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N J C L
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Volume 2, Issue 1, 2015
Editorial Board
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N. J. Comp. Law Vol. 2 (1) 2015, pp.National Journal
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© National Journal on Comparative Law. All...
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N. J. Comp. Law Vol. 2 (1) 2015, pp.National Journal
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Copyright: Submission of a manuscript impl...
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A SOCIO- LEGAL FOCUS ON THE PARADIGM OF AN...
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ment supersedes any person while mak-
ing ...
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pendent and impartial. Till now there has
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Rights enshrines in particular the princi-...
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bribe. The situation appears to be worst
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are not achieved by a single act but
rathe...
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idated Fund of state in the case of High
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constitutional provision does not prescrib...
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Judicial Review and Judicial Activism
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CRITICISMS AGAINST JUDICIAL
INDEPENDENCE
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ing salaries in the sector reflect mag-
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factors as opposed to external ones.
Post...
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Attacks on Justice. Those reports collect...
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While applying judicial discretion in adj...
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2. INDEPENDENCE OF JUDICIARY IN
INDIA: A...
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DAUGHTER’S DEFICIT IN INDIA: A DISCOURSE
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of a city-based export house allegedly
st...
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the second girl child if their first born...
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tal anomalies or haemoglobinopathies
or s...
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able at such centre, laboratory, clinic o...
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the practice of prenatal determination of...
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is hoped that members of the said
Committ...
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In Hemanta Rath vs. Union of India and
Ot...
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broader interpretation to Section
28 of t...
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number of total registered cases of infan...
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aborted compared to only a small per-
cen...
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tration with the authorities .According t...
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son for female feticide and infanticide. ...
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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. 2 (1) 2015, pp.
  • 2. 2 •• N. J. Comp. Law Vol. 2 (1) 2015, 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. 2 (1) 2015, pp. N J C L National Journal of Comparative Law Volume 2, Issue 1, 2015 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 & Research Publications January 2015 This Journal is an academic and peer-reviewed publication (Print ISSN : 2393 - 9338 ) Cite this volume as 2(1)NJCL(2015) and so on.... AnInternationalRefereedJournal
  • 4. 4 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com Volume 2, Issue 1, 2015 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. 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) Academic&ResearchPublications and 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 University of Delhi 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 January 2015
  • 5. 5 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp.National Journal of Comparative Law Volume 2, Issue 1, 2015 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 Governance, Central University of Bihar,House No.16/13, Ward No.-9A,New Area Bisar, Gaya,-823001, Bihar E-mail - pradip@cub.ac.in OR pradiplaw2424@rediffmail.com Mob.09546380976 Dr. Achyutananda Mishra Assistant Professor, Faculty of law, ICFAI Foundation for Higher Education(Deemed University)Hyderabad Email:achyutanandamishra@yahoo.in Members of Editorial Board January 2015
  • 6. 6 •• N. J. Comp. Law Vol. 2 (1) 2015, 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.
  • 7. 7 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp.National Journal of Comparative Law Volume No. 2 Issue No. 1, 2015 C o n t e n t s S. No. Title Page No. 1. 2. 3. 4. 5. 01 17 34 42 54 63 January 2015 A Socio- Legal Focus On The Paradigm Of An Independent Judiciary In India Mr. Rajib Bhattacharyya Daughter’s Deficit In India: A Discourse From Legal Perspective Dr. Pradip Kumar Das Disaster Management in India: Role of Law and Applicability Ms. Poonam Kumari Emerging Contours of Human Rights Dr. Achyutananda Mishra Challange Of Combating The Hazards Of Water Pollution-A Le- gal Perspective Prof. Manik Sinha Assessment Of Anti-Trust Enforcement Of Cartels Dr. Sudhanshu Kumar 6. Caste Mobility And Protective Discrimination In India: An evalu- ation of the Judicial responses and State practices (An Inter-disci- plinary approach) Dr. Atul Sinha 7. 77
  • 8. 8 •• N. J. Comp. Law Vol. 2 (1) 2015, 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.
  • 9. 1 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp. A SOCIO- LEGAL FOCUS ON THE PARADIGM OF AN INDEPENDENT JUDICIARY IN INDIA Mr. Rajib Bhattacharyya Assistant Professor,University Law College, Gauhati University Email : bhattacharyya.rajib@gmail.com Abstract Key Words : Administration of Justice, Judicial System, Judiciary, Independence, Executive, Legislature, Individual Freedom, Due Process, Rule of Law etc. INTRODUCTION AND MEANING OF JUDICIAL INDEPENDENCE “The government may make a law to make judg- es accountable. We are not afraid of that. But it should not tinker with the very constitutional principle of judicial independence” ----- S. H. Kapadia (Hon’ble Former Chief Justice of India) References: 27Pages:11 (Date of Receipt :23-06-2014; Date of Acceptance for Publication : 12-12-2014) ଁୗhe administration of justice is the prime task of any judicial system. Justice which is regarded as the heart and soul of a country must be administered without favor or fear. Hence judiciary should always try to remain as far as possible outside political purview or influence. Judicial Independence simply means that the judiciary-- as an organ of the government, should be free from influence and control of the two other organs i.e. the executive and the legislature. In administering justice and interpreting laws the judges must always be impartial and should act honestly. In the present day world, every democratic country puts a great store on the independence of the judiciary as a guarantee of individual freedom. A well-functioning, efficient and independent judicial system is an essential requirement for a fair, consistent and neutral administration of justice. Consequently, independence of judiciary is an indispensable element of the right to due process, the rule of law and true democratic set up. Therefore, in this paper I would like to focus mainly on the system of Judicial Inde- pendence and its effectiveness in a democratic country and will try to analyse its role very critically considering the present system of governance of our country. In India, the question of independence of the judiciary has been a subject of heated national debate over the last many years. It has exercised the minds of legislators, jurists, politicians and the laymen. Both the supporters and the opponents have cogent arguments in support of their views. This question assumes great im- portance whenever the Supreme Court holds a particular Act or particular Clause of an Act passed by Parliament ultra vires of the Constitution or whenever Govern- 1-16
  • 10. 2 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com ment supersedes any person while mak- ing appointments of judges of the High Courts or the Supreme Court. The sup- porters of absolute independence of the judiciary argue that in the absence of an independent judiciary, democracy can- not succeed. They point out that only an independent judiciary can safeguard the rights of the people as enshrined in the Constitution and thereby ensure the rule of law in the country. On the other hand, the opponents of the theory of the inde- pendence of the judiciary say that under our Constitution, it is not the judiciary but the Parliament which is supreme and sovereign. They feel that it is for the Par- liament to lay down the laws and for the judiciary to interpret them. The judiciary cannot and should not usurp the powers of the Parliament. If the Parliament passes any laws for the economic and social up- liftment of the people and establishment of a socialistic pattern of society, the ju- diciary should not strike down such laws and stand in the way of progress. Other- wise, the people might resort to revolution to bring about a change.1 The framers of the Indian Constitution at the time of framing of our constitution were concerned about the kind of judici- ary our country should have. This concern of the members of the constituent assem- bly was responded by Dr. B.R. Ambedkar in the following words:2 “There can be no difference of opinion in the House that our judiciary must be both independ- ent of the executive and must also be competent in itself. And the question is how these two ob- jects can be secured”. The question that arises at first instance in our minds is that what made the fram- ers of our constitution to be so much concerned about providing the separate entity to the judiciary and making it self- competent.3 The answer to this question lies in the very basic understanding that so as to se- cure the stability and prosperity of the so- ciety, the framers at that time understood that such a society could be created only by guaranteeing the fundamental rights and the independence of the judiciary to guard and enforce those fundamental rights. Also in a country like India, the in- dependence of the judiciary is of utmost importance in upholding the pillars of the democratic system hence ensuring a free society. It is a well-known fact that the in- dependence of the judiciary is the basic requisite for ensuring a free and fair soci- ety under the rule of law. Rule of law that is responsible for good governance of the country can be secured through unbi- ased judiciary.4 The idea of Independence of Judiciary was first propounded by French political philosopher, Montesquieu. He believed in the theory of separation of powers of the three branches of the Government- Leg- islature, Executive and the judiciary. First, it was first implemented by the fathers of the American Constitution who estab- lished an Independent judiciary in their country. Now the people of America are of the opinion that if any kind of fetter is placed on the Independence of judiciary, their rights and liberties might be endan- gered. The scene in U.K. is quite different where the parliament is supreme. Even then in U.K. where the judiciary is neither independent nor supreme, then also the way the judgements are given and func- tions are worked out seems to be inde- 1-16
  • 11. 3 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp. pendent and impartial. Till now there has been no big clash reported between the parliament and the judiciary. One of the differing features of the judiciary in U.K. is that the judiciary is not empowered to declare a law passed by their respective legislatures as unconstitutional. But in the U.S.A. and India the scene is different as the judiciary is vested with the power of judicial review. If today a law is passed by the parliament which is unconstitutional then, the judiciary can strike it down in the U.S.A. and India but not in the U.K. where the judiciary has no power to do so.5 In reality, an independent, impartial and fearless judiciary is a sine qua non (an essential element) for any nation which believes in democracy. Such independ- ent judiciary is necessary for India which has a quasi-federal constitution. The very basic thing that is to be kept in mind is that until the judges are independent and plucky, they cannot perform their duty freely in order to protect the rights and lib- erties of the people. To maintain the faith of people in judiciary, the judges must be away from pulls and pressures.6 The picture of judiciary in India must not be forgotten. India is a democratic coun- try in which the founding principle of de- mocracy is followed, which means the government elected must be ‘by the peo- ple, for the people and of the people’. The Constitution has provided some special power to the Supreme Court in order to safeguard various rights guaranteed to the people of India. For example, that there is violation of Fundamental Right by the state. Now the question arises that whose side will the judiciary take, the State or the victim? Now if the judiciary is independ- ent then it will take the side of the victim, but if the judiciary is under the state con- trol, then justice would be forgotten and the judiciary would be deemed to be on the side of the state. Thus in that case the justice would be forgotten.7 In the last few years the debate over the independence of the judiciary is a key is- sue to be dealt in the country. There are supporters and opponents of the topic and both have given very effective and sound arguments. These supporters and the opponents include eminent lawyers, politicians and jurists and also our very common man.8 In short, those who believe that there should be independent judiciary believe that Independent judiciary is the basic feature of the constitution and the rule of law can only be upheld by a supreme judiciary. While the opponents of this are of the view that Parliament is supreme and the powers of the judiciary must be limited. According to these people’s view the judiciary must not stand in the path of economic and social reform in the coun- try for the establishment of a socialistic society.9 According to the Charter of the United Nations the peoples of the world affirm, inter-alia, their determination to establish conditions under which justice can be maintained to achieve International Co- operation in promoting and encouraging respect for human rights and fundamen- tal freedoms without any discrimination.11 Whereas, Universal Declaration of Human INTERNATIONAL STATUTORY REGULATIONS RELATING TO INDEPENDENCE OF JUDICIARY10 1-16
  • 12. 4 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com Rights enshrines in particular the princi- ples of equality before the law, of the pre- sumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal estab- lished by law.12 International Covenant on Economic and Cultural Rights and on Civil and Po- litical Rights both guarantee the exercise of those rights, and in addition, the Cov- enant on Civil and Political Rights further guarantees the right to be tried without undue delay. The International Covenant on Civil and Political Rights (“ICCPR”) states the fundamental rights that belong to human beings everywhere. Amongst the rights stated are those in the section which contains “Procedural Guarantees in Civil and Criminal Trials”. Article 14.1 says, relevantly:13 “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obliga- tions in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, in- dependent and impartial tribunal established by law”. The seventh United Nations Congress on Prevention of Crime and the Treat- ment of Offenders, by its resolution, called upon the Committee on Crime Prevention and Control to include among its priorities the elaboration of guidelines relating to the independ- ence of judges and the selection, pro- fessional training and the status of judges and the prosecutors. This was endorsed by the General Assembly resolutions in November 1985 laying down the ‘Basic Principles on the In- dependence of Judiciary’.14 Article III, Section 1 of the U.S. Constitu- tion establishes that “the judges, both of the Supreme and Inferior Courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”15 The New Zealand judiciary, like its coun- terparts in other countries, recognises the importance of efficiency and value for money in the operation of the Courts and of providing assurance of this to the com- munity”.16 INTERNATIONAL JUDICIAL SYSTEMS17 According to a new Transparency Inter- national report: Corruption undermines judicial systems worldwide, released on 25/05/07, the majority of people in nearly all Southeast European countries consid- er their judicial and legal systems corrupt. “When courts are corrupted by the greed or po- litical expediency, the scales of justice are tipped, and ordinary people suffer. Judicial corruption means the voice of the innocent goes unheard, while the guilty act with impunity.” In its Glob- al Corruption Report 2007: Corruption in Judicial Systems, Transparency Inter- national distinguishes two categories of judicial corruption: political interference by the legislative or executive branch and bribery. According to a survey conducted between June and September 2006, the group said that the majority of respond- ents in 33 of the 62 countries polled de- scribed their national judiciary and legal system as corrupt. The report also stated that of the 8,263 people who had been in contact with the judicial system re- cently. More than one in ten had paid a 1-16
  • 13. 5 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp. bribe. The situation appears to be worst in Paraguay, where nearly 90% of the re- spondents have described their judiciary and legal system as corrupt. With less than 10% of Danes perceiving their judi- ciary as corrupt, Denmark is the clean- est of the 62 countries. In the SEE region, the percentage of people describing their country’s judicial and legal system as cor- rupt ranges between 54% in Greece and slightly over 80% in Macedonia, which is 4th on the list. About 78% of Croats con- sider their judiciary to be corrupt, plac- ing the country 7th on the list. Bulgaria is 9th , Turkey is 16th and Albania is 26th . Next comes Romania, then Serbia as 29th and Greece is 31st . Within the region, Kosovo is the only territory where fewer than 50% of the respondents described the judiciary and legal system as corrupt.18 In recent years, to clear backlogs in state courts, governments of different political persuasions in the Australian States, have resorted to the appointment of many act- ing judges. Busy legal practitioners and sometimes academics or retired judges agree to offer their services, in effect, part- time. Such appointments have practical advantages. Nobody doubts the integrity of the legal practitioners who have ac- cepted appointment. But they run into se- rious problems of principle. The past Chief Justice of Australia (Sir Gerard Brennan) noted shortly before his retirement that “judicial independence is at risk when fu- ture appointment or security of tenure is within the gift of the Executive”.19 NEED FOR AN INDEPENDENT JUDICIARY20 The basic need for the independence of the judiciary rests upon the following points: • To check the functioning of the organs:21 Judiciary acts as a watchdog by ensuring that all the organs of the state function within their respective areas and according to the provisions of the consti- tution. Judiciary acts as a guardian of the constitution and also aids in securing the doctrine of separation of powers. • Interpreting the provisions of the constitution:22 It was well known to the framers of the constitution that in future the ambiguity will arise with the provi- sions of the constitution so they ensured that the judiciary must be independent and self-competent to interpret the provi- sion of the constitution in such a way to clear the ambiguity but such an interpre- tation must be unbiased i.e. free from any pressure from any organs like executive. If the judiciary is not independent, the oth- er organs may pressurize the judiciary to interpret the provision of the constitution according to them. Judiciary is given the job to interpret the constitution according to the constitutional philosophy and the constitutional norms. • Disputesreferredtothejudiciary:23 It is expected of the Judiciary to deliver ju- dicial justice and not partial or committed justice. By committed justice we mean to say that when a judge emphasizes on a particular aspect while giving justice and not considering all the aspects involved in a particular situation. Similarly judiciary must act in an unbiased manner. COMPOSITION AND COMPO- NENTS OF THE INDE- PENDENCE OF JUDICIARY The independence of judiciary and the protection of its constitutional provisions 1-16
  • 14. 6 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com are not achieved by a single act but rather over a period of time by a continu- ous struggle that takes place within the framework of the ongoing and the dy- namic process. Therefore it may not be possible to lay down all the conditions in advance either in the constitution or otherwise which will ensure and secure perpetual independence of the judiciary. Such conditions will have to be checked and revised from time to time. A few con- ditions are, however, so basic to the in- dependence of the judiciary that without them the judicial independence will not exist. Some of them may be assigned to the collective independence of the Judi- ciary as an institution, while others may be assigned to the independence of the independence of the individual judges.24 The most important aspect in the inde- pendence of the judiciary is its constitu- tional position. Just as the constitution provides the composition and powers of the legislature and, the executive, it should also provide for the judiciary. If the constitution vests the judicial powers with the Judiciary, so much the better. Other- wise the constitution may provide for the composition of the courts and their juris- diction, and for the appointment, the term of office, and the tenure of the judges. The constitution must ensure a constitutional position of dignity to the judiciary. The constitution must also ensure administra- tive independence of the Judiciary, such as supervision and control over the ad- ministrative staff, preparation of its budget and maintenance of the court buildings. It must not prohibit adhoc tribunals and diversion of the cases from the ordinary courts, ensure the natural judge principle, ordain respect from and provide for sep- aration of judge from the civil services, and prohibit diminution of judges’ service conditions. Some of these matters may be entrusted to legislation; however there must be enough assurance in the consti- tution to the effect so that the judiciary is able to command respect in the eyes of the people and is able to attract the ablest persons as the judges.25 INDIAN CONSTITUTIONAL PRO- VISIONS Many provisions are provided in our con- stitution to ensure the independence of the judiciary. The constitutional provisions are discussed below:26 • Security of Tenure:27 The judges of the Supreme Court and High Courts have been given the security of the tenure. Once appointed, they continue to remain in office till they reach the age of retire- ment which is 65 years in the case of judges of Supreme Court (Art. 124(2)) and 62 years in the case of judges of the High Courts (Art. 217(1)). They cannot be removed from the office except by an order of the President and that too on the ground of proven misbehavior and incapacity. A resolution has also to be accepted to that effect by a majority of total membership of each House of Parliament and also by a majority of no less than two third of the members of the house pre- sent and voting. Procedure is so complicated that there has been no case of the removal of a Judge of Supreme Court or High Court under this pro- vision. • Salaries and Allowances:28 The salaries and allowances of the judges is also a factor which makes the judges independent as their salaries and allow- ances are fixed and are not subject to a vote of the legislature. They are charged on the Consolidated Fund of India in case of Supreme Court judges and the Consol- 1-16
  • 15. 7 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp. idated Fund of state in the case of High Court judges. Their emoluments can- not be altered to their disadvantage (Art. 125(2)) except in the event of grave finan- cial emergency. • Art 124(7) Prohibition on practic- ing before any court: 29 No person who has held office as a Judge of the Supreme Court shall plead or act in any court or be- fore any authority within the territory of In- dia. This provision is there to ensure that there are no future allurements for the judgments considering which their jus- tice delivery is compromised. • Powers and Jurisdiction of Su- preme Court: 30 Parliament can only add to the powers and jurisdiction of the Su- preme Court but cannot curtail them. In the civil cases, Parliament may change the pecuniary limit for the appeals to the Supreme Court. Parliament may enhance the appellate jurisdiction of the Supreme Court. It may confer the supplementary powers on the Supreme Court to enable it work more effectively. It may confer pow- er to issue directions, orders or writs for any purpose other than those mentioned in Art. 32. Powers of the Supreme Court cannot be taken away. Making judiciary independent. • No discussion on conduct of Judge in State Legislature / Parliament: 31 Art. 211 provides that there shall be no discussion in the legislature of the state with respect to the conduct of any judge of Supreme Court or of a High Court in the discharge of his duties. A similar provision is made in Art. 121 which lays down that no discussion shall take place in Parlia- ment with respect to the conduct of the judge of Supreme Court or High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the judge. • Power to punish for contempt:32 Both the Supreme Court and the High Court have the power to punish any per- son for their contempt. Art. 129 provides that the Supreme Court shall have the power to punish for contempt of itself. Likewise, Art. 215 lays down that every High Court shall have the power to pun- ish for contempt of itself. • Separation of the Judiciary from the Executive:33 Art. 50 contains one of the Directive Principles of State Policy and lays down that the state shall take steps to separate the judiciary from the execu- tive in the public services of the state. The object behind the Directive Principle is to secure the independence of the judiciary from the executive. Art. 50 says that there shall be a separate judicial service free from executive control. • The highly rigid process of im- peachment:34 Impeachment under Article 124(4) and (5): The same procedure applies to High Court Judges. Clause (4) of article 124 provides that a Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total mem- bership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. The 1-16
  • 16. 8 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com constitutional provision does not prescribe how this investigation is to be carried on. It leaves it to Parliament to settle and lay down by law the detailed procedure ac- cording to which the address may be pre- sented and the charge of misconduct or incapacity against the Judge investigated and proved. In America, the Judges of Su- preme Court hold office for life. They can, however, be removed by impeachment in cases of treason, bribery on other high crimes and misdemeanour. In K. Veeras- wami v. Union of India ((1991) 3 SCC 855: 1991 SCC (Cri) 734.) A five Judges Bench of the Supreme Court held that a Judge of the Supreme Court and High Court can be prosecuted and convicted for crimi- nal misconduct. The word ‘proved’ in this provision indicates that the address can be presented by Parliament only after the alleged charge of misbehaviour or inca- pacity against the Judge has been inves- tigated, substantiated and established by an impartial tribunal. The constitutional provision does not prescribe how this in- vestigation is to be carried on. In accordance with the above provision, Parliament has enacted the necessary law for the purpose. The Judges (Inquiry) Act, 1968 now regulate the procedure for investigation and proof of misbehaviour or incapacity of a Supreme Court judge for presenting an address by the Houses of Parliament to the President for his re- moval. • Transfer of Judges:35 This provision is there in the constitution to immune the judges from unnecessary transfers used by the executives to harass public servants who are honest. • Judges Transfer Case 136 In the case of S P Gupta vs Union of India, 1982 Supreme Court unanimously agreed with the meaning of the word ‘consulta- tion’. It further held that the only ground on which the decision of the govt. can be challenged is that it is based on mala fide and irrelevant consideration. In doing so, it substantially reduced its own power in appointing the judges and gave control to the executive. • Judges Transfer Case 237 This matter was raised again in the case of SC Advocates on Record Association vs Union of India, AIR 1982. In this case, the SC overruled the decision of the S P Gupta case and held that in the matter of appointment of judges of high courts and Supreme Court, the Chief Justice should have the primacy and the appointment of the Chief Justice should be based on sen- iority. It further held that the Chief Justice must consult his two senior most judges and the recommendation must be made only if there is a consensus among them. • Judges Transfer Case 338 A controversy arose again when the Chief Justice recommended the names for ap- pointment without consulting with other judges in 1999. The president sought ad- vice from the Supreme Court (re Presi- dential Reference 1999) and a 9 member bench held that an advice given by the Chief Justice without proper consultation with other judges is not binding on the govt. As of now, due to the decision in Judges 1-16
  • 17. 9 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp. Judicial Review and Judicial Activism • JUDICIALREVIEW41 In many countries with written constitu- tion, there prevails the doctrine of Judi- cial Review. It means that constitution is the Supreme law of the land and any law inconsistent with it is void the courts perform the side of expounding the pro- visions of the constitution and exercise power of declaring any law or administra- tive action which may be inconsistent with the constitution as unconstitutional and hence void this judicial function stems from the feeling that a system based on a written constitution can hardly be effec- tive in practice without an authoritative, independent and impartial arbiter of con- stitutional issues and also that it is nec- essary to restrain governmental organs from exercising powers which may not been sanctioned by the constitution. Ju- dicial Review has two prime functions: (i) Legitimizing governmental action. (ii) To protect the Constitution against any under encroachments by the Govern- ment. So, under the Indian Constitution, it is the Judiciary which is entrusted with the task of keeping organ of the state within the limits of the law and thereby making the rule of law meaningful and effective. The IMPLICATIONS OF INDE- PENDENCE OF JUDICIARY40 Judiciary in India has to act as impartial in order to reduce the disputes between the Governments and the private individuals as well as between the governments inter se. It has also to protect the fundamental rights of the Individuals guaranteed un- der part III of the constitution. The courts in the country have already expanded the scope of the judicial review by bringing in its ambit social, economic and political Justice. Keeping in view this expanding horizon of judicial review, it is the para- mount need of the time that the Judici- ary must be independent from executive pressure or influence. • JUDICIAL ACTIVISM42 The Supreme Court identified Art. 142 of the Constitution as an unlimited source of power, a veritable Kamadhenu, on which it could draw for whatever the Judges felt, were the demands of the justice. In seek- ing the aid of the poor, the illiterate and the disadvantaged sections of the soci- ety, the post 1980 court emigrated upon a path of judicial activism unparalleled in the history of any modern democracy. It became a center of political power. Ac- tivist lawyers and Public Interest groups invoked its jurisdiction. As a result, there was no area of political or social action into which the Supreme Court did not de- liver its verdict. It did with its craftsman- ship, it was able to achieve those goals which even the government was unable to achieve, and did in a year that which government would not have been able to do in a decade it dealt with illegal min- ing, pollution in the Ganges, guidelines for the adoption of Indian children abroad, forced prostitution of girls and devdasis and jogins, the extreme poverty and star- vation in Kalahandi, the eliminate of injuri- Transfer Case 2, the appointment of the judges in Supreme Court and High Courts are fairly free from executive control. This is an important factor that ensure the in- dependence of the judiciary.39 1-16
  • 18. 10 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com CRITICISMS AGAINST JUDICIAL INDEPENDENCE Are judges above the law? Who will judge the judges? How do you make judges more accountable? The difficulty arises from the fact that the Independence of Judiciary is one of the most important pil- lar on which democracy lies. Rightly, the framers of our Constitution had this prin- ciple uppermost in their mind while they were creating the structures of the three most important organs of the state – the legislature, the executive and the Judici- ary. The fear is that any move to create a mechanism to make the judges more ac- countable has the risk of interfering with the judicial independence.43 However, the Indian Constitution is also guided by the principle of check and bal- ance. What it means is that power and responsibility is distributed between the three organs of the state in such a man- ner that each organ of the state keeps a check on the other and stops the other from transgressing its authority or work- ing in a fashion which is opposed to or di- vergent from the purpose for which it has been created. Most of us know about the role played by judiciary when Indira Gan- dhi had imposed the Emergency in the country. In same manner the legislature and the executive have played important role on a number of occasions to per- suade the other organ to do its duty in the rightful manner or prevent it from going the wrong way. It is here that we have a hope of finding some answer if the judici- ary on its own does not to find a remedy to the malady of corruption. However, it is not a very healthy method to root out the problem which the judiciary is facing today as it may lead to host of other prob- lems.44 It can be noticed that, in many a times public criticized the role regarding the functioning of the judiciary. The public criticism includes among others, the de- lay in disposal of cases; unsatisfactory judgments and creeping corruptions in some quarters. The judiciary cannot af- ford to be indifferent to these criticisms. The cost of providing justice is like other calls on the public revenues. All persons and departments who utilize the public revenue are accountable to the public. The judges cannot be an exception to this recognized principle. They are equally ac- countable for their acts and omissions both on the Bench and off the Bench. It is therefore, necessary for the judges, in- dividually and collectively, to ensure that no criticism is leveled against them or against the system.45 In Global Corruption Report 2007- Cor- ruption in Judicial Systems: Transpar- ency International distinguishes two cat- egories of judicial corruption: political interference by the legislative or execu- tive branch and bribery. Transparency International also offers a number of rec- ommendations to improve judicial inde- pendence and combat corruption. These includes judicial appointments made by the independent panels, making judges’ appointments based on merits, and mak- ous drugs and maintenance of approved standards in drugs, employment of chil- dren in match factories, sexual harass- ment of women in the work place and nu- merous other serious concerns in other areas of life in country. 1-16
  • 19. 11 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp. ing salaries in the sector reflect mag- istrates’ experience and performance. Furthermore, judges should receive lim- ited immunity for actions related to judi- cial duties and allegations against them should be rigorously investigated by an independent panel.46 Former Chief Justice of Supreme Court of India, J.S. Verma said regarding the ac- countability of the judges, “There is no point in saying that there is no corrup- tion in the judiciary. No one is going to say it much less accepted. One cannot go on sweeping it under the carpet and not accept it to show.”…… “When moral sanction doesn’t work, then legal sanc- tion is required.”47 Citing the example of Shiv Prasad Sinha, a judge of Allahabad High Court, he said, “There were allegations against him and the finding was that some judg- ments of his appeared to be made for extraneous considerations….” At a meet- ing of the Supreme Court on May 7th , 1997 two resolutions were adopted. One, that the Chief Justice should devise an ‘in- house procedure’ for enforcing account- ability. And two, all judges should declare their assets. The ‘in- house procedure’ is also stuck now because there is no mode of enforcement. Justice Verma said that accountability of judiciary is key to its in- dependence. “Judicial independence means independence from your own infirmities. Latent dangers are more lethal. Unless you have fear- less and independent judges, judicial independ- ence is a myth….. If in a court of 20 there are 2 judges whose integrity for good reason is doubtful, I think it is a very serious threat.” In a recent decision, the Supreme Court has reiterated the high standard of moral and ethical behaviour expected from a judge, and the desirability of a suitable ‘in-house procedure’ to maintain discipline among judges by self-regulation.48 ‘In most present-day Western political systems the authority of governmental institutions is no longer self-evident. The role of modern judiciaries has substan- tially changed over the years; its bearing and weight as a law maker has increased vis-à-vis the administration and the legis- lature due to the growing complexity of society. The original legitimization of ju- dicial action lies in the independent role of judge as an arbiter operating under the rule of law, judging conflicts, supervising and reviewing state actions, this new judi- ciary is activist, with new responsibilities in the field of law making and even policy making. New judiciaries like this, partly performing on the political platform, can no longer be totally shielded by judicial independence from public control and public accountability. If we want the rule of law values to be effective in a new set- ting, new forms of control and account- ability for the judiciary may be warranted. Transparency, openness, a more efficient delivery of justice, and new forms of in- teraction between politics and judiciary are the modern buzzwords in debates on the accountability and legitimacy of non- elected organizations.49 Is the Judiciary actually free?50 Having pondered upon various ways in which our founding fathers and other leg- islators have tried to insulate the judiciary from external executive influence, now the question which remains is Judiciary actu- ally free? Or is it bound by many internal 1-16
  • 20. 12 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com factors as opposed to external ones. Post retirement Executive Offices:51 As we know Judges are offered many post retirement offices like the chairman- ship of National Human Rights Commis- sion and Press Council of India and oth- ers. It would not take rocket science to assume that these are allurements even if some are honorary in nature. Other example is the office of the inter- state river dispute Commission which extends to 3-5 years and is considered as a paid holiday for judges. Judges are humans with weaknesses and if such op- portunities are up for grabs, it won’t be impossible for few to compromise of their morals. Lobbying 52 Every Coin has two sides to it, when we support that Chief Justice of India and Chief Justice of Supreme Court and High Courts respectively should have the final call for selecting judges, it also has a neg- ative side to it, the phenomenon of Lobby- ing of ‘Uncle Judges’ phenomenon. Since now the selection after the 3rd Judge transfer case has been completely internalized, therefore there is high profile lobbying for seat birth in High Courts and Supreme Courts. What is the solution then, in the words of an eminent Professor of Law, Dr. H.C. Hajare, “I think the creation of a judicial com- mission is the only solution to the various contro- versies in the appointment of Judges.”53 JUDICIAL ACCOUNTABILITY AND INDEPENDENCE OF JUDICIARY One aspect of judicial independence which is often overlooked is that judges must also be independent from each other. A proper system of judicial admin- istration will provide for presiding judges and court officials to organise the busi- ness of the members of courts and tribu- nals efficiently, economically and justly as between different members. But in the performance of the central role of deci- sion-making, a member of a court or tri- bunal will not be independent if he or she can be directed by a superior colleague on how to decide a matter. Nor will the judge enjoy independence of mind if he or she can be effectively removed from the performance of the judicial function by the simple expedient of rostering the judge off work. If that were to become common, the court or tribunal in question would not be constituted in accordance with law. The formal procedures for disci- pline and removal from office would then be set at naught.54 In many states, the threat to judicial inde- pendence will not lie in direct confronta- tion between other branches of govern- ment and other powerful interests (on the one hand) and the judiciary (on the other). There are countries of the world where judges and lawyers are intimidated, op- pressed and prevented from performing the duties necessary to their offices and even killed for doing their duty. Those in doubt should read the Annual Reports of the Centre for the Independence of Judges and Lawyers established by the International Commission of Jurists, titled 1-16
  • 21. 13 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp. Attacks on Justice. Those reports collect, and annually review, the case studies which are assembled in Geneva relating to attacks on judges and lawyers. Those attacks can range from brutal intimida- tion and murder to much more subtle and insidious interventions by the state and other powerful interests designed to re- duce the independence of mind and ac- tion of the members of courts and other tribunals.55 ACT WITHIN LIMITS 56 There will be no crisis to the judiciary if the legislative acts within its limit. Litigants, in- cluding various authorities and Govern- ments, should accept the words of the ju- diciary as the final one in case of disputes. At the same time, there have been instanc- es when the judiciary has overstepped its limits to direct the legislature to make a law. If each individual and authority fol- lows a ` line of control’ as regards its func- tioning and acts within the realm of law, crisis can be avoided. SUGGESTIONS 57 • Periodic increase in remuneration of the judges and other judicial staff. • Permanency in office for judges of good behavior, physical and mental capability. • A more standardized and stringent process for judicial impeachment of tainted judges. • Inducting ‘rule of law’ values for trans- parency, effectiveness and openness of judges. • Enhancement of powers of Judi- cial Review and widen the scope of Judicial Activism. Presently, our Parliament is thinking of bringing Judicial Standards and Account- ability bill; so, we need to look into its pro- visions minutely whether this will try to put some restrictions on the judicial inde- pendence or this bill will minimize all the lacunaes existed there in the system of our Judiciary . CONCLUDING REMARKS In a democracy, the role of judiciary is crucial. Judiciary is a faithful keeper of the constitutional assurances. An in- dependent and impartial judiciary can make the legal system vibrant. Our Indi- an judiciary can be regarded as a crea- tive judiciary. Credibility of judicial pro- cess ultimately depends on the manner of doing administration of justice. Jus- tice K. Subba Rao explains the function of the judiciary as thus.58 • It is a balancing wheel of the federa- tion; • It keeps equilibrium between funda- mental rights and social justice; • It forms all forms of authorities within the bounds; • It controls the Administrative Tribu- nals. Justice – Social, economic and politi- cal is clearly laid down in the preamble as the guiding principle of the constitu- tion. Social justice is the main concept on which our constitution is built. Part III and IV of Indian constitution are sig- nificant in the direction of Social Justice and economic development of the citi- zens. Judiciary can promote social justice through its judgments. In other sense, they are under an obligation to do so. 1-16
  • 22. 14 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com While applying judicial discretion in adju- dication, judiciary should be so cautious. And prime importance should be to pro- mote social justice.59 Supreme Court had itself suggested in one of the early and landmark case (Bandhu Mukti Morcha v Union of India 1984) I SCC 161, 234) that:60 There is a great merit in the court pro- ceedings to decide an issue on the ba- sis of strict legal principle and avoiding carefully the influence of purely emo- tional appeal. For that alone gives the decision of the court a direction which is certain and unfaltering, and that espe- cial permanence in legal jurisprudence which makes it a base for the next step forward in the further progress of the law. Indeed both certainty of substance and certainty of direction are indispen- sable requirement in the development of the law and invest it with credibility which commands public confidence in its legitimacy.61 The Court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the executive and the legislature by the constitution. Clear vi- olation of constitutional or statutory pro- vision must be interfered by the apex ju- diciary. If a considered policy decision has been taken which is not in conflict with any law or is not malafide, it will not be in Public Interest to require the court to go into and investigate those areas which are the function of the ex- ecutive. When two or more options or views are possible and after consider- ing them the government takes a policy decision it is then not the function of the court to go into the matter a fresh and in a way, sit in appeal over such a policy decision (Balco v. Union of India (2002) 2 SCC 333) .whatever method adopted by judiciary in adjudication, it must be the procedure known to the judicial ten- ets.62 It is proper to conclude with the note adopted by Justice Ranganatha Misra in the case of Dr. P. Nalla Thampy Thera v. Union of India as follows:63 “We think it proper to conclude our decision by remembering the famous saying of Herry Peter Broughan with certain adaptations”:64 “It was the boast of Augustus that he found Rome of bricks and left it of Marble”65 “But how noble will be the boast of the citizens of free India of today when they shall have it to say that they found law dear and left it cheaper; found it sealed book and left it a liv- ing letter; found it the patrimony of the rich and left it the inheritance of the poor; found it the two edged sword of craft and oppression and left it the staff of honesty and the shield of in- nocence.”66 “It is only in a country of that order that the common man will have his voice heard”.67 REFERENCES 1. Essay on independence of judiciary in India by Barnali Mondal, available on http://www.shareyouressays.com/3085/926- words-essay-on-independence-of-judiciary- in-india browsed on dated 08.06.2014 at about 10.48 A.M 1-16
  • 23. 15 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp. 2. INDEPENDENCE OF JUDICIARY IN INDIA: A CRITICAL ANALYSIS, ATIN KUMAR DAS LL.M 1st YEAR NATIONAL LAW INSTITUTE UNIVERSITY BHO- PAL, available on http://mulnivasiorganis- er.bamcef.org/?p=482 browsed on dated 08.06.2014 at about 10.46 A.M. 3. Ibid. 4. Ibid. 5. 5. Independence of Judiciary by AK- SHAY SRIVASTAVA, available on http:// legaldesire.com/2013/08/12/independ- ence-of-judiciary/ browsed on dated 08.06.2014 at about 10.46 A.M. 6. Ibid. 7. Ibid. 8. Ibid. 9. Supra Note 8 . 10. INDEPENDENCE OF JUDICIARY by JUSTICE VIJENDER JAIN, (Former Chief Justice, Punjab & Haryana High Court, INDIA), available on www.iadllaw. org/.../VIJENDER%20JAIN%20INDE- PENDENCE%20OF... Browsed on dated 08.06.2014 at about 11.08 A.M 11. Ibid. 12. Ibid. 13. Ibid. 14. Supra Note 13 . 15. Ibid. 16. Ibid. 17. Ibid. 18. Supra Note 17 . 19. Ibid. 20. Supra Note 4 . 21. Ibid. 22. Ibid. 23. Ibid. 24. Independence of Judiciary—Indian Experience by Raghvendra Singh Raghuvanshi & Nidhi Vaidya avail- able on http://papers.ssrn.com/sol3/papers. cfm?abstract_id=1558979 browsed on dated 08.06.2014 at about 10.58 A.M. 25. Ibid. 26. Supra Note 23 . 27. Ibid. 28. Ibid. 29. INDEPENDENCE OF JUDICIARY, Es- say and Analysis by PRATIK PATNAIK available on http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2250316 browsed on dated 08.06.2014 at about 10.55 A.M 30. Supra Note 28 . 31. Supra Note 30 . 32. Ibid. 33. Ibid. 34. Supra Note 29 . 35. Supra Note 34 . 36. Ibid. 37. Ibid. 38. Supra Note 37 . 39. Ibid. 40. Supra Note 25 . 41. Ibid. 1-16
  • 24. 16 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com © Journal on Comperative Law. All rights reserved. No portion of material can be reproduced in part or full without the prior permission of the Editor. 42. Supra Note 41 . 43. Supra Note 19 . 44. Ibid. 45. Independence of Judiciary- Some La- tent Dangers, available on http://www. legalserviceindia.com/article/l273-Inde- pendence-of-Judiciary.html browsed on dated 08.06.2014 at about 11.03 A.M 46. Ibid. 47. Supra Note 46 48. Ibid. 49. Ibid. 50. Supra Note 39 . 51. Ibid. 52. Ibid. 53. Ibid. 54. Supra Note 44 . 55. Ibid. 56. Ibid. 57. Ibid. 58. The Role of Judiciary in India, avail- able on http://www.publishyourarticles. net/eng/articles/functions-of-judiciary.html browsed on dated 08.06.2014 at about 11.06 A.M 59. Ibid. 60. Ibid. 61. Supra Note 60. 62. Ibid. 63. Ibid. 64. Ibid. 65. Ibid. 66. Ibid. 67. Ibid. 1-16 ☼☼☼☼☼☼☼○ ○ ○ ○ ○ ○ ○
  • 25. 17 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp. DAUGHTER’S DEFICIT IN INDIA: A DISCOURSE FROM LEGAL PERSPECTIVE DR. PRADIP KUMAR DAS Assistant professor & head(i/c), school of law and governance, central university of bihar, gaya campus, gaya, bihar,& former Assistant Professor-Ii, School of Law, KIIT University, Bhubaneswar, Odisha, former Trade Mark Examiner, Government of India Email: pradip@cub.ac.in or pradiplaw2424@rediffmail.com Abstract Ŵomen of today are Doctors, Engineers, Pilots, Advocates, Scientists, Journalists, Teachers, Administrators, Judges, State Governors, Political leaders, Professors, Am- bassadors, President of India, Chief Ministers, Prime Minister, Speaker of Lok Sabha, and what not. In almost all fields they are performing well. But, their exploitation, mis- eries, sufferings, discriminations, tortures and harassment are still continued. Female foeticide and infanticide are two forms of such social evils which are widening daugh- ter’s deficit in our country. These are two heinous crimes and serious human rights issues which pose a serious threat to our society and these are the main reasons for daughter’s deficit in our country. Female foeticide is perhaps one of the worst forms of violence against women where a women is denied her most basic and fundamental rights. The Government, NGO, and other Social Organization should take steps to en- hance mass awareness regarding ill effect of female feticide and infanticide. Key Words : Female Foeticide, Violence Against Women, That Gender Gap, Dowry System, Governmental Initiatives, The Pre-Natal Diagnostic Tech., Act, 1994 . INTRODUCTION References: 20Pages:12 Incident-I: “Mr. Madan Prasad Singh’s daughter, Arti from Muzaffarpur, Bihar, was married to Sanjiv Kumar Singh in 2005. When Arti be- came pregnant after a year, her in-laws learnt through an ultra sound that she was carrying a baby girl. They pressurised her to go for an abortion but she refused on the ground that it was her first issue. Arti, then, was tortured by her in-laws time and again after she gave birth to a baby girl. She was confined inside a closed room, insulted and thrashed on trifling issues. It was on the night of September, 13, 2013; her in laws first hit her on her head with a blunt weapon and then poured kerosene oil on her body. But, before she could be set ablaze, Arti’s daughter raised alarm and called neighbours who prevented in- laws from doing so. ” Incident-II: “Enraged with his wife consecutively giv- ing birth to two daughters, an employee 17-33 (Date of Receipt :04-07-2014; Date of Acceptance for Publication : 12-01-2015)
  • 26. 18 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com of a city-based export house allegedly strangled her and smothered their two girls, two years and six months old. Their bodies were found in the family’s house in Bhangel, Phase-II, Noida. The husband Amit has gone missing and police has ar- rested his father and two brothers. ” Yes, these two incidents are only tips of the iceberg which have taken place in two parts of our country. Endless in- cidents of like nature are taking place every day across our country very few of which are reported. Mother Terresa, Leymah, Ellen, Tawakul, Smt.Indira Gan- dhi, Benazir Bhutto, Jullia Gillard, Sheikh Haseena, Smt. Prativa Devi Singh Patil, Heena Rabbani Khar, Queen Elizebeth, Rani Laxmibai, VijayaLaxmiPandit, Kiran Bedi, Kalpana Chawla, Sunita William, P.T. Usha, Elizabeth Blackwell, Hillary Clinton, Sonia Gandhi, IndraNooyi, Mira- bai, Queen Victoria, Florence Nightingle, Marie Curie, Helen Keller, Annie Besant, Margaret Thatcher –the list is endless and each and every woman in this list is world famous in her own field. Had they not al- lowed to be born, it would have been an irreparable loss to our society, nation and the entire humanity at large. Women of today are Doctors, Engineers, Pilots, Ad- vocates, Scientists, Journalists, Teachers, Administrators, Judges, State Governors, Political leaders, Professors, Ambassa- dors, President of India, Chief Ministers, Prime Minister, Speaker of Lok Sabha, and what not. In almost all fields they are performing well. But, their exploitation, miseries, sufferings, discriminations, tor- tures and harassment are still continued. Female foeticide and infanticide are two forms of such social evils which are wid- ening daughter’s deficit in our country. These are two heinous crimes and seri- ous human rights issues which pose a se- rious threat to our society and these are the main reasons for daughter’s deficit in our country. These two are social cancer which is eating into the vitals of our so- ciety. These are devastating and calcula- tive social evils which may bring about catastrophe to our entire civilization. Fe- male foeticide is perhaps one of the worst forms of violence against women where a women is denied her most basic and fundamental rights. The girl child has of- ten been a victim to the worst forms of discrimination. Gender bias, deep rooted prejudices and discrimination against the girl child have led to many cases of fe- male foeticide in the country. Strong male preference, religious fanaticism coupled with progress in science and technology has caused this menace. Female infanticide is the deliberate and intentional act of killing a female child within one year of its birth either directly by using poisons- organic and inorganic, chemicals or indirectly by deliberate ne- glect to feed the infant by either one of the parents or other family members or neighbours or by the midwife. In fact, this kind of attitude is rooted in a complex set of social, cultural and economic factors. It is the dowry system, lack of economic independence, social customs and tradi- tions that have relegated the female to a secondary status . Statistics suggests that gender gap between male and female in India is widening day by day in spite of governmental initiatives, legislative en- actments and judicial directions. Accord- ing to a report, between 42 lakh and 1.21 crore female foetuses were selectively aborted in the country in the last three decades and wealthy and educated fami- lies are increasingly going for abortion of 17-33
  • 27. 19 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp. the second girl child if their first born too was a girl. As per 2013 Global Gender Gap Index released by the World Economic Forum, India ranked a lowly 101st of 136 countries, including huge disparity in ac- cess of women to economic, political, educational and healthcare opportunities and their participation in such services . However, it is in this national and social spectacle I have ventured to write this ar- ticle. I have tried to highlight the present Indian scenario with the help of statistical data. I have highlighted relevant legisla- tive provisions and judicial developments in this context. The author has tried to find out the real causes of these evils. Finally, the author has also made some sugges- tions to eradicate these evils. LEGISLATIVE DEVELOPMENTS IN INDIA The cult of female foeticide and infanti- cide was prevalent in India from very ear- lier days. But, the gravity of the offence and number of incidents has increased now due to various factors including ad- vancement of science and technology. When there was no ultra sound machine, people used to kill girl child after their birth. But, now, because of early detection by the ultra sound machine, girl child are killed even in the womb and before their birth. The practice of killing girl child in the womb is adopted by even educated and reasonably well educated and rich fami- lies rather than poor families . However, in order to prevent this barbaric and in- human evil practice of female foeticide, where the dignity of women is ravished even before their birth, government of In- dia enacted the The Pre-Natal Diagnostic Techniques (Regulation and prevention of Misuse), Act, 1994. The Act was amend- ed in 2002. The amendment of the Act and the rule took place keeping in view the emerging technology for selection of sex before and after conception and problems faced in the working of imple- mentation of the Act and directions of the judiciary in various cases. The object of the Act is to provide for the prohibition of sex selection before or after conception, and for regulation of prenatal diagnostic techniques for the purpose of detecting genetic abnormalities or metabolic dis- orders or chromosomal abnormalities or certain congenital malformations or sex- linked disorders and for the prevention of their misuse for sex determination lead- ing to female foeticide . However, these aims and objects are fulfilled through the implementation of various provisions of the Act. Some of these are discussed as below. Section 2(i) of the Act defines “pre-natal diagnostic procedures”. The term means all gynaecological or obstetrical or medi- cal procedures such as ultrasonography, foetoscopy, taking or removing samples of amniotic fluid, chorionicvilli, blood or any other tissue or fluid of a man, or of a woman for being sent to a Genetic Lab- oratory or Genetic Clinic for conducting any type of analysis or pre-natal diagnos- tic tests for selection of sex before or af- ter conception. Section 2(j) defines “pre- natal diagnostic techniques”. It includes all pre-natal diagnostic procedures and pre-natal diagnostic tests. Section 2(k) defines “pre-natal diagnostic test”. The term means ultrasonography or any test or analysis of amniotic fluid, chorionic villi, blood or any tissue or fluid of a preg- nant woman or conceptus conducted to detect genetic or metabolic disorders or chromosomal abnormalities or congeni- 17-33
  • 28. 20 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com tal anomalies or haemoglobinopathies or sex-linked diseases. Section 2(o) de- fines the term “sex selection”. It includes any procedure, technique, test or admin- istration or prescription or provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex. According to the Act, no Genetic Counselling Centre, Ge- netic Laboratory or Genetic Clinic unless registered under this Act, shall conduct or associate with, or help in, conducting activities relating to prenatal diagnostic techniques . The Act also says that no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall employ or cause to be employed or take servic- es of any person, whether on honorary basis or on payment who does not pos- sess qualifications as may be prescribed . The act says that no medical geneticist, gynaecologist, paediatrician, registered medical practitioner or any other person shall conduct or cause to be conducted or aid in conducting by himself or through any other person, any pre-natal diagnos- tic techniques at a place other than a place registered under this Act .As per the Act, no person, including a specialist or a team of specialists in the field of  infertility, shall conduct or cause to be conducted or aid in conducting by himself or by any other person, sex selection on a woman or a man or on both or on any tissue, em- bryo, conceptus, fluid or gametes derived from either or both of them . The Act says, no person shall sell any ultrasound ma- chine or imaging machine or scanner or any other equipment capable of detect- ing sex of foetus to any Genetic Counsel- ling Centre, Genetic Laboratory, Genetic Clinic or any other person not registered under the Act . The Act specifically says , that on and from the commencement of this Act,— (a) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall conduct or cause to be con- ducted in its Centre, Laboratory or Clinic, pre-natal diagnostic techniques including ultrasonography, for the purpose of deter- mining the sex of a foetus; (b) no person shall conduct or cause to be conducted any pre-natal diagnostic techniques in- cluding ultrasonography for the purpose of determining the sex of a foetus; (c) no person shall, by whatever means, cause or allow to be caused selection of sex be- fore or after conception. As per the Act, no person shall open any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including clinic, laboratory or centre having ultra- sound or imaging machine or scanner or any other technology capable of un- dertaking determination of sex of foetus and sex selection, or render services to any of them, after the commencement of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 unless such cen- tre, laboratory or clinic is duly registered under the Act. The Act prohibits advertise- ment relating to pre-natal determination of sex and says, inter alia, that no person, organization, Genetic Counselling Cen- tre, Genetic Laboratory or Genetic Clinic, including clinic, laboratory or centre hav- ing ultrasound machine or imaging ma- chine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection shall is- sue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including internet, regarding fa- cilities of pre-natal determination of sex or sex selection before conception avail- 17-33
  • 29. 21 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp. able at such centre, laboratory, clinic or at any other place . The Act also says that no person or organization including Ge- netic Counselling Centre, Genetic Labora- tory or Genetic Clinic shall issue, publish, distribute, communicate or cause to be issued, published, distributed or commu- nicated any advertisement in any manner regarding pre-natal determination or pre- conception selection of sex by any means whatsoever, scientific or otherwise . Again Section 22(3) of the Act says that any per- son who contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand ru- pees. The Act clearly says that, any medi- cal geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Ge- netic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an hon- orary basis or otherwise, and who contra- venes any of the provisions of this Act or rules made there under shall be punish- able with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand ru- pees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees . The Act also di- rects that the name of the registered med- ical practitioner shall be reported by the Appropriate Authority to the State Medical Council concerned for taking necessary action including suspension of the reg- istration if the charges are framed by the court and till the case is disposed of and on conviction for removal of his name from the register of the Council for a pe- riod of five years for the first offence and permanently for the subsequent offence . JUDICIAL DEVELOPMENTS In Centre for Enquiry into Health and Al- lied Themes(CEHAT) and others vs. Un- ion of India and others Hon’ble Supreme Court held that “it is unfortunate that for one reason or the other the practice of fe- male infanticide still prevails despite the fact that the gentle touch of a daughter and her voice has a charming effect on the parents. One of the reasons may be the marriage problems faced by the par- ents coupled with the dowry demand by the so called educated and /or rich person who are well placed in the soci- ety. The traditional system of female in- fanticide whereby the female baby was done away with after birth by poisoning or letting her choke on husk continues in a different form by taking advantage of advanced medical techniques. Unfortu- nately, developed medical science is mis- used to get rid of a girl child before birth. Knowing fully well that, it is immoral and unethical as well as it may amount to an offence; foetus of a girl child is aborted by qualified and unqualified doctors or compounders. This has affected overall sex ratio in various States where female infanticide is prevailing without any hin- drance”. However, hon’ble court gave the following directions in this case: DIRECTION TO THE CENTRAL GOVERNMENT (a).The Central Government is direct- ed to create public awareness against 17-33
  • 30. 22 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com the practice of prenatal determination of sex and female foeticide through appro- priate releases/programmes in the elec- tronic media. This shall also be done by the Central Supervisory Board (“CSB” for short) as provided under Section 16(iii) of the PNDT Act. (b).The Central Government is directed to implement with all vigour and zeal the PNDT Act and the Rules framed in 1996. Rule 15 provides that the intervening peri- od between two meetings of the Advisory Committees constituted under sub-sec- tion (5) of Section 17 of the PNDT Act to advise the appropriate authority shall not exceed 60 days. It would be seen that this Rule is strictly adhered to. Directions to the Central Supervisory Board (CSB) (a). Meetings of CSB will be held at least once in six months [re proviso to Section 9(1)]. The constitution of CSB is provided under Section 7. It empowers the Cen- tral Government to appoint ten members under Section 7(2)(e) which includes eminent medical practitioners, including eminent social scientists and representa- tives of women welfare organizations. We hope that this power will be exercised so as to include those persons who can gen- uinely spare some time for implementa- tion of the Act. (b). CSB shall review and monitor the im- plementation of the Act. (c). CSB shall issue directions to all States/UT appropriate authorities to fur- nish quarterly returns to CSB giving a re- port on the implementation and working of the Act. These returns should inter alia contain specific information about: (i) survey of bodies specified in Section 3 of the Act; (ii) registration of bodies specified in Sec- tion 3 of the Act; (iii) action taken against non-registered bodies operating in violation of Section 3 of the Act, inclusive of search and seizure of records; (iv) complaints received by the appropri- ate authorities under the Act and action taken pursuant thereto; (v) number and nature of awareness campaigns conducted and results flow- ing therefrom. (d). CSB shall examine the necessity to amend the Act keeping in mind emerging technologies and difficulties encountered in implementation of the Act and to make recommendations to the Central Govern- ment (re Section 16). (e). CSB shall lay down a code of con- duct under Section 16(iv) of the Act to be observed by persons working in bodies specified therein and to ensure its pub- lication so that the public at large can know about it. (f). CSB will require medical profession- al bodies/associations to create aware- ness against the practice of prenatal determination of sex and female foeticide and to ensure implementation of the Act. Directions to State Governments/UT Administrations (a). All State Governments/UT Ad- ministrations are directed to appoint by notification, fully empowered ap- propriate authorities at district and sub-district levels and also Advisory Committees to aid and advise the appropriate authorities in discharge of their functions [re Section 17(5)]. For the Advisory Committee also, it 17-33
  • 31. 23 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp. is hoped that members of the said Committee as provided under Sec- tion 17(6)(d) should be such per- sons who can devote some time to the work assigned to them. (b). All State Governments/UT Ad- ministrations are directed to publish a list of the appropriate authorities in print and electronic media in their respective States/UTs. (c). All State Governments/UT Ad- ministrations are directed to create public awareness against the prac- tice of prenatal determination of sex and female foeticide through adver- tisement in print and electronic me- dia by hoardings and other appro- priate means. (d). All State Governments/UT Administrations are directed to en- sure that all State/UT appropriate authorities furnish quarterly returns to CSB giving a report on the imple- mentation and working of the Act. These returns should inter alia con- tain specific information about: (i) survey of bodies specified in Sec- tion 3 of the Act; (ii) registration of bodies specified in Section 3 of the Act; (iii) action taken against non-regis- tered bodies operating in violation of Section 3 of the Act, inclusive of search and seizure of records; (iv) complaints received by the ap- propriate authorities under the Act and action taken pursuant thereto; (v) number and nature of awareness campaigns conducted and results flowing there from. (a). Appropriate authorities are Directions to appropriate authorities directed to take prompt action against any person or body who issues or causes to be issued any advertisement in violation of Sec- tion 22 of the Act. (b). Appropriate authorities are directed to take prompt action against all bodies specified in Section 3 of the Act as also against persons who are operating without a valid certificate of registration under the Act. (c). All State/UT appropriate Au- thorities are directed to furnish quarterly returns to CSB giving a report on the implementation and working of the Act. These returns should inter alia contain specific information about: (i) survey of bodies specified in Section 3 of the Act; (ii) registration of bodies specified in Section 3 of the Act including bodies using ultrasound machines; (iii) action taken against non-regis- tered bodies operating in violation of Section 3 of the Act, inclusive of search and seizure of records; (iv) complaints received by the ap- propriate authorities under the Act and action taken pursuant thereto; (v) number and nature of aware- ness campaigns conducted and results flowing therefrom. (d). CSB and the State Govern- ments/Union Territories are direct- ed to report to this Court on or be- fore 30-7-2001. List the matter on 6-8-2001 for further directions at the bottom of the list. In CEHAT and Others vs. Union of India Hon’ble court held that there was total slackness by the admin- 17-33
  • 32. 24 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com In Hemanta Rath vs. Union of India and Others 23 Hon’ble court directed that if Appropriate Authorities as con- templated under Section-17 of the PNDT Act and as defined under Sec- tion 2(a) of the said Act has been constituted, such Authority must act strictly in terms of the provisions of the said Act. If, however, such Com- mittee has not been constituted, such Committee must be constitut- ed within a period of six weeks from the date of service of the order upon the Chief Secretary of the State. Af- ter constitution of the said Commit- tee, it must take strict measures to implement the provisions of the said Act. The said Act has been enact- ed to serve public purpose and the Constitutional end as is clear from the object of the Act quoted herein- above. Therefore, the State is under both a statutory and Constitutional obligation to implement the provi- sions of the said Act. In Vinod Soni and Anr. Vs. Union of In- dia , a very interesting argument was advanced in this case by the Peti- tioner that the right to life guaran- 17-33 teed under Article 21 of the Constitu- tion includes right to personal liberty which in turn includes the liberty of choosing the sex of the offspring and to determine the nature of the fam- ily. Therefore, it was contended that the couple is entitled to undertake any such medical procedure which provides for determination or selec- tion of sex. The High Court however exposed the fallacy of this argument by observing that, “right to personal liberty cannot be expanded by any stretch of imagination to liberty to prohibit to coming into existence of a female or male foetus which shall be for the nature to decide.” Hon’ble Court also held that, Article 21, can- not include right to selection of sex, whether preconception or post- conception. It was observed by the High Court that “this Act is factually enacted to further the right of the child to full development as given under Article 21. A child conceived is, therefore, entitled under Article 21 to full development, whatever be the sex of that child.” In Dr. Preetinder Kaur and Others Vs. The State of Punjab and Oth- ers it was contended that the Act contemplated the proceeding to be initiated in particular fashion on a complaint by the appropriate Au- thority, but the said procedure had not been followed. The person who had filed the complaint had never been authorized by the Appropri- ate Authority for taking any action; therefore the entire trial which was in progress before the Magistrate was vitiated. High Court rightly re- jected this contention by giving istration in implementing the PNDT Act. Court also was of the view that those centres which were not reg- istered were required to be pros- ecuted by the authorities under the provisions of the Act and there was no question of issue of warn- ing and to permit them to continue their illegal activities. In CEHAT and Others vs. Union of India Hon’ble court gave the fol- lowing directions:
  • 33. 25 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp. broader interpretation to Section 28 of the Act. It was held that Sec- tion 28 does not narrow down the class of persons who can initiate action. On the other hand, it allows for fairly large body of persons to set the law in motion. Apart from the Appropriate Authority, an Of- ficer authorized by the Central or State Government can also file a complaint. He can also be a per- son authorized by the appropriate Authority itself. As per the Expla- nation contained u/s 28, the ex- pression ‘person’ includes even a social organization. The various categories of persons which are set out u/s 28 give authority to a wide range of persons who can initiate the action under the Act. It was further held that Section 28 must not be read as constituting a narrow class of persons who could initiate the action. It must be giv- en an extensive meaning to pave the way for any socially conscious person to initiate action. It was ac- cordingly held that the complaint filed by the Project Officer was not illegal but it was only irregular and the subsequent discussion and re- cording of minutes by Appropriate Authority constituted valid ratifica- tion. In M/S Malpani Infertility Clinic Pvt. Ltd. and Others vs. Appropriate Au- thority, PNDT Act and others in a Writ Petition filed by M/S Malpani Infertility Clinic Pvt. Ltd. in the High Court of Bombay, the order passed by Appropriate Authority suspend- ing the registration of Petitioner’s Diagnostic Centre under the PNDT REAL SCENARIO The girl child after she is born becomes a victim of gross nutritional and health ne- glect. Consequently, more female children than male children succumb to childhood illness and these impact the child sex ra- tio directly. According to the statistics of National Crime Record Bureau (NCRB) , 17-33 Act was challenged. Main conten- tion raised was that show cause notice, as contemplated u/s 20(1), an opportunity of hearing as con- templated u/s 20(2) and sufficient reasons as required u/s 20(3) of the Act were not given to petition- ers before taking the action of sus- pending registration; hence the or- der was bad as per law. However, considering peculiar facts of the case, High Court rejected this con- tention. It was held that, as appro- priate Authority has, after referring to that criminal prosecution issued the order of suspension, there was sufficient notice to petitioners and there was also sufficient mention of the reasons by the Appropriate Authority in suspension order. It was further held that, “when the reasons are required to be given in writing it is not necessary that there ought to be a detailed discussion.” In the words of High Court, “where there is a conflict of private inter- est, to carry on a particular activity which the Public Authority consid- ered as damaging to the social in- terest, surely the power under the Statute has to be read as an ena- bling power”.
  • 34. 26 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com number of total registered cases of infan- ticide in Indian States was 134 in 2007 and the number became 74 in 2012[Table 1]. The number of infanticides was reduced in 2012 in comparison with 2007. This is really very encouraging. Again, the num- ber of foeticide in Indian States was 92 in 2007. This number was increased to 207 in 2012. Within a gap of 5 years the num- ber was increased to more than double, which is really alarming. However, the real number perhaps is more than what is reflected in the statistics. Because, all cases of infanticides and foeticides are not reported properly due to vari- ous reasons. Arunachal Pradesh, As- sam, Goa, Himachal Pradesh, Jammu and Kashmir, Jharkhand, Manipur, Meghalaya, Mizoram, Nagaland, Oris- sa, Uttarkhand did not report a sin- gle case of infanticide and foeticide in 2012. Highest number of foeticide took place in Madhya Pradesh in 2012 among all Indian States followed by Rajasthan, Haryana and Punjab [Ta- ble No. 1]. 17-33 Cases Registered against children for Infanticide and foeticide in 2007 and in 2012 in India Table No.-1
  • 35. 27 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp. According to a recent survey, in many of India’s least developed states, girls are disappearing not so much from feticide as from infanticide or just plain neglect of the girl child leading to more number of girls dying . This is revealed in latest Annual Health Survey data of the census office, which shows a substantial fall in the sex ratio in the 0-4 years age group in several districts spread across nine states .In fact, in four of the nine States, it is not just specific districts but the en- tire state that has seen a worsening of the 0-4 sex ratio. The Census Office con- ducted an annual health survey in nine states, Uttar Pradesh, Bihar, Rajasthan, Madhya Pradesh, Odisha, Jharkhand, Chattisgarh, Uttarakhand and Assam.A baseline survey conducted in 2007-2009 had been followed up by similar ones in 2010 and 2011. Jharkhand, which had a relatively better sex ratio to begin with, and Rajasthan, which figured at the bot- tom of the pile, have shown the great- est improvement in both sex ratio at ibrth(SRB) and the 0-4 sex ratio. States that started off with high sex ratio in both categories, such as Chhatisgarh and As- sam, had recorded the biggest decline in 0-4 sex ratios along with Bihar and Odi- sha . In Uttar Pradesh, 30 percent of the districts recorded a fall in the 0-4 sex ra- tio. In chattisgarh, the ratio fell in 13 out of 16 districts . Table No.- 2 According to UNICEF, in 1991, the child sex ratio was 947 girls to 1000 boys and ten years later it had fallen to 927 girls to 1000 boys. A decline of 20 girls among 1000 boys within 10 years has raised great concern for everyone .Since 1991, 80 per- cent of districts in India have recorded a declining sex ratio with the State of Pun- jab being the worst. According to a study in 2009 by the global anti-poverty agency, Action Aid and the International Develop- ment Research Centre, the gender gap in some parts of the Punjab had increased to even 300 girls per 1000 boys .States like Maharashtra, Gujarat, Punjab, Himachal Pradesh and Haryana have recorded a more than 50 point decline in the child sex ratio in this period . According to 2006 UNICEF study, in India, 7000 girls a day are aborted only because they are girls . Another study in a Mumbai hospital found that 96 percent of female babies were 17-33
  • 36. 28 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com aborted compared to only a small per- centage of male babies . According to Kamaljeet Gill, Professor of Economics at Punjabi University, “even today, birth of a girl child is viewed as a bad investment for future........The reform needs to begin with the prosperous, ed- ucated class which abort a female child due to their narrow patriarchal view, where sons are considered to be the only hope of old age and even after life. ” Harshinder Kaur, a paediatric doctor, shared her first time experience of discrimination against fe- male infants in Punjab’s rural side as “she (girl child) was thrown in the garbage dump outside the village for dogs that ate her. Her only fault — she was the fourth girl born in a poor family,” . According to Puneet Bedi, a Delhi-based obstetrician and gender-rights activist, “Indian authorities are not serious about curbing the practice of killing female chil- dren and foetuses. It is illegal in India for a doctor to tell parents the gender of their unborn child, or to abort it on the grounds of sex. But rarely do we see one getting prosecuted for this crime” . According to Dr. Bedi “Foeticide was invented, touted, touted and sold by the medical profes- sion, and it operates with the complete consent of all factors of our society. So, you can kill a daughter and get away with this crime. As per Dr. Bedi, any effort to educate the parents of the value of a girl child would not be any help at this point. Because, we do not have time to play around with these chocolates and ice- cream solutions. We have to do some- thing more serious. All agencies must im- mediately join hands and launch a stricter crackdown so that no medical profession- al in this murderous practice can escape. There’s genocide on” . Female infanticide and selective abortion are committed in societies where it is believed that having a girl child is culturally and economical- ly less advantageous than having a boy child. The girl Childs are killed through dif- ferent means e.g. by lacing their feed with pesticides, forcing grains of poppy seed or rice husk down their throats, starving them to death, stuffing their mouths with black salt or urea, suffocating them with a wet towel or bag of sand, rubbing poison on the mother’s breast, so that the baby girl is poisoned as she nurses, leaving the baby to die in the fields, burying the child alive etc . According to an estimate , one out of every three girls does not live to see her 15th birthday, one third of these deaths take place at birth, every sixth girl child’s death is due to gender discrimi- nation, one out of six girls does not live to see their 12th birth day. In most cases, daughters are denied their right to educa- tion, since expenses on their education is not considered to be an investment of higher returns. Girls are breastfed for a shorter period of time, which denies their right to adequate health and nutrition . Girls are also not immunized which led to their poor health and sickness. In fact, all these are deliberate attempt to reduce their lives. Very recently it is reported that port- able Chinese mini-ultrasound machines are sold in the Indian market and being used for illegal pre-natal sex-determina- tion tests. As a result, government efforts against female foeticide appear to have suffered a blow. Lately, Haryana’s food and drug administration (FDA) has al- ready seized 42 such portable ultra-sound machines this month which were being used illegally for pre-natal sex determina- tion tests and that too without due regis- 17-33
  • 37. 29 •• ISSN : 2393 - 9338 www.manishanpp.com N. J. Comp. Law Vol. 2 (1) 2015, pp. tration with the authorities .According to FDA Commissioner, Dr. Rakesh Gupta, these portable Chinese ultrasound ma- chines remain unregistered and hence no one can keep track of them or the tests conducted through them . These are be- ing sold by their importers at a low price of Rs. one to two lakhs against the cost of Rs. 25 to 40 lakhs for the conventional ultra sound machines .Sale of these port- able ultra sound machines illegally to India has posed a serious threat to our country and if it is not checked it may viti- ate the very intention and purpose of our Pre-Conception and Pre-Natal Diagnos- tic Techniques (PCPNDT) Act. Not only that today, one can send a blood sample to clinics abroad with the help of the in- ternet and a credit card- no need for ul- tra sound machine. In internet there are several advertisements which offer result of sex determination in lieu of money. A drop of blood from the expectant moth- ers can reveal foetal gender after seven weeks of pregnancy. Some advertise- ments also give guarantee of 95 percent accuracy or a complete refund of the money spent. This has more aggravated the situation seriously and which is per- haps beyond the control of present legis- lative set up. Reasons behind female feticides and infanticides There are various reasons behind female feticide and infanticide. Family lineage and family name are carried on by male children in many societies. Sons ensure the continuation of the family and wom- en are considered as ‘temporary guests’ in the family of their father and mother. It leads to the parent to be concerned for their future generations and their son pref- erence are increased. They possibly mur- der or abort girl children in order to get a son. However, preference for son is not at all only reason for female feticide and infanticide. There are many other reasons which are connected to each other. Many social practices are there which led to the low estimation of women in the society. Dowry demands, other costs of marriage of girls, difficulties involved in bringing up a girl child, social superstition/prejudice, want of proper education facilities and less job opportunities for women, ab- sence of proper property rights of women after their marriage and easy availability of ultra sound and abortion services by various private clinics are few connected reasons. All these reasons have added to the apathy towards girl child in India. If we want to eradicate these social evils, we have to look at to these root causes. It is seen in village areas that parent become bankrupt for payment of dowry in their daughters marriage. Dowry payment in- cludes cash, gold, silver and expensive consumer goods like TV, refrigerator, washing machine, motorbike, car, and what not. Some consider that the birth of a daughter is double loss. The daughter will cost money to bring up and the dow- ry and wedding ceremony also will drain money of the family. Moreover, after mar- riage, daughter will leave the father’s fam- ily for husband’s family. Sons will bring wealth into the family through dowry, whereas daughters mean expenditure and wealth depletion in the family. Parent thinks that there is no security in their old age if they do not have son. Family planning has become another rea- 17-33
  • 38. 30 •• N. J. Comp. Law Vol. 2 (1) 2015, pp. ISSN : 2393 - 9338 www.manishanpp.com son for female feticide and infanticide. To- day, most of the people want small family with one or two children. As the number of children is very less, so, they expect to have at least one male child. This also prompts female feticide in some cases. Again, unwanted daughters also ran the risk of severe ill treatment at their homes causing them emotional and mental trauma. Their mothers are also tortured, harassed, beaten up, and even in many cases killed by the husband, in-laws and other family members of the husband. Their only offence is that they have given birth to girl child. Status of women in the society is increased when they give birth to male child. On the other hand, their sta- tus is reduced in the society when they give birth to girl child. Sometimes, moth- ers are pressurized and compelled to kill their daughters because girls are an eco- nomic burden to the family. Mothers, gen- erally, do these under immense pressure, coercion and fear. Unequal and meager remuneration for women in various works is another rea- son for apathy towards girl child. For the same work females are paid less remu- neration. Generally, women enter in the domestic non-paid services which a pa- triarchal society gives little or no value at all, hence they are considered as liability rather than assets. Marginalization of women in agriculture is another reason for increased apathy to- wards women. In many parts of our coun- try, women used to work in the agricultur- al field. But, at present, modernization of agriculture and immergence of advanced technologies in the agricultural field have reduced the importance of women in the same field. This marginalization of women in Indian agriculture has led to increase in violence against women. Misuse of technology and the illegal tests like Amniocentesis and ultrasonogra- phy have also aggravated the situation of female feticide in India. Failure to im- plement PNDT Act in some parts of the country has also added fuel to the flame to this problem. CONCLUDING REMARKS AND SUGGESTIONS According to Rashmi Singh, Director, National Mission for Empowerment of Women, MWCD, sex selective abortions were earlier considered an urban phe- nomenon. However, with easy access to technology these days the problem has become much more widespread and we are witnessing skewed sex ratio even in rural areas. It is unfortunate that in this case, the technology is not being used for the betterment of the society, but for de- stroying the foetus in a woman’s womb. This skewed sex ratio is in turn leading to increased violence against women in the society . Female feticide and infanticide are not any isolated social evils in the society. Many connected reasons are responsible for this. First of all, dowry system should be controlled and stopped in our society which is directly connected to these evil practices. For, Dowry Prohibition Act, 1961 should be properly implemented and stringent provisions should be incorporat- ed in the existing Act to stop this practice. The Hindu utopian idea and belief that – a man cannot attain redemption unless a 17-33

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