business is carried on and is augmented with the pas- sage of time, and it is the mechani- cal quality of a particular trade, which attracts the customers. Good- will has become a component of the total value of an undertaking that is attributable to earn profits. There- fore, brand protection becomes in- evitable in the present day scenario. Trademarks which are applied to goods and Service marks are ap- plied to services are protectable in India apart from Certification marks3, which indicate that par- ticular products or services meet the standards set by the certifier. Well-known marks4 are also grant- ed protected in India, though most countries protect only trademarks and service marks. India also rec- ognizes, trademark rights under the Common law. Such rights are ac- quired, through use of a trademark in commerce and registration is not mandatory. Common law rights ex- tend to a geographic area, in which the trademark owner carries on his business under his mark in relation to products or services to which the mark is applied. Priority of right is determined by who first used the mark within a particu- lar geographic area. In countries, like India, which recognize common law rights, use of a mark in com- merce has to be proved before reg- istration of the mark can be granted. In those countries that do not recog- nize common law trademark rights, such rights can be acquired only through registration.. Priority is determined by the fil- ing date of the trademark applica- tion. Under the T. M. Act 1999, if a mark/brand is well-known or world famous, it is liable to be protected, 1-12
  • 18. 4 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com PROTECTION OF WELL KNOWN TRADEMARKS IN INDIA The Trademarks Act was introduced in India in 1999 and came into effect on 15th September 2003. One of the changes that has been brought about by the Act is that it gives statutory protection to well-known Trademarks which were earlier protected under the Common law. The Registrar takes into consideration, while determin- ing that the mark is a well-known mark. That the knowledge or recognition of the alleged well known mark in the relevant section of the public including knowl- edge obtained as a result of promotion of the trademark. The duration, extent and geographical area of any use for that trademark. The duration, extent and geographical area for any promotion of the trademark including advertising or publicity and presentation at fairs or ex- hibition of the goods or services in which the trademark appears. The duration and geographical area of any registration of any publication for registration of that trademark under this Act to the extent that they reflect the use or recognition of that trademark. The record of successful enforcements of the rights in that trade- mark, in particular the extent to which the trademark has been recognized as a well-known trademark by any Court or Registrar under that record. The number of actual or potential consumers of the goods or services. The number of persons involved in the channels of distribution of the goods or services. The business cir- cle dealing with the goods and devices to which the trademark applies6. Whereas a trademark has been deter- mined to be well known in at least one relevant section of the public in India by any court or Registrar, the Registrar shall consider that trademark as a well- known trademark for registration under this Act. In addition to this there are sev- eral facts that are not taken into consid- eration by the Registrar in determining the well-known trademark. These are as fol- lows:- i. The Trademark has been used in India; ii.That the Trademark has been registered; iii.That the application for reg- istration of the Trademark has been filed in India; iv.That the trademark is well known in or has been registered in, or in respect of which an application for regis- tration has been filed in any jurisdiction other than India or; that the trademark is well known to the public at large in India7. Section 11(10) deals with various aspects in relation to the Protection of well-known trademarks. It states that while consid- ering an application for registration of a trademark, and opposition filed in respect thereof, the Registrar shall protect a well- known trademark against the identical or similar trademark, and take into consid- irrespective of its use in India. Un- der the Indian law, initially, the reg- istration5 of a trademark remains valid for ten years and thereafter the same can be renewed after every ten years. Unlike as in many countries, where only use-based applications are al- lowed to be filed, in India applica- tions for registration can be filed ei- ther stating ‘Proposed to be used” or based on the actual date of use. For filing of a proposed-to-use applica- tion, as the term itself indicates, the mark need not have been used on the date of the application, but the and, therefore, must commence ac- tual use of the mark in commerce before such an application matures for registration. 1-12
  • 19. 5 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. eration the bad faith involved either of the applicant or the opponent affecting the rights relating to the trade mark. Howev- er, it is also stated that if a trademark has been registered in good faith disclosing the material information to the Registrar where right to a trademark has been ac- quired through use in good faith before the commencement of the Trade Marks Act, 1999, then the validity of the registra- tion of the trademark or right to the use of that trademark will not be prejudiced on the ground that such mark is identical or similar to a well-known trademark. Sec- tion 11 of the Trade Marks Act provides for facts to be considered while establish- ing a well-known trademark, protection of a well-known trademark and faith. Sev- eral cases have been decided by various High Courts in India in which well-known marks were protected. As at that time the Trade and Merchandise Marks Act 1958 did not provide for any provisions under which these marks could be protected, the protection was conferred in them un- der passing off. In Daimlor Benz vs. HYBO HINDU- STAN8 , injunction was sought by the manufacturers of the Mercedes Benz Car against the defendants who were using the three pointed star in the cir- cle and the word Benz. Injunction was granted against the defendants who were using the mark Benz on under- wear apparel. In the matter of Kamal trading Co. vs. Gillette UK Limited9 in- junction was sought against the de- fendants who were using the mark 7’O Clock on their toothbrushes. This was further reaffirmed by the Bombay High Court, which held that the plaintiff had acquired an extensive reputation in all over the world including India by using the mark 7’ O Clock on razors, shaving creams. The use of an identical mark by the defendant would lead to the cus- tomer being deceived. In Caterpillar Inc.Vs. Jorange and another 10, the defendant had started using the marks CAT and CATERPILLAR on their garments. The Plaintiffs trademark CAT- ERPILLAR or CAT was registered in 175 Countries all over the world. It was also registered in India and the registrations were valid and subsisting. The Court while granting the injunction held that the plain- tiffs have made out a prima facie having regard to the trans-border reputation es- tablished by it undoubtedly with regard to heavy duty vehicles all over the world and in several countries even with regard to garments. The protection of Well-known Trademarks by the New Act is in recog- nition of the more modern concepts of trademark protection. Though the Indian Courts were actively protecting Well- known Trademarks, Statutory protection is a step in the right direction. TRIPS AGREEMENT AND TRADEMARKS Before the advent of the TRIPS Agreement there were no multinational or multilateral agreements, which dealt with the protec- tion of Geographical Indications. There were, of course International Treaties, like Paris Convention, Lisbon Agreement, which aimed at protecting Geographical Indications. However, the protection un- der these Treaties was limited and there were a restricted number of signatory countries. It did not prevent worldwide in- fringement of various Geographical Indi- cations. Art. 22.1 of the TRIPS agreement defines Geographical Indication as Indi- cation which identify a good as originat- 1-12
  • 20. 6 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com ing in the territory of a member or a region or locality in that territory to where a given quality, reputation or other characteristic of the good is essentially attributable to the geographical origin. The difference between Geographical Indication and Trade Mark are that the former indicates the source of the product, meaning the geographical jurisdiction from which the product has originated from and the lat- ter is a sign which is used in the course of trade and it distinguishes goods or servic- es of one enterprise from those of other enterprises. Article 23 provides for addi- tional protection for geographical indica- tion of wines and spirits. This has led to a divide between the countries who are the signatories of the TRIPS Agreement. India and a host of developing countries argue that as their Geographical Indications are agricultural in nature the additional pro- tection provided by Article 23 should be extended to these products as well. On the other side of the fence are countries, like Australia, US and many Latin Ameri- can countries, which oppose the exten- sion of the protection of GIs. India and other developing countries argue that the protection granted by Art. 22 is insufficient in protecting their geographical Indica- tions as the test under this Article is of un- fair competition. Furthermore the burden of proof is on the plaintiff that their GI has been infringed. Article 23 provides a blan- ket protection to wines and spirits and in cases of infringement there is no onus on the plaintiff to prove Unfair Competition or adduce evidence in relation to the same. The distinction between the protection of- fered by Article 22 and Article 23 can be illustrated with the help of an example. If a trader uses the words Darjeeling type tea, or kind, style and imitation on a pack of tea he cannot be held for violating the law as the true origin of the product has been stated on the box. This leads to a case where Geographical Indications can be misappropriated without violating the law. However under the expansive pro- tection afforded by Article 23 there is a blanket ban on using a false Geographi- cal Indication on any wines or spirits even though the true geographical origin might be mentioned on the product. The dispar- ity between the protections offered by the two Articles has led India and a host of other countries to doubt the efficacy of the protection afforded to geographical Indi- cation in relation to non-alcoholic prod- ucts in the International Arena. The new GI Act 1999 that has been enacted to pro- tect effectively various Industrial and Agri- cultural resources existing in India. Some of the examples involved are Basmati Rice, Alfanso mangoes, Nagpur oranges, Kanchipuram Saris, Darjeeling tea, Pash- mina shawls, Agra ka Petha, Bikaner Bhu- jia, Malabar Peppers, Khadi and many more. The Act is also significant because the TRIPS Agreement provides that if the Geographical Indication is not protected in its Country of origin then it will not be protected in the International arena. The Registration of the Geographical Indi- cation confers the right of exclusive use coupled with the right to obtain relief in respect to infringement. Any association of persons, producers, organization or authority established by or under the law can apply for the registration of the geo- graphical Indications and if their applica- tion is successful their Name is entered in the Register as registered Proprietors. For example the Tea Board of India can apply for registration of Darjeeling Tea. A pro- ducer of goods can apply for registration as an authorized user. The registration of an authorized user is valid for a period of 1-12
  • 21. 7 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. 10 years and thereafter it can be renewed for a further period of another ten years. If there is a lapse in renewing the registra- tion it will be removed from the Register. The Registration of Geographical Indica- tions is not compulsory but it affords better legal protection to facilitate an action for infringement. The Act prohibits licensing, transmission, assignment or pledge in re- spect of any Geographical Indication. An ac- tion for infringement as well as passing off can be brought under the act. Infringement includes unfair competition. A varied num- ber of relief’s such as Injunction, Discovery of documents delivery up are available. PROTECTION  UNDER CON- SUMER PROTECTION ACT The consumer protection Act protects the interests of the consumers. The consumer11 means any person who— (i) buys any goods for a considera- tion which has been paid or promised or partly paid and partly promised, or under any system of deferred payment, and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a per- son who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom- ised, or under any system of deferred payment, and includes any beneficiary of such services other than the person who hires or avails of the services for consid- eration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person; for the purposes of the sub-clause (i), “commercial purpose” does not include use by a consumer of goods bought and used by him exclu- sively for the purpose of earning his liveli- hood, by means of self-employment12 . The provision reveals that a person claim- ing himself as a consumer of goods should satisfy that THE GOODS ARE BOUGHT FOR CONSIDERATION - There must be a sale transac- tion between a seller and a buyer; the sale must be of goods; the buying of goods must be for consideration. The terms sale, goods, and consideration have not been defined in the Consumer Protection Act. The mean- ing of the terms ‘sale’, and ‘goods’ is to be construed according to the Sale of Goods Act, and the meaning of the term ‘consid- eration’ is to be construed according to the Indian Contract Act. Any person who uses the goods with the approval of the buyer is a consumer. - When a person buys goods, they may be used by his family members, relatives and friends. Any person who is making actual use of the goods may come across the defects in goods. Thus the law con- strue users of the goods as consumers although they may not be buyers at the same time. The words “....with the approv- al of the buyer” in the definition denotes that the user of the goods should be a rightful user. A purchased a scooter which was in B’s possession from the date of purchase. B was using it and taking it to the seller for repairs and service from time to time. Later on B had a complaint regarding the scooter. He sued the seller. The sell- 1-12
  • 22. 8 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com er pleaded that since B did not buy the scooter, he was not a consumer under the Act. The Delhi State Commission held that B, the complainant was using it with the approval of A, the buyer, and therefore he was consumer under the Act13.Like- wise any person who obtains the goods for resale is not a consumer. The term ‘for resale’ implies that the goods are brought for the purpose of selling them, and the expression 'for commercial purpose’ is in- tended to cover cases other than those of resale of goods. When goods are bought to resell or commercially exploit them, such buyer or user is not a consumer under the Act, except exclusively for the purpose of earning his livelihood and by means of self-employment, then such use would not be termed as use for com- mercial purposes under the Act, and the user is recognised as a consumer. When a person hires services, he may hire it for himself or for any other person. In such cases the beneficiary (or user) of these services is also a consumer. It may be noted that in case of goods, buyer of goods for commercial purpose ceases to be a con- sumer under the Act. On the other hand, a consumer of service for commercial pur- pose remains a consumer under the Act. S applied to Electricity Board for electric- ity connection for a flour mill. There was a delay in releasing the connection. S made a complaint for deficiency in service. He was held a consumer under the Act14. An aggrieved consumer seeks redressal under the Act through the instrumental- ity of complaint. It does not mean that the consumer can complain against his each and every problem. The Act has provided certain grounds on which complaint can be made. Similarly, relief against these complaints can be grant- ed within the set pattern. Under Section 2(1)(c), A Complaint is a statement made in writing to the National Commission, the State Commission or the District Forum by a person compe- tent to file it, containing the allegations in detail, and with a view to obtain relief for the defect in goods or deficiency in services provided under the Act15. The persons who can file a complaint under the Act16: • A consumer, or • Any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force, or • The Central Government or any State Government, • One or more consumers, where there are numerous consumers having the same interest. • The definition of consumer itself in- cludes beneficiary of goods and ser- vices. Where a young child is taken to the hospital by his parents and the child is treated by the doctor, the par- ents of such a minor child can file a complaint under the Act. A complaint must contain any of the following al- legations: • An unfair trade practice or a restric- tive trade practice has been adopted by any trader; A sold a six months old car to B representing it to be a new one. Here B can make a complaint against A for following an unfair trade practice. • The goods bought by him or agreed to be bought by him suffer from one or more defects; A bought a comput- er from B. It was not working properly 1-12
  • 23. 9 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. since day one. A can make a com- plaint against B for supplying him a defective computer. • The services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect. A hired services of an advocate to de- fend himself against his landlord. The advocate did not appear every time the case was scheduled. A can make a complaint against the advocate. • A trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any pack- age containing such goods A bought a sack of cement from B who charged him Rs. 100 over and above the re- serve price of the cement declared by the Government. Here A can make a complaint against B. • Goods which will be hazardous to life and safety when used, are being of- fered for sale to the public in contra- vention of the provisions of any law for the time being in force requiring traders to display information in re- gard to the contents, manner and ef- fect of use of such goods. A bought a tin of disinfectant powder. It had lid which was to be opened in a spe- cific manner. Trader did not inform. A about this. While opening the lid in or- dinary way, some powder flew in the eyes of A which affected his vision. Here A can make a complaint against the trader. A complaint on behalf of the public which consists of unidentifiable consum- ers cannot be filed under the Act. A com- plaint was filed on the basis of a newspa- per report that passengers travelling by flight No. 1C-401 from Calcutta to Delhi on May 13, 1989 were made to stay at the airport and the flight was delayed by 90 minutes causing great inconvenience to the passengers. It was held that such a general complaint cannot be enter- tained. No passenger who boarded that plane came forward or authorised the complainant to make the complaint17 . A complaint by an individual on behalf of general public is not permitted. An unregistered association cannot file a complaint under the Act. The complain- ant was an association formed in the Gulf and was unregistered in India. It was held that since the petitioner was not a voluntary organization registered under any law in force in India, cannot come within clause (d) of section 2(1) of the Act and hence can’t file a complaint 18. A complaint after expiry of limitation period is not permitted. A complaint cannot be filed after the lapse of two years from the date on which the cause of action arise unless the Forum is sat- isfied about the genuineness of the rea- son for not filing complaint within the prescribed time. CONSUMER PROTECTION COUNCILS AND CONSUMERS The Consumer Councils19, are created to advise and assist the consumers in seeking and enforcing their rights. The consumer Protection Councils provides certain rights to the consumers. Right to safety - It is right to be protected against the marketing of goods and services which are hazardous to life and property. The unsafe goods may cause death or serious injury to the user due to defective ingredients, defective design, poor work- manship, or any other reason. At times 1-12
  • 24. 10 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com safety hazards are found due to absence of proper instructions to use the product. Thus it is to be ensured that—Manufac- turers and traders ensure that the goods are safe for the users, in case of hazard- ous goods, they give clear instructions as to mode of use, consumer is informed of the risk involved in improper use of goods, and vital safety information is conveyed to consumers. Manufacturers or distributors who be- come aware of the unforeseen hazards after the goods are supplied must inform the authorities and the public in order to warn consumers about such hazards. Where a product is found such as is like- ly to be hazardous even when properly used, traders should either recall it and modify the same, or replace it with a new product, or adequately compensate for it. Right to information- It is right to be informed about the quality, quantity, potency, purity, standard and price of goods or services, since adequate information is very impor- tant in order to make a right choice. How- ever, consumers do not get adequate comparative information about the qual- ity, quantity, potency, purity, standard and price of different kinds of goods or ser- vices which are available. As a result buy- ing decisions become difficult. Therefore consumers need to be given maximum information about the wide variety of competing goods available in the market. Right to choose - The right to choose can be made meaningful by ensuring access to a variety of goods and services at com- petitive prices. Fair and effective competi- tion must be encouraged so as to provide consumers with the widest range of prod- ucts and services at the lowest cost. Right to represent - It is right to be heard and to be assured that consumer’s interests will receive due consideration at appropriate forums. The Consumer Protection Act, 1986 has well taken care of this right by making available the instrumentality of Redressal Forums. Every consumer has a right to file complaint and be heard in that context. Right to redressal - It is a right to seek redressal against unfair trade practices or restrictive trade practices or unscrupulous exploitation of consumers. When consumers are wronged in a mar- ket place transaction, appropriate and adequate redress must be available. The Act has ensured this right by establish- ing Consumer Forums and recognising restrictive and unfair trade practices as a ground to make a complaint. Right to edu- cation - The right to consumer education is a right which ensures that consumers are informed about the practices prevalent in the market and the remedies available to them. For spreading this education, me- dia, or school curriculum, or cultural activ- ities, etc. may be used as a medium. The Central Council’s object is to ensure these rights of the consumers throughout the country while the State Councils look to ensure these rights to consumers within their territories. CONCLUDING REMARKS The MRTP Act 1969 has been replaced by the competition Act20 to encourage com- petition among the traders for the benefit of the consumers. But there is monopoly still prevailing through group agreement in the market that they will not sell goods below particular price. HENCE BARGAIN- ING BECOMES IMPOSSIBLE. Even the MRP price is bargainable but the con- sumers cannot bargain. Now there is ad- vertisement that the venders will sell the product on MSP (maximum selling price). More so the customers feel that the sell- 1-12
  • 25. 11 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. ers are kind to them. But it is not so. There are enough provisions to protect the con- sumer’s starting with trademarks law, consumer protection law, competition law and other various provisions. But the consumers are still bewildered. The consumers lack bargaining skill, knowledge to recognise the original trademarks, confidence to battle with the traders, delay in decision making in the consumer forums also. Thus the con- sumers have no security, safety against the gullible traders. Thus the consum- ers requires to be protected on the spot through the machinery of CONSUMER WATCH, a body to educate, protect and handle the dispute. The responsibility can be given to any NGO or any government authority in each market as CONSUMER WATCH .This body should be given some authority to resolve the issue on spot. The consumer watch can handle the prob- lems related to various consumer related provisions. If the consumer watch is not in a position to resolve the dispute, then it may be referred to the CONSUMER PO- LICE STATION also. The CONSUMER POLICE STATION can resolve the issue on the spot as the general police station. Then the remaining dispute may be re- ferred to the consumer forum. The rea- son behind such submission is obvious. The trade marks Act provides protection to the proprietor of the trade marks. The consumer has no protection under this Act. The consumer can move to the re- dressal forum under food adulteration or other provisions. Whereas the consumers have to purchase spurious drugs as well as other commodities. At the same time the consumers are incapable of examin- ing the deceptively similar trademarks, ISI mark, Ag mark, certification trade mark etc. Under the consumer protection Act, there is a provision to educate the con- sumer but still it is in the law book. The rights of the consumers are of no use for the educated mass.More so how can the consumer move to the court for his small purchase. The consumer protection Act takes cognisance for the defects in goods and deficiency in services. It has nothing to do with the trade marks. Thus if the goods or services bear defective trade mark, the consumer has no protection on this basis. Therefore by establishment of CONSUMER WATCH, CONSUMER POLICE STATION with adequate author- ity to resolve the dispute on the spot as well as refer the matter to the consumer redressal forum, the consumers can be protected on the spot visibly as well as legally. More so, the trade marks should be declared as ‘descriptive’, at present it is ‘suggestive ’only ,which is just to attract the attention and create confusion in the mind of the customers. The cost price and the margin of profit must be disclosed on the package of the commodities. Unless the trade marks is treated as a respon- sible agent between the trader-manufac- turer and consumers, the consumers will be cheated and looted continuously. The trade marks Act protects the interest of the proprietor/trader/manufacturer, not the innocent consumers. In the global economy where the country is struggling for the FDI and economic development, the consumer’s related laws seems un- friendly. Even the competition law lacks root institutions for the protection of the common consumers. More so the con- sumers have to bear the burden of the advertisement cost of the commodities also. Thus it is a time to educate the con- sumer with all possible mechanism of protection for social justice. 1-12
  • 26. 12 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com 1. S. 2(zb) defines trademarks as a mark capable of represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods ,their packaging and combination of colours. 2. S.2 (m) of the Trade mark Act 1999. 3. S. 2(g) of the trade marks Act 1999. 4. S.2 (zg) of the trade marks Act 1999. 5. S. 6 of the Act which provides main- tenance of register of the trade mark where in the particulars of the mark is recorded. 6. S.11 (6) & (7) of the Act. 7. S. 11(9) of the Act. 8. AIR 94 Del 239. 9. 1998 IPLR 135. 10. 1999 PTC 570. 11. Section 2(d) of the consumer protec- tion Act 1986. 12. Explanation to S.2 (d) of the consumer protection Act 1986. 13. Dinesh Bhagat v. Bajaj Auto Ltd. (1992) III CPJ 272. 14. Shamsher Khan v. Rajasthan State Electricity Board (1993) II CPR 6 Raj. 15. Under Section 2(1) (c) of the Act. 16. Sections 2(b) & 12 of the Act. 17. Consumer Education and Research Society, Ahmedabad v. Indian Airlines Corporation, New Delhi (1992) 1 CPJ 38 NC. 18. Gulf Trivandrum air Fare Forum v. Chairman & Managing Director, Air In- dia 1991 (2) CPR 129. 19. S.6 of the consumer protection Act. 20. The competition Act 2002. 1-12 REFERENCES I acknowledge the contribution of litera- tures of the various authors available in hard bound and on net and provisions of the legislations in trademarks, consumer protection and competition law for the present work. ACKNOWLEDGEMENT ••••••• ••••••••••••••• ••••••••
  • 27. 13 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. HEALTH - A HUMAN RIGHT? Shishir Tiwari 1 and Gitanjali Ghosh 2 1 Assistant Professor, Department of Law, North-Eastern Hill University, Shillong 793022 India 2 Pursuing LL.M. (Human Rights), III rd trimester, National Law School of India University (NLSIU), Bangalore Email : shishirlaw@gmail.com, gitanjalighosh@nls.ac.in ଁୗhe concept of the right to health in international human rights law is quite vague. Although the Constitution of the World Health Organization and a number of interna- tional human rights treaties recognize the right to the ‘highest attainable standard of health’, the phrase ‘right to health’ is not a familiar one. The use of ‘right to health’ can be understood in the light of several international declarations and treaties referring to a right to highest attainable standard of health. Approaching health issues through a rights perspective adds an important dimension to consideration of health status. Against this backdrop, the present paper makes a modest attempt to analyse the hu- man rights based approach to health. Although there is a plethora of international and regional instruments relating to right to health, this paper is limited to studying the prominent ones. Key Words : Health, Human Right, Human Rights Law, Right to Health, World Health Organization (WHO). INTRODUCTION References: 38Pages:17 (Date of Receipt :21-8-2014; Date of Acceptance for Publication : 28-09-2014) 13-29 AbstractAbstract In the context of international human rights, economic, social and cultural rights are generally distinguished from civil and political rights. Although it is often assert- ed that both are equal, in practice eco- nomic, social and cultural rights are not considered as important due to various obstacles including their lack of concep- tual clarity. Such a right that is character- ized by particular vagueness is the inter- national human right to health. Although the Constitution of the World Health Or- ganization and a number of international human rights treaties recognize the right to the ‘highest attainable standard of health’, the phrase ‘right to health’ is not a familiar one. The use of ‘right to health’ can be understood in the light of sever- al international declarations and treaties referring to a right to highest attainable standard of health. Approaching health issues through a rights perspective adds an important dimension to consideration of health status. Against this backdrop, this paper,
  • 28. 14 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com Human beings by virtue of being humans possess certain basic and inalienable rights which are known as human rights. Human rights are inherent in all humans irrespective of their caste, creed, religion, sex and nationality. These rights are es- sential for all the individuals as they are consonant with their freedom and dignity. These rights are also necessary as they create an environment in which people can develop their full potential and lead productive and creative lives in accord- ance with their needs and provide suita- ble conditions for the material and moral uplift of the people. Owing to their im- mense significance to human beings, human rights are also referred to as fundamental rights, basic rights, inher- ent rights, natural rights and birth rights. Human rights are legally guaranteed by human rights law, protecting individu- als and groups against actions that in- terfere with fundamental freedoms and human dignity. They encompass what are known as civil, cultural, economic, political and social rights. Human rights are principally concerned with the re- lationship between the individual and the state. All human rights are univer- sal, indivisible and interdependent and interrelated. The international commu- nity must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.1 The human right to health should be un- derstood with reference to the descrip- tion of health laid down in the Pream- ble to the Constitution of World Health Organization2 and repeated in many subsequent documents. The Constitu- tion of WHO defines health as a “state of complete physical, mental, and social well- being, and not merely the absence of disease or infirmity”.3 This definition illustrates the indivisibility and interdependence of rights as they relate to health. Rights relating to discrimination, autonomy, in- formation, education and participation are an integral and indivisible part of the achievement of the highest attaina- ble standard of health, just as the enjoy- ment of health is inseparable from that of other rights, whether categorized as civil and political, economic, social or cultural. In the International Covenant on Economic, Social and Cultural Rights (ICESCR), the right is set forth only as “the right to the highest attainable standard of physical and mental health,” 4 with obli- gations understood to encompass both the underlying preconditions necessary for health and the provision of medical care. The broad definition of health proposed by WHO, which includes the notion of social well-being, and the more restric- tive definition set out in the ICESCR reflects the very different purposes of 13-29 HUMAN RIGHTS AND RIGHT TO HEALTH - CONCEPTUAL FRAMEWORK firstly, provides conceptual framework of the terms ‘human rights’ and ‘right to health’. Secondly, it establishes linkages between health and human rights. Third- ly, it not only contains an analysis of the international human rights instruments related to health but also comprises, fourthly, of an analysis of governmental obligations for health under different inter- national human rights instruments. Lastly, it evaluates the relevance of human rights based approach to health.
  • 29. 15 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. these two documents. The WHO defini- tion projects a vision of the ideal state of health as an eternal and universal goal to constantly strive towards. The ICESCR definition differentiates the two attributes of health i.e. physical and mental well-being. Elaborating further the scope of the right to health, the then United Nations High Commissioner for Human Rights, Mary Robinson stated. The right to health does not mean the right to be healthy, nor does it mean that poor governments must put in place ex- pensive health services for which they have no resources. But it does require governments and public authorities to put in place policies and action plans which will lead to available and acces- sible health care for all in the shortest possible time.5 The right to the highest attainable stand- ard of health in international human rights law is a claim to a set of social ar- rangements- norms, institutions, laws, an enabling environment that can best secure the enjoyment of this right. The most authoritative interpretation of the right to health is outlined in Article 12 of the ICESCR. In May 2000, the Committee on Economic, Social and Cultural Rights adopted a General Comment 6 on the right to health. The General Comment 7 recognized that the right to health is closely related to and dependent upon the realization of other human rights, in- cluding the right to food, housing, work, education, participation, the enjoyment of the benefits of scientific progress and its applications, life, non- discrimination, equality, the prohibition against torture, privacy, access to information, and the freedoms of association, assembly and movement. The key aspects of the right to health are clarified in the General Comment which are discussed hereafter.8 • The right to health is an inclu- sive right. The Committee interpreted the right to health as an inclusive right extend- ing not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy oc- cupational and environmental condi- tions, and access to health- related ed- ucation and information, including on sexual and reproductive health. • The right to health contains freedoms. The Committee interpreted the right to health as containing freedoms which include the right to be free from non- consensual medical treatment, such as medical experiments and research or forced sterilization, and to be free from torture and other cruel, inhuman or de- grading treatment or punishment. • The right to health contains en- titlements. The Committee interpreted the right to health as containing entitlements which include. • The right to a system of health pro- tection providing equality of op- portunity for everyone to enjoy the 13-29
  • 30. 16 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com highest attainable level of health; • The right to prevention, treatment and control of diseases; • Access to essential medicines; • Maternal, child and reproductive health; • Equal and timely access to basic health services; • Health- related education and in- formation; • Participation of the population in health-related decision-making at the national and community levels. The Committee interprets the right to health, as defined in Article 12.1, as an inclusive right extending not only to timely and appropriate health care but also to the underly- ing determinants of health, such as access to safe and potable water and adequate sanitation, an ade- quate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sex- ual and reproductive health. The General Comment sets out four criteria by which to evaluate the right to health.9 1. Availability Functioning public health and health care facilities, goods and services, as well as programmes, have to be avail- able in sufficient quantity within the State party. The precise nature of the facilities, goods and services will vary depending on numerous factors in- cluding the underlying determinants of health such as safe and potable drinking water and adequate sanita- tion facilities, hospitals, clinics and other health-related buildings, trained medical and professional personnel receiving domestically competitive salaries, and essential drugs. 2. Accessibility Health facilities, goods and services have to be accessible to everyone without discrimination, within the ju- risdiction of the State party. Accessi- bility has four overlapping dimensions viz. non- discrimination, physical ac- cessibility, economic accessibility, and information accessibility. 3. Acceptability All health facilities, goods and ser- vices must be respectful of medical ethics and culturally appropriate, sen- sitive to gender and life-cycle require- ments, as well as being designed to respect confidentiality and improve the health status of those concerned. 4. Quality Health facilities, goods and services must be scientifically and medically ap- propriate and of good quality. The meaning of the right to health can be further clarified by delineating its scope and core content. The scope constitutes the general content of the right to health and the core content consists of those elements that a state has to guarantee under any circumstances, irrespective of its available resources. With regard to the scope, the right to health can be said to embrace elements related to 13-29
  • 31. 17 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. Human rights are interdependent, in- divisible and interrelated. This means that violating the right to health may mar the enjoyment of other human rights and vice versa. The importance given to the “underlying determinants of health” i.e. the factors and conditions which protect and promote the right to health beyond health services, goods and facilities, shows that the right to health is dependent on, and contributes to, the realization of many other human rights. These include the rights to food, to water, to an ad- equate standard of living, to adequate housing, to freedom from discrimina- tion, to privacy, to access to informa- tion, to participation, and the right to benefit from scientific progress and its applications. These linkages between health and human rights may be put in the fol- lowing words: The linkages between health and human rights can be best depicted through the diagram below: [Source: http://www.searo.who.int/entity/human_rights/about/en/ (Last visited on May 29, 2014)]. LINKAGES BETWEEN HEALTH AND HUMAN RIGHTS 13-29 ‘healthcare’, and elements concerning the ‘underlying preconditions for health’ which may include a healthy environ- ment, safe drinking water and adequate sanitation, occupational health, and health-related information. At the same time, it is important to demarcate limits on the right to health and not allow it to include everything that might involve health.10
  • 32. 18 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com • Violations or lack of attention to human rights can have serious health consequences (e.g. harmful tradition- al practices, slavery, torture and inhu- man and degrading treatment, vio- lence against women and children). • Health policies and programmes can promote or violate human rights in their design or implementation (e.g. freedom form discrimination, individ- ual autonomy, rights to participation, privacy and information). • Vulnerability to ill- health can be reduced by taking steps to respect, protect and fulfil human rights (e.g. freedom from discrimination on ac- count of race, sex and gender roles, rights to health, food and nutrition, education, housing). In their book on Health and Human Rights, Jonathan Mann, Sofia Grus- kin, Michael Grodin and George An- nas have set out three ways in which human rights and health can be seen to be connected. The goal of linking health and human rights is to con- tribute to advance human well-be- ing beyond what could be achieved through an isolated health or human rights based approach. There are three linkages between health and human rights which although inter- connected have individual substan- tial practical consequences. These linkages are as follows:11 1. The impact of human rights violations on health Some examples of the impact of vio- lations of human rights on health are obvious; for example, a person who is tortured will experience health problems as a result. Other exam- ples of impacts of human rights vio- lations on health are less obvious. Denial of access to accurate infor- mation about HIV/AIDS is an exam- ple of a human rights violation with serious health implications, as is de- nial of information about contracep- tion and HIV/AIDS prevention meth- ods like condoms. Failure to fulfil or comply with a human rights obliga- tion is called “nonfulfillment”. 2. The impact of health policies, programs, and practices on human rights This connection of health and hu- man rights can take several forms: • Public health policies and pro- grams are shaped with the aim of bettering the health of the popula- tion. However, states and organi- zations may fail in deciding what health issues will receive priority and address issues that dispropor- tionately affect women or minority groups, in violation of the right to non-discrimination. • States may fail to take meas- ures to assure that the right to priva- cy is upheld and that confidentiality is maintained while providing health services. • States are allowed to limit rights in the name of protecting the public’s health from epidemic dis- ease. The state has right to deprive a person with active tuberculosis of their liberty by quarantine. 3. The inter-relationship be- tween enjoyment of rights and conditions that promote health 13-29
  • 33. 19 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. A focus on the underlying conditions that create health and well-being re- veals that many of these conditions are human rights issues. The most profound underlying condition is social and economic status. Lower socio-economic status has been re- peatedly linked to poorer health. Ra- cial and gender discrimination are also underlying conditions which can negatively impact health. INTERNATIONAL HUMAN RIGHTS INSTRUMENTS RELATED TO HEALTH The enjoyment of the highest attain- able standard of health has been recognized as a fundamental right by the international community ever since the Constitution of the World Health Organization (WHO) was adopted in 1946. Many international human rights treaties and declara- tions contain provisions on rights and health and it is these provisions which are collectively referred to as ‘right to health’. Thus, the term ‘right to health’ is used as shorthand to re- fer to the more detailed language contained in international treaties.12 Three aspects of the right to health have been enshrined in the interna- tional instruments on human rights viz. the declaration of the right to health as a basic human right; the prescription of standards aimed at meeting the health needs of specific groups of persons; and the prescrip- tion of ways and means for imple- menting the right to health.13 A number of international and re- gional treaties and declarations use the language of rights in referring to health issues. The relevant para- graphs which cite the right to health are cited hereafter. Preamble to the Constitution of World Health Organisation 14 The enjoyment of the highest attainable standard of health is one of the fun- damental rights of every human being without distinction of race, religion, po- litical belief, economic or social condi- tions. Universal Declaration of Human Rights, 1948 15 The UDHR is merely a declaration and not a treaty but most of its provisions are considered to constitute customary international law. Article 25 of the Dec- laration provides that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, cloth- ing, housing and medical care and nec- essary social services, and the right to security in the event of sickness and disability. International Covenant on Economic, Social and Cultural Rights, 1966 16 Article 12(1) emphasises the States Par- ties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of 13-29
  • 34. 20 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com Convention on the Elimination of All Forms of Racial Discrimina- tion (CERD), 1965 19 Article 5(e)(iv) of the CERD provides that State Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of eve- ryone, without distinction as to race, col- our, or national or ethnic origin, to equal- ity before the law, in the enjoyment of the right to public health, medical care, so- cial security and social services. 13-29 Convention on the Rights of the Child, 1989 21 Article 24 entails that States Parties rec- ognize the right of the child to the enjoy- ment of the highest attainable standard of health and to facilities for the treat- ment of illness and rehabilitation of health. It also provides that States Par- ties shall strive to ensure that no child is deprived of his or her right of access to such health care services. The Alma Ata Declaration on Primary Health Care, 1978 22 This declaration is of profound importance to understand health, its underlying deter- minants and the development of health services all around the world. It builds on human rights principles of respect for the individual, non- discrimination and partic- ipation. The Alma Ata Declaration adopt- ed at the International Conference on Pri- mary Health Care in 1978 used language similar to the other documents: The Conference strongly reaffirms that health, which is a state of complete physi- Article 11(1)(f) provides that States Par- ties shall take all appropriate measures to eliminate discrimination against women Convention on the Elimination of All Forms of Discrimination against Wom- en, 1979 20 physical and mental health. In 2000, the Committee on Economic, Social and Cultural Rights 17 published General Comment No. 14 (2000) 18 which gives an extensive and authoritative interpre- tation of the right to the highest attain- able standard of health contained in Ar- ticle 12 of the International Covenant on Economic, Social and Cultural Rights. It should be noted that ‘highest attain- able standard’ in these documents means a reasonable standard and not an absolute standard. The Constitution of the WHO emphasizes an essential element of right to health i.e. non- dis- crimination on the grounds of race, re- ligion, political belief, economic, or so- cial conditions. Non- discrimination in relation to health is reiterated in the fol- lowing Conventions. in the enjoyment of the right to protection of health and to safety in working condi- tions, including the safeguarding of the function of reproduction. Article 12 provides that all appropriate measures should be taken by State Par- ties to eliminate discrimination against women in the field of health care in order to ensure on a basis of equality of men and women, access to health care ser- vices, including these related to family planning.
  • 35. 21 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990 23 Article 25(1) provides that migrant work- ers shall enjoy treatment not less favoura- ble than that which applies to nationals of the State of employment in respect of re- muneration and other conditions of work, that is to say health which, according to national law and practice, are covered by these terms. Article 28 provides that migrant workers and members of their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equal- ity of treatment with nationals of the State concerned. Standard Minimum Rules for the Treatment of Prisoners, 1955 24 Standard Minimum Rules for the Treat- ment of Prisoners were adopted on 30 August 1955 by the first U.N. Con- gress on the Prevention of Crime and the Treatment of Offenders. Although not legally binding, these Rules provide guidelines for international and domes- tic law for citizens held in prisons and cal, mental and social wellbeing and not merely the absence of disease or infirmity, is a fundamental human right and that the attainment of the highest possible level of health is a most important world-wide so- cial goal whose realization requires the action of many other social and econom- ic sectors in addition to the health sector. 13-29 other forms of custody. Rule 10 provides that all accommoda- tion provided for the use of prisoners and in particular all sleeping accom- modation shall meet all requirements of health. Rule 15 provides that pris- oners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness. Rule 17(1) provides that every prisoner who is not allowed to wear his own cloth- ing shall be provided with an outfit of clothing suitable for the climate and adequate to keep him in good health. Rule 20(1) provides that every prisoner shall be provided by the ad- ministration at the usual hours with food of nutritional value adequate for health. Rule 25(1) provides that the medical officer shall have the care of the physical and mental health of the prisoners and should daily see all sick prisoners. European Social Charter, 1961 25 Article 11 provides the right to protection of health. It provides that with a view to ensuring the effective exercise of the right to protection of health, the Contracting Parties undertake, either directly or in co-operation with public or private organisations, to take appropriate measures designed inter alia: 1. to remove as far as possible the causes of ill-health; 2. to provide advisory and education- al facilities for the promotion of health and the encouragement of individual respon- sibility in matters of health; 3. to prevent as far as possible epi- demic, endemic and other diseases.
  • 36. 22 •• N. J. Comp. Law Vol. 1 (1) 2014, pp. ISSN : 2393 - 9338 www.manishanpp.com African Charter on Human and Peo- ples’ Rights, 1981 26 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, 1988 27 Article 10(1) provides that everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being. Governmental Obligations for Health under International Human Rights Instruments With respect to ICESCR, the obligation of States under it to implement the right to health is a progressive obligation. Article 2 of the Covenant provides that a State is not required immediately and fully to im- plement the right but only to achieve pro- gressively the full realization of the right. The progressive realization of the right to health over a period of time should not be interpreted as depriving States parties’ ob- ligations of all meaningful content. Rather, progressive realization means that States parties have a specific and continuing obligation to move as expeditiously and effectively as possible towards the full re- alization of Article 12.28 In other words, the State parties are required to take steps to achieve the rights. The steps necessary to achieve the full realization of the right to health are listed in Article 12(2) which are as follows: • The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; Article 16(1) provides that every individ- ual shall have the right to enjoy the best attainable state of physical and mental health. 13-29 • The improvement of all aspects of en- vironmental and industrial hygiene; • The prevention, treatment and control of epidemic, endemic, occupational and other diseases; • The creation of conditions which would assure to all medical service and medical attention in the event of sickness. In all countries, resource and other constraints can make it impossible for a government to fulfil all rights imme- diately and completely. The human rights machinery recognizes this and acknowledges that, in practical terms, a commitment to the right to health is going to require more than just passing a law. It will require finan- cial resources, trained personnel, fa- cilities and, more than anything else, a sustainable infrastructure. There- fore, realization of rights is generally understood to be a matter of progres- sive realization of making steady pro- gress towards a goal. 29 The principle of ‘progressive realization’ is fundamental to the achievement of hu- man rights. This is critical for resource- poor countries that are responsible for striving towards human rights goals to the maximum extent possible. It is also of relevance to wealthier countries in that they are responsible for respecting, pro- tecting and fulfilling human rights not only within their own borders, but through their engagement in international assis- tance and cooperation. However, there is a certain core in the right to health which consists of a set of elements that states have to guarantee immediately, irrespective of their availa-
  • 37. 23 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 1 (1) 2014, pp. ble resources. The core content stands in contrast to some elements of the right to health that are to be realized ‘progressive- ly.’ This core content includes those ele- ments without which the right loses its sig- nificance; it refers to those elements that encompass the essence of the right.30 In other words, while the Covenant provides for progressive realization and acknowl- edges the constraints due to the limits of available resources, it also imposes on States parties various obligations which are of immediate effect. For e.g. States parties have immediate obligations such as the guarantee that the right will be ex- ercised without discrimination of any kind and the obligation to take steps towards the full realization of article 12.31 The steps given in Article 12(2) of ICESCR provide a starting point to understand the obligation to respect the right to health. Their generality makes it difficult to deter- mine specific obligations involved. WHO, in their program on Primary Health Care and Health for All by the Year 2000, has elaborated the means that can be used by both economically developed and de- veloping countries to achieve the ‘highest attainable standard’ of health. The Primary Health Care approach is described in the Declaration of Alma-Ata, adopted in 1978 at an international WHO conference. The essential aspects of that approach may be summarized as follows: 32 1. an emphasis on preventive health measures (immunization, family plan- ning) more than on curative measures; 2. the importance of participation of in- dividuals and groups in the planning and implementation of health care; 3. an emphasis on maternal and child health care; 13-29 4. the importance of education concern- ing health problems; 5. high priority to be given in provision of health care to vulnerable and high risk groups, such as women, children, un- derprivileged elements of society; 6. equal access of individuals and fami- lies to health care at a cost the com- munity can afford. With regard to implementation of the right to health, while on one hand, the poor countries are unable to provide an adequate level of health care or to pro- vide the economic development which is necessary for an adequate health sys- tem, on the other hand, the cost of health care has also become a problem in de- veloped countries. Three main obstacles to improving health within states are mis- allocation of resources, inequity in health care, and inefficiency. Nevertheless, all ratifying states have obligations under Ar- ticle 12 of ICESCR regardless of their de- gree of economic development. Article 2(1) of ICESCR provides that each State Party undertakes to take steps for progressive realization of the rights en- shrined in the Covenant ‘to the maximum of its available resources.’ This phrase does not imply that states with very lim- ited resources have no obligations under the Covenant. All countries have some ‘available resources’ although it may be less in comparison with other countries. Hence, under the Covenant all ratifying states are obligated to respect the right to health, regardless of their level of eco- nomic development. The Limburg Principles on the Implemen- tation of the International Covenant on Economic, Social and Cultural Rights

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