The Divya Pharmacy Judgment:
An Analysis in the Backdrop of the CBD and the Nagoya Protocol

(By Dr. Raju Narayana Swamy, IAS)

ABSTRACT

The access to biological resources located within India is governed by the Biological Diversity Act, its Rules and Regulations, that were enacted in furtherance of the Convention on Biological Diversity (CBD) and the Nagoya Protocol. One important aspect under them is fair and equitable ‘benefit-sharing’. Under this, certain users of biological resources are required to share certain parts of the benefits accruing to them from such use with the local communities that preserve those resources and impart their traditional knowledge relating to those resources. This article argues that the current benefit-sharing regime in India is problematic on various fronts. A recent judicial pronouncement has further aggravated those concerns. Luckily, the CBD/Nagoya Protocol do not envision a singular model for benefit-sharing leave that for the member countries to decide. Therefore, this article proposes an alternative two-step ad-valorem royalty model that should be explored which addresses various problems prevalent in the current regime. The specifics of the same can be worked out, but the focus of this article is to present the problems prevalent in the system and initiate a discussion towards rebranding India’s benefit-sharing regime towards more certainty, transparency, and fairness, towards which the proposed model can be a concrete step.

Table of Contents

I.    INTRODUCTION

II.   INTERNATIONAL FRAMEWORK ON ‘ACCESS AND BENEFIT SHARING’

III.  LEGAL FRAMEWORK OF BENEFIT-SHARING IN INDIA

A.  THE  REGULATIONS  AND  THE  EMPOWERMENT  OF  SBBS  QUA BENEFIT-SHARING

IV.  PROBLEMS IN THE CURRENT ABS REGIME – BUREAUCRATIZATION, DELAYS, ETC.

A.   FIRSTLY, THERE IS NO SAY OF THE USERS IN DETERMINATION OF ABS TERMS

B.   SECONDLY, LONG DELAYS IN THE ABS PROCEDURE

C.  THIRDLY, THE MANNER OF CALCULATION OF ABS AMOUNT IS PROBLEMATIC

V.  DIVYA PHARMACY V. UNION OF INDIA - JUDICIAL MISINTERPRETATION AND ITS
RAMIFICATIONS                                                    

  A. JUDICIAL MISINTERPRETATION                     

  B.  RAMIFICATIONS

VI.  AN ALTERNATIVE MODEL FOR BENEFIT-SHARING PAYMENTS

A.   A TWO-STEP PROCESS FOR DISCHARGING ABS OBLIGATION

1.   ADDRESSING THE CONCERNS OF THE PRESENT REGIME

B.   ABS AS AN AD VALOREM ROYALTY/TAXATION

VII.CONCLUSION

I. INTRODUCTION

If conservation of natural resources goes wrong, nothing else will go right.

                                                                                      -- M.S.Swaminathan

Both, internationally as well as domestically, the above statement is acknowledged in various forms. Furthermore, on both the levels, specific legal frameworks are in place to ensure the conservation of natural resources and their sustainable use. One of the ways in which the law seeks to achieve the same is by levying the obligations upon certain users of the genetic/biological resources to share fair and equitable benefits they reap by utilising those resources with the local communities that preserve those resources. This benefit-sharing framework, internationally formulated for the first time around 1992-93, has undergone changes/additions/improvements from time to time, both internationally and domestically. In fact, recently, the United Nations Convention on Biological Diversity (‘CBD’) Secretariat has released its first official draft on a new Global Biodiversity Framework to align actions across the global through 2030 for the preservation and protection of the nature and its essential services to people. One (out of four) goal of the draft framework is to ensure that the benefits from the utilisation of genetic resources are shared fairly and equitably, with a substantial increase in both monetary and non-monetary benefits shared, including for the conservation and sustainable use of biodiversity.

In India, the benefit-sharing framework is well-defined. However, there are various problems that exist in the present regime. Furthermore, certain recent legal development has further added to the existing concerns. Therefore, this article seeks to explore the benefit-sharing framework in India, highlight the existing problems, and then propose an alternative model that can be considered in place of the current model. For that, this article has been divided into six parts subsequent to the ‘Introduction’.

In Part II, this article lays down the international backdrop against which India’s benefit-sharing regime was introduced. Thereafter, in Part III, it discusses the broad legal framework and the peculiar provisions in the Indian law regarding benefit-sharing. Part III ends on the argument that certain aspects of benefit-sharing in India, as introduced by a subordinate legislation, do not have a legal validity under the parent statute. Then in Part IV,
the article discusses how a recent judicial pronouncement has in fact, endorsed the said erroneous practice vis-à-vis benefit-sharing. Thereafter, in Part V, it highlights some other problems that exist in the current benefit-sharing regime that have been aggravated by the said judicial pronouncement. Part V ends on a note regarding the need to introduce an alternative model in the benefit-sharing regime in India. Then, in Part VI, it proposes two prongs of the alternative model and discusses how they respectively address the issues that exist in the current benefit-sharing regime. In the concluding Part VII, it ties the discussion together on the future course of action that can be taken vis-à-vis the proposed model.

II. INTERNATIONAL FRAMEWORK ON ‘BENEFIT-SHARING’

The CBD, signed at Rio de Janeiro in 1992-93, with 196 party countries today, is so far the most accepted international arrangement for conservation and sustainable utilization of biological resources (‘bio-resources’) and sharing of the benefits arising out of such use. India became a party to the CBD on 19 May 1994. It then enacted the Biological Diversity Act 2002 (‘Act’) and the Biological Diversity Rules 2004 (‘Rules’). The Act has adopted the three objectives of the CBD verbatim, i.e.,conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits arising out of the use of bio-resources, knowledge.

The third objective of the CBD, i.e., fair and equitable sharing of benefits (‘benefit-sharing’) got further attention both, internationally and domestically. At the 10th Conference of Parties of CBD, a supplementary agreement to the CBD, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (the ‘Nagoya Protocol’) was signed (with effect from 12 October 2014). The Nagoya Protocol calls for the state parties to, inter alia, make provisions to ensure that the users of the genetic resources, share the benefits that they reap from such use, with the local communities who conserve such resources. Such benefits can be monetary or non-monetary, but they have to be on mutually agreed terms with the local communities. India ratified the Nagoya Protocol in 2012. Consequently, the Government of India, through the National Biodiversity Authority (created under the Act) came up with the Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations 2014 (‘Regulations’).

Thus, the Act, the Rules and the Regulations together constitute the benefit-sharing regime in India. The next part shall explain the legal framework of benefit-sharing as envisaged by the Act and later by the Regulations. A correct understanding of the Act is important,inter alia, to appreciate an argument made later in this article on how the Regulations deviate from the content of its parent Act, and a judicial misinterpretation in that regard.

III. LEGAL FRAMEWORK OF BENEFIT-SHARING IN INDIA

The Biological Diversity Act 2002 prescribes the procedures to be followed by the users to access the bio-resources located within the Indian territory. However, the law categorically prescribes different procedures for such access for non-Indian and Indian users. The non-Indian users are required to get an approval from the National Biodiversity Authority (‘NBA’), a central regulatory body created under the Act, before accessing the bio-resources for any purpose. However, the Indian users do not require such approval. They just need to give a ‘prior intimation’ to their respective State Biodiversity Boards (‘SBBs), state level statutory authorities created under the Act, that too, only when the purpose of access is commercial utilisation, bio-utilisation or bio-survey.

The Act then provides a separate process of approval from the NBA for the non-Indian users. They are required to apply to the NBA before accessing the bio-resources and the NBA then processes and approves those application. In approving the applications, the NBA is required to put certain terms and conditions on the use of the bio-resources that would ensure that the user equitably shares the benefits arising out of such use. These terms have to be as per mutual agreement between the users, the local bodies, and benefit claimers.

Pertinently, this provision, under which the NBA is required to put benefit sharing as a condition on the users’ access, is there only for non-Indian users and not for Indian users. Since Indian users are not required to get an approval from the NBA/SBB, such absence is well-warranted. However, despite such clear-cut differentiation in the law, various SBBs (on the footsteps of the NBA) have been, over the years, putting benefit-sharing obligations upon the Indian users. They argue that they are legally empowered to demand benefit-sharing from the Indian users. In fact, a 2018 judgment by the Uttarakhand High Court (as this article shall discuss later) has accepted their stand.

But before the judiciary, the executive has endorsed this erroneous position of law by empowering the SBBs to demand benefit-sharing through the Regulations, as discussed in the next sub-part.

A. THE REGULATIONS AND THE EMPOWERMENT OF SBBS QUA BENEFIT-SHARING

Between 2012 and 2013, the Madhya Pradesh SBB (‘MP SBB’) (that has the largest share of cases on benefit-sharing issue) issued notices to various Indian companies using bio-resources to share with the MP SBB 2% of their gross revenue annually. Around thirteen of these companies moved the National Green Tribunal Central Zone Bench (‘NGT (CZ)’) arguing that the SBB was not empowered to demand benefit-sharing from Indians. After a series of similar litigations (mostly resulting in favour of the MP SBB), the NGT (CZ) directed the Government of India to come up with standardized guidelines for ABS from Indian users. In response to this and in furtherance of the Nagoya Protocol (as discussed earlier), the NBA came up with the 2014 Regulations.

Under the Regulations, both, non-Indian as well as Indian users are required to apply to the NBA and SBBs respectively for accessing bio-resources for commercial utilisation, bio-utilisation/bio-survey for commercial utilization. On being satisfied with the applications, the NBA/SBB (as the case may be) would enter into Access and Benefit Sharing Agreements (‘ABS Agreements’) with the users, and thereby approve the applications. Under the ABS agreements, the users are liable to pay to the NBA/SBB (as the case may be), a certain percentage (0.1% to 0.5%) of their annual gross ex-factory sale minus government taxes as benefit-sharing amount.

So, in essence, the above provisions in the Regulations have empowered the SBBs with twin powers regarding the access and usage of bio-resources by Indians. The first is the grant of ‘approvals’ to the Indian users to access the resources (through ABS agreements), and the second is the power to demand benefit-sharing money from them (as part of the ABS agreements). The Act does not provide either of these powers to the SBBs, as discussed. Nevertheless, in practice, the SBBs vehemently exercise these powers by virtue of the Regulations. Furthermore, in 2018, the Uttarakhand High Court, in a landmark ruling, held upheld the power of the SBBs to put benefit-sharing obligations upon Indian users, and has raised further concerns, as the next part discusses.

IV. DIVYA PHARMACY v. UNION OF INDIA - JUDICIAL MISINTERPRETATION AND ITS RAMIFICATIONS

The authority of NBA in demanding benefit-sharing from non-Indian users has not been questioned so far. However, similar authority of the SBBs has been questioned on various occasions, more so, since the notification of the Regulations. Finally, in 2018, the Uttarakhand High Court (‘Court’) settled the jurisprudence on this issue in Divya Pharmacy v. Union of India (‘Divya Pharmacy’).

In 2016, the Uttarakhand SBB had issued a notice to Divya Pharmacy (a manufacturer of Ayurvedic medicines and nutraceutical products in Haridwar) to share 2% of its revenue, annually to the SBB as fair and equitable benefit-sharing amount. Divya Pharmacy moved the Court against such notice. It relied upon the definition of ‘fair and equitable benefit sharing’ under Section 2(g) of the Act that defines it as sharing of benefits as determined by the National Biodiversity Authority, and not by State Biodiversity Boards. Further, under Section 21, the NBA, while granting approval to the non-Indian users, shall ensure that the terms on which such approval is granted, secures equitable benefit sharing from use of the bio-resources. Based on these, Divya Pharmacy argued that under the Act, only the NBA, and not the SBBs, is empowered to levy benefit sharing obligations, and since NBA approval is required only for non-Indian users, Indian users are free from benefit sharing obligations. All they need to do is give prior intimation to the SBB.

The Union of India argued that the Indian, non-Indian user differentiation in the Act is only to determine the authority they need to approach, and not regarding benefit-sharing obligations. It further argued that if such a differentiation is maintained, it would defeat the objective of the Act and the international conventions that India is a signatory to. Further, it relied upon Section 7 r/w Section 23(b) that suggest that the SBB is not a mere bystander that is only required to accept prior intimations by the Indian users. It also has the power to ‘regulate by granting of approvals or otherwise’ requests for commercial utilization/bio-survey/bio-utilization. Further, the SBB can restrict any activity if it opines that such activity is detrimental to equitable benefit-sharing from that activity.

The Court observed that even though a literal interpretation of the Act does not put a benefit-sharing obligation upon non-Indian users, the law has to be interpreted in light of its purpose. And since the Act was enacted in furtherance of the CBD/Nagoya Protocol, it has to be interpreted in that light. Since, CBD/Nagoya Protocol do not differentiate between domestic and foreign entities in putting benefit sharing obligations, the legislature would not have intended to make such differentiation in the Act. Therefore, it agreed with the Union to hold that SBBs also have the power to levy benefit-sharing obligations on non-Indians and the NBA is empowered to frame guidelines in that regard.

This judgment had received mixed response from different sections. While some saw it as a landmark judgment that has clarified the law on ABS by SBBs, and as a concrete step that would further the objectives of CBD and Nagoya Protocol, others feared that it would give impetus to a new order of bureaucrats to secure their own turfs as the benefits anyway do not actually reach the local communities. The author argues that the court’s decision is a judicial misinterpretation of the Act and that a purposive interpretation was not warranted in this case. The next sub-section clarifies this argument.

A. JUDICIAL MISINTERPRETATION

The Court had acknowledged that a literal interpretation of the Act does not put benefit-sharing obligations upon Indian users (even though the Union argued that even the provisions put benefit-sharing obligations upon Indians). However, it went past the literal interpretation to a purposive interpretation in light of India’s international obligations.

The author argues that the Court was incorrect in taking a purposive interpretation here when the statute clearly differentiates between Indian and non-Indian users vis-à-vis
benefit-sharing obligation, as discussed. In India, the courts are not supposed to necessarily read a law in light of India’s international obligations. As discussed in NALSA v. Union of India, if the legislature makes a law that is in conflict with international law, Indian courts are bound to give effect to the domestic law, rather than the international law. But, if there is a void in the domestic legislation and a contrary legislation is absent, the courts can give effect to international laws. Pertinently, in Vishaka v. State of Rajasthan, when there was a void in the Indian law on prevention of sexual harassment and there was no contrary law present, the court read the provisions of the CEDAW Convention into the domestic law. Furthermore, in Novartis v. Union of India, the court denied to test whether Section 3(d) of the Patents Act 1970 was in compliance with the TRIPS Agreement or not.

Therefore, when the Act is loud and clear in not putting benefit-sharing obligations upon Indian users, the Court should have interpreted it literally and not purposively. The Act envisages different procedures and rules for Indian and non-Indian users regarding benefit-sharing, and wherever required, they are put on equal footing.So, if the legislature intended to put benefit sharing obligation upon Indian users as well, it could have very well done that in the relevant provisions.

B. RAMIFICATIONS

This judgment gave judicial acceptance to the Regulations that empowered the SBBs to levy benefit-sharing obligations upon Indian users. This judgment had been eyed by various Indian entities that had not registered themselves with the SBBs. Post this judgment, all those entities would be required to register with the respective SBBs. Furthermore, the SBBs in all states that were not very proactive in demanding ABS would feel emboldened with this judgment. A large number of businesses, small businesses in particular, face unjustified legal threats from the SBBs. In one case, forest officers from the biodiversity board apparently raided the premises of a company, despite the fact that the Act does not warrant such even if there is a non-compliance with the law.

Divya Pharmacy judgment is not up for an appellate decision. Therefore, the bottom line is that the system of levying benefit-sharing upon Indian users continues, in fact, with much more authority. Nevertheless, for the reasons discussed above, this position of law taken in Divya Pharmacy is questionable and this issue may reopen for further discussion in some future case where the court may/may not agree with Divya Pharmacy. There may even be a legislative clarification as well. Whatever course of action the legal issue of benefit-sharing obligation takes, there are further reasons to argue that the current benefit-sharing regime in India (for both, Indian and non-Indian users) is problematic on various fronts. And now that even the SBBs are formally empowered to levy benefit-sharing, it would further multiply the problems already existing. Therefore, the author proposes a different model of benefit-sharing altogether, which is more transparent, certain, and fairer, and also complies with the objectives of benefit-sharing obligations. But before that, it is important to understand some of the major problems that exist in the current benefit-sharing regime, that solicit for an alternative approach/model.

V. PROBLEMS IN THE CURRENT ABS REGIME – BUREAUCRATIZATION, DELAYS, ETC.

The benefit-sharing responsibility casted on the users of bio-resources (particularly, commercial users) is a result of a global push by conservationists, rights activists, governments, etc. to ensure that parts of the benefits yielding to the users from bio-resources go back to the communities who play a significant role in housing/developing/conserving those resources for a long time. This responsibility is further to acknowledge that the users, in utilizing the bio-resources greatly rely upon and benefit from the ‘traditional knowledge’ of the local communities regarding those bio-resources.

However, the Regulations, enacted supposedly to further the objectives of CBD and Nagoya Protocol, some scholars argue, reflect that the Government of India sees ABS as a ‘large-scale financing mechanism’ that would generate funds to be used for conservation and poverty reduction. As per the Regulations, 95% of the money received under ABS has to be given directly to the local communities (if identifiable) or to support the conservation of bio-resources and the livelihood of people in that region. But, scholars argue that there is no information on how the ABS money is ultimately shared with the local communities. This raises suspicion that the SBB bureaucrats are using the ABS system to extract money from the users just to secure their own turfs. Similarly, little documentary evidence prove that the ABS money goes towards conservation of bio-resources and livelihood of the communities. These raise questions about the actual performance of the Government on its promises under the Act/CBD/Nagoya Protocol. However, further exploration on the ‘actual performance’ of the Government is not the primary focus of this article. Nevertheless, under the current framework, the bio-resources and the traditional knowledge of the communities are now being controlled by government bureaucrats. More so, the NBA (again, a government body) has been made the relevant authority to determine what shall be ‘equitable’ for benefit sharing in each case, adding another level of bureaucratic interface. This excessive control/involvement of the Government authorities in the entire process is a major problem that needs to be fixed. Some of the aspects of the current benefit-sharing regime in which this control is reflected are discussed hereinafter.

A. FIRSTLY, DETERMINATION OF ABS TERMS IS TOTALLY CONTROLLED BY THE GOVERNMENT AUTHORITIES

The Act provides that the amount to be paid, and other terms under ABS have to be determined on Mutually Agreed Terms (‘MAT’) between the user, the concerned local bodies and the local communities (benefit claimers). However, in practice, the users (under both, NBA and SBBs) hardly get any say in the determination of the MAT. The application process of the NBA as well as of major SBBs starts with the filling of a standard application form by the user. The NBA/SBB then, after completing the internal processes (that involves consultation with the local bodies) with the applications, comes up with the terms of access and the ABS amount to be paid by the user. The user is then required to sign an ABS agreement drafted to that effect (usually, a standard agreement) and pay the ABS money. Importantly, in this entire process, there seem to be no scope for any
consultation/discussion with the users in determining the MAT. At most, the users can appeal before the National Green Tribunal against the calculation of the ABS amount. Therefore, MAT is just a misnomer and in reality, the users do not have any say in it. Further, even the benefit claimers hardly have any say in the MAT determination. This is because the local bodies, that are ultimately required to deliberate with the local communities and take steps for their benefits and conservation of the resources, are not adequately developed, and in many areas, not even existent! Therefore, only the Government authorities take the first and the final calls.

B. SECONDLY, LONG DELAYS IN THE ABS PROCEDURE

For non-Indian users, NBA approval is required at almost every stage (from approval for access for research, commercial utilization, bio-utilization or bio-survey and for transfer of research results, to approval for transfer of biological resource or knowledge associated thereto). This causes the diversion of resources of those non-Indian users in legal advices, other transaction costs, etc. Long delays in approvals further complicates the quagmire. Now, with the Regulations, since the SBBs also enjoy the right to demand benefit-sharing as a condition precedent to granting the approval to access the bio-resources (and other terms as per the ABS agreements), similar delays have become a reality for Indians as well. For example, in Uttarakhand SBB (that belongs to one of the most biologically diverse Indian states), as of May 17, 2018, the status of around 120 out of 139 ABS agreements have been pending at the application stage for the applications filed in the year 2014-15. The website does not reflect any newer data. Since the bureaucrats have been given the power to determine the ABS and other terms, this gives them a leverage in demanding more and more money from the users. Consequently, bigger companies/entities get free from this bureaucratic red tape by providing hefty upfront ABS amounts and easily secure their access to the bio-resources. It is the smaller players in the market that suffer from the system.

C. THIRDLY, THE MANNER OF CALCULATION OF ABS AMOUNT IS PROBLEMATIC

Thirdly, the Regulations simply provides flat rates of 0.1-0.5% on the ex-factory sales of the products without explaining the logic behind these figures. Such arbitrary calculation squarely ignores the differences in the relative value of different bio-resources in different end-products, something that should be an important consideration in benefit-sharing amount calculation. This article deals with this point in a while.

Having described the problematic aspects of the current benefit-sharing regime, the author hereby proposes an alternative model that can be put up for discussions as a concrete step towards reforming the present system.

VI. AN ALTERNATIVE MODEL FOR BENEFIT-SHARING PAYMENTS

The objective of the Nagoya Protocol is fair and equitable sharing of benefits arising from the utilisation of genetic resources. However, it does not subscribe to a particular type of benefit sharing or a model thereof. It provides a non-exhaustive list of monetary or non-monetary benefits that the members may adopt in their domestic jurisdictions. Therefore, India’s international obligations do not stop it from adopting a different model for benefit-sharing as long as it ensures fair and equitable benefit sharing with the local communities. The author argues that the proposed model does allocate fair and equitable benefit-sharing amounts for the local communities, thereby, is compliant with the objectives of the
Act/CBD/Nagoya Protocol. Furthermore, it has the potential to address various problems existing in the current regime, and is more certain, transparent, and fairer.

A.  A TWO-STEP  PROCESS  FOR  DISCHARGING  BENEFIT-SHARING  OBLIGATION

The author proposes that benefit-sharing obligation should be discharged by the users in two steps. At the time of filing of application before the SBB (and on every subsequent year), a user can pay a reasonable upfront amount and be allowed to access the resources immediately on payment of such amount. A simpler version of the ABS Agreement can be signed at this point. Then, at the end of the financial year, the final ABS amount calculated can be adjusted with the upfront amount. If the calculated ABS exceeds the upfront amount, the balance can be paid to the SBB by the user, and if it falls short, the balance can be refunded to the user or be carried forward to the next financial year. This process shall repeat for every financial year. Possibility of making this process automated/partly automated can also be explored. This way, the obligation to pay certain upfront amount would ensure that the users do not use the bio-resources free from any immediate obligation, while at the same time are not burdened a lot. The exact value of this upfront amount can be fixed by considering the necessary variables.

The scenario would be a bit different for non-Indian users. After filing the applications and before the access, they would be required to wait for NBA’s approval. However, the payment obligation can be made simpler under the proposed model even for non-Indian users.

Having proposed the model, the author now argues that this model adequately addresses the concerns raised in this article vis-à-vis the present regime.

I. ADDRESSING THE CONCERNS IN THE PRESENT REGIME

As discussed, the present regime is saddled with huge administrative discretion/control
 that makes the process opaque, uncertain and puts the users at the mercy of the authorities. The proposed model reduces the administrative discretion/control significantly. The authorities would not be free to charge any amount as upfront payment from the users. If they do so, they would be liable to refund the excess amount at the end of the financial year. The proposed model comes with greater certainty and transparency. Further, by ensuring that the users end up paying fair and equitable benefit-sharing amount, it furthers the objectives of the Nagoya Protocol, and at the same time does not unnecessarily burden the users of the bio-resources. Further, since the proposed model would be rather simpler in terms of working, it would cut the unnecessary delays that happen in the current benefit-sharing regime.

Now, having discussed the framework of the proposed model,  the author  also proposes a different model for the calculation of the ABS amount. This proposed model would be fairer and compliant with the international conventions (and the Act), and would also address the third concern raised in this article.

B. BENEFIT-SHARING IN FORM OF AD-VALOREM ROYALTY

Under the present mode, benefit-sharing amount is levied as a certain percentage on the ex-factory sales value of the goods produced that uses bio-resources. The author proposes that ABS should instead be levied as a certain percentage on the value of the bio-resources used in the final product, like an ad valorem royalty, and not on the sales value of the final product. Such an ad valorem royalty model is not new in the benefit-sharing regime. It has been previously proposed in certain other kinds of benefit-sharing frameworks. For example, under the 1982 United Nations Convention on the Law of the Seas, there are benefit-sharing provisions qua the benefits arising out of the exploration of resources in the seabed, that are to be shared equitably for the mankind as a whole. In furtherance of this, later, various models of benefit sharing have been proposed. One proposal was to impose an ‘ad valorem royalty’ on the value of sales of the seabed resources to be paid towards benefit-sharing.

Evidently, the benefit sharing obligation was proposed only on the value of the seabed resources and not the final product made out of it. The author argues that the possibility to introduce such a model should be explored in the Indian benefit-sharing regime as well where benefit-sharing obligation is put on the total value of the bio-resources used and not the ex-factory sales value of the final product (as happens in the present regime).

A final product (be it a pharmaceutical product, cosmetic product, etc.) is not formed just by the use of the bio-resources. Various other inputs are also involved. Therefore, it is unfair to tax the users on the total value of the products (that includes many more inputs other than the bio-resources) in name of benefit-sharing. Pertinently, if the objective of the Act/CBD/Nagoya Protocol is to ensure that the benefits accruing to the users due to the use of bio-resources comes to them, it only seems fair if such an obligation is put on the users only to the extent the bio-resources are valued/used in the products and not beyond. The manner of calculation of such value can be explored.

This model also addresses the third concern raised in this article. Since ad valorem royalty would be levied on the value of the bio-resources in a particular product, it would take into account the differences in the use of bio-resources (in terms of amount as well as value) in different end-products, which is not taken care of in the present regime. For example, bio-resources may form the most important component in a pharmaceutical product, but it may not be so in a cosmetic product that might just use the essence of a biological resource. Under the present system, since benefit-sharing amount is levied on the ex-factory sales value, it does not account for the relative difference in the value of the bio-resources in the two products. However, the present model would take care of the same.

Both prongs of the proposed model can be implemented in either of the circumstances, whether the Divya Pharmacy’s interpretation occupies the field of law, or it is later overturned by the apex judiciary or the legislature. In the former case, the proposed model can be applied in levying benefit-sharing upon both, Indian and non-Indian users, while in the latter, it can be applied only qua the non-Indian users.

VII. CONCLUSION

Benefit-sharing obligation is levied so that the benefits actually reach to the local communities. But as things stand, the performance of the Government on this front is highly questionable. Therefore, some scholars argue a legislation like the Act, that has failed in its purpose and is just benefitting the Government authorities, must be repealed. However, the author argues that, since the current model is not serving its purpose adequately, it is only fair if it is at least made less burdensome for the users, while remaining compliant with the applicable international conventions. The proposed model proposes a way towards the same. The specifics of this model can be worked out, but the focus of this article has been to present the problems prevalent in the system and initiate a discussion towards rebranding the benefit-sharing regime in India towards a more certain, transparent, and fairer regime.But even this model would be inadequate to ensure that the benefits actually reach the local communities. However, that would be a discussion for another day.

Doctrine of ‘Right to be Forgotten’ in Indian Law

(By Saji Koduvath, Advocate, Kottayam)

Abstract of the Contents

1. Courts in India apply the doctrine of ‘Right to be forgotten’:

(i)   basing on the foundational principles enshrined in Article 21 of the Constitution (Right to Life),

(ii)    following the land mark decision, K.S.Puttaswamy v. Union of India (2017 (4) KLT 1 (SC)  = (2017) 10 SCC 1) wherein it is held: “Privacy postulates the reservation of a private space for the individual, described as the right to be let alone”) and

(iii)  under the provisions of Information Technology Rules, 2021.

2.    Personal Data Protection Bill, 2019, that upholds the doctrine of  ‘Right to be Forgotten‘, is not passed, though introduced in Parliament in 2019.

3.    Now this doctrine is used for removing private information from internet.

 

Part I

What is ‘Right to be Forgotten‘

It is human nature to forget things. The right of an individual not to be injured, out of another’s acts of constant recalling-of-past-deeds, is recognized in law – as the doctrine of ‘Right to be Forgotten’. 

Now Used for Removing Private Information from Internet

Now-a-days it is applied to uphold reputation of a person, by removing the private information about him from internet sites and services.

Right to Righteous Life and Reputation

Article 21 (Right to Life) of the Constitution of India reads:

“Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Right to righteous life is an inalienable human right

 

Shakespeare(Othello:Act II, Scene iii) says through IAGO as under:

      “Good name in man and woman, dear my lord,

      Is the immediate jewel of their souls:

      Who steals my purse steals trash; ’tis something, nothing;

      ‘Twas mine, ’tis his, and has been slave to thousands:

      But he that filches from me my good name

      Robs me of that which not enriches him

      And makes me poor indeed.”

Shakespeare made it clear – a good name, or reputation, is valuable for its owner. Stealing the reputation of one, does not make another rich. But he who loses reputation, suffers damage.

First Statute which recognized ‘right to be forgotten

The European Union systematized the right to be forgotten in a statute, first time, in the year 2018, by ‘General Data Protection Regulation’.    

First case where ‘right to be forgotten’ recognized

Google Spain SL v.Agencia Espanola de Proteccion de Datos (AEPD), [2014] QB 1022,may be the first case wherein the ‘right to be forgotten’ was recognized as a legal right. It is sprouted from ‘right to privacy’.

 

Part II

Codification of the Law on Reputation in India

Personal Data Protection Bill, 2019.

Personal Data Protection Bill presented in the Indian Parliament by the Ministry of Law and Justice, based on the recommendations of V.N. Sreekrishna Committee, in 2019, legally accepted the ‘right to be forgotten’ as a recognizable right.  Unfortunately, the bill had not been passed by the Parliament, so far. 

Information Technology Rules, 2021.

Rule 3(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 directs as under:

“(2) Grievance redressal mechanism of intermediary:

(a)The intermediary shall prominently publish on its website,mobile based application or both,as the case may be, the name of the Grievance Officer and his contact details as well as mechanism by which a user or a victim may make complaint against violation of the provisions of this rule or any other matters pertaining to the computer resources made available by it, and the Grievance Officer shall –

(i) acknowledge the complaint within twenty four hours and dispose off such complaint within a period of fifteen days from the date of its receipt;

(ii) receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction.

(b) The intermediary shall, within twenty-four hours from the receipt of a complaint made by an individual or any person on his behalf under this sub-rule, in relation to any content which is prima facie in the nature of any material which

exposes the private area of such individual,

shows such individual in full or partial nudity or

shows or depicts such individual in any sexual act or conduct, or

is in the nature of impersonation in an electronic form,

including artificially morphed images of such individual,

take all reasonable and practicable measures to remove or

disable access to such content which is hosted, stored,

published or transmitted by it:

(c) The intermediary shall implement a mechanism for the receipt of complaints under clause (b) of this sub-rule which may enable the individual or person to provide details, as may be necessary, in relation to such content or communication link.”

 

High Court Decisions in India, on ‘Right to be Forgotten’  

Despite the non-delivery of the proposed ‘Personal Data Protection Bill’ by the Parliament, various High Courts in India pronounced judgments accepting the doctrine, ‘right to be forgotten’, as an inalienable human right.  It is founded upon Art. 21, ‘Right to Life’, the most valuable fundamental rights in the Constitution of India. 

 

After the decision on ‘Right to Privacy’ rendered by the Supreme Court of India in  K.S. Puttaswamy v. Union of India (2017 (4) KLT 1 (SC) = (2017) 10 SCC 1), various High
Courts upheld the rights arising from ‘right to be forgotten’, based on the dogma on ‘Right to Privacy’.

The following are the land-mark decisions on the doctrine of the ‘right to be forgotten’ (after the verdict in Puttaswamy).

1.    Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd.(Delhi HC, 2019) 

      2019 SCC OnLine Del.8494).

2.    Sri Vasunathan v. The Registrar General (Karnataka H.C.) (2020).

3.    Subhranshu Rout Gugul  v. State of Odisha (2020 (Orissa H.C.),

      2020 SCC OnLIne Ori.878).

4.    X  v. YouTube (2021).

5.    Jorawer Singh Mundy v. Union of India & Ors. (Delhi HC, 2021),

      2021 SCC OnLine Del.2306).

 

Prior to the Supreme Court decision in Puttaswamy, the Courts in India did not accept the ‘right to be forgotten’ as a right recognizable in the Jurisprudence available in India.  It was on the premises that no enacted law spoke specifically as to such a right.  The said earlier decisions include the following:

* Naresh Sridhar Mirajkar v. State of Maharashtra (AIR 1967 SC 1).

* Dharamraj Bhanushankar Dave v. State of Gujarat ( 2017 SCC OnLine Guj. 2493).     

* Anchit Chawla v. Google India, 2018.

 

Even after Puttaswamy, finding it ‘more appropriate to await’ till the Parliament opens its eyes or expounds its wisdom, the T.N. High Court held in Karthick Theodre v. The Registrar General, (2021 SCC OnLine Mad. 2755), as under:

“This Court honestly feels that our criminal justice system is yet to reach such standards where courts can venture to pass orders for redaction of name of an accused person on certain objective criteria prescribed by rules or regulations. It will be more appropriate to await the enactment of the Data Protection Act and Rules thereunder, which may provide an objective criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings. If such uniform standards are not followed across the country, the constitutional courts will be riding an unruly horse which will prove to be counterproductive to the existing system.”

 

Part III

Decisions Upheld, ‘Right to be Forgotten’

1. X  v. YouTube (Delhi HC, 2021)

The plaintiff in that case was a well-known actor in TV and Film world of India.  She participated in the creation of Video made mention of in the suit (suit video).  The project was later on dropped.  But the plaintiff found that the producer of the suit video uploaded it in YouTube channel and website.  On the request of the plaintiff the producer removed the videos.  Without plaintiff’s consent the defendants in the suit uploaded the suit videos in various websites.

The plaintiff applied for anonymity and filed the suit against the publication, streaming, or other broadcasting, on the ground that the suit videos infringed her privacy, negatively affected her reputation and it prejudiced her career.  

The contesting defendant (Google) argued the following:

*     they were unaware of the agreement as to the videos;

*     the plaintiff being consented  filming the videos  defendants were not under an obligation to prevent the publication of the videos;

*     the plaintiff had no statutory protection to enforce the ‘right to be forgotten’. 

*     the plaintiff had not required the authorized representative who complied to the Intermediary as provided under Rule 3(2)(b) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

*     Section 67 & 67A of the Information Technology Act, 2000 excluded matters
published in the interest of Science, Literature, Art, etc.

The defendants (Google) relied, mainly, on:

*    KarthickTheodre v. Registrar General (2021 SCC OnLine Mad. 2755).

*     Dharamraj Bhanushankar Dave v. State of Gujarat (2017 SCC OnLine Guj. 2493),

*     Anchit Chawla v. Google India, 2018. 

Finding the suit to be maintainable, the Court held that the suit videos were of the kind that comes in Rule 3(2)(b) of the I.T. Rules, 2021.  The Court pointed out:

*     Even if plaintiff allowed to videograph voluntarily, the suit videos were not agreed to be published or transmitted by the defendants. 

*     She did not license for any of the URLS, Websites or Search engines to publish or transmit the same to YouTube. 

*     The defendants published or circulated the videos ‘for obvious monitory and other prurient benefits’. 

*     Even if the producer would have claimed protection on the consent of the plaintiff, the defendant had ‘no such consent’. 

*     ‘Right to be forgotten’ and the ‘right to be left alone’ are ‘inherent aspects’ of the ‘right to privacy’. 

The claim raised by the plaintiff against the circulation of videos against her will was accepted by the court.

 

2. Jorawer Singh Mundy v. Union of India & Ors.  (Delhi H.C., 2021)

The Delhi High Court (Prathiba M. Singh, J.) upheld the doctrine of ‘right to be forgotten’ in this decision. 

The petitioner, an American citizen of Indian origin, travelled in India during 2009. 
A criminal case under the NDPS Act, 1985 was lodged against him.  He was acquitted from all the charges.  The appeal filed by the Customs was also dismissed.  After his return to US, the petitioner had to face disadvantages due to the availability of his case on a Google search.  Hence employment to his expectations was denied to him.  The petitioner issued notice to Google India Pvt. Ltd., Google LLC, Indian Canon, etc.  Even after notice the respondents in the case did not remove the judgment.  Hence the petitioner filed the petition to recognize his right to privacy under Article 21 of the Constitution of India.

The High Court referred the following judgments:

* K.S. Puttaswamy (2017 (4) KLT 1 (SC) = (2017) 10 SCC 1). 

* Zulfiqar Ahman Khan (supra) and

* Subhranshu Rout Gugul (supra)

 

The High Court, by an interim order, directed Google India Pvt. Ltd. and Google LLC to remove the judgment from ‘search results’ sought for by the petitioner; and directed Indian Canon to block the said judgment from being accessed by using search engines such as Google/yahoo etc. 

 

3. Subhranshu Rout Gugul  v.  State of Gujarat (2017 SCC OnLine Guj. 2493)

The petitioner was charged with various offences including rape of his classmate.  While considering the bail application a question arose as to the recognition of the ‘Right to be forgotten’ in Indian Law since the video recording with the accused was alleged to be used to threaten and blackmail the victim.  The court has to consider the impact of the publication of the videos in Facebook, and in this conduct the recognition of the ‘right to be forgotten in India’ came up.  The court pointed out that if Rout removed the Facebook video it would still remain ‘in the public domain’.  The High Court referred to

*     Sri Vasunathan v. The Registrar General (2017 SCC Online Kar.424).

*     Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd.  (2019 SCC OnLine Del.8494), 2019(175) DRJ 660). 

*     (Name Redacted)  v. The Registrar General (Karnataka High Court).

It was pointed out that in (Name Redacted)  v. The Registrar General (Karnataka High Court) recognized ‘right to be forgotten’ explicitly, though in a limited sense; and that the petitioner’s request (to remove his daughter’s name, from the judgment, involving claims of marriage and forgery) was upheld.  In that decision it was held that recognizing ‘right to be forgotten’ would parallel initiatives by western countries which upheld this right when sensitive cases concerning the modesty or reputation of people, especially women, were involved. 

 

The High Court also relied on Puttaswamy v. Union of India to uphold the rights claimed in the matter.   

4. Sri Vasunathan v. The Registrar General (Karnataka H.C.)  

In this case it was observed that the ‘right to be forgotten’ is ‘keeping in line with the Trend in western countries where it is followed as a matter of rule’.

 

5. Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd., 2019 SCC OnLine Del. 8494.

The suit was filed seeking permanent injunction against a digital/electronic platform (www), its editor and an author who had written articles against the Plaintiff on the basis of harassment complaints claimed to have been received by them, against the Plaintiff, as part of the #MeToo campaign. The three individuals, who made allegations against the Plaintiff, have remained anonymous and have not revealed their identity in the public domain.

 

The Defendants, while the matter is being heard submitted the court that they were willing to pull down the said two publications against the plaintiff and that the first article had already been pulled down.

 

It was pointed out by the Court that if re-publication is permitted to go on continuously, the Plaintiff’s rights would be severely jeopardised. The court observed:

“The original publisher having already agreed to pull down the same, this Court having directed that the same ought not to be republished, the Plaintiff, thus, has a right to ensure that the articles are not published on multiple electronic/digital platforms as that would create a permanent atmosphere of suspicion and animosity towards the Plaintiff and also severely prejudice his personal and professional life. The printouts of the articles from certain sites, which have been shown to the Court, leave no doubt in the mind of the Court that these are identical to the articles published on the first defendant’s site, which have already been pulled down.”

 

Then it is held as under:

“9. Accordingly, recognising the Plaintiff’s Right to privacy, of which

*     the ‘Right to be forgotten’ and

*     the ‘Right to be left alone’ are inherent aspects,

it is directed that any republication of the content of the originally impugned articles dated 12th October 2018 and 31st October 2018, or any extracts/ or excerpts thereof, as also modified versions thereof, on any print or digital/electronic platform shall stand restrained during the pendency of the present suit.

 

10. The Plaintiff is permitted to communicate this order to any print or electronic platform including various search engines in order to ensure that the articles or any excerpts/search results thereof are not republished in any manner whatsoever. The Plaintiff is permitted to approach the grievance officers of the electronic platforms and portals to ensure immediate compliance of this order.

 

11. If the said search engines do not take down/remove the objectionable content from their platforms within a period of 36 hours after receiving communication from the Plaintiff with a copy of this order, the Plaintiff is also permitted to communicate with the Defendants so that the Defendants can also co-operate in the said pulling down, if required. If the said platforms do not, after being served by a copy of this order, take down the objectionable content, the Plaintiff is given liberty to approach this court forthwith – apart from approaching the appropriate authorities under the Information Technology Act.”

Part IV

K.S. Puttaswamy  v. Union of India and the ‘Right to be Let Alone’

In the celebrated decision on ‘right to privacy’ (K.S. Puttaswamy (2017 (4) KLT 1 (SC)  = (2017) 10 SCC 1) , our Supreme Court has held that the ‘right to be let alone‘ is a part of ‘essential nature of privacy‘ of an individual. It is held as under:

 

“Essential nature of privacy

297. What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.

 

402. “Privacy” is “[t]he condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions” [Black’s Law Dictionary (Bryan Garner Edition) 3783 (2004)] . The right to be in this condition has been described as “the right to be let alone” [ Samuel D.Warren and Louis D.Brandeis, “The Right To Privacy“, 4 Harv L Rev 193 (1890)] . What seems to be essential to privacy is the power to seclude oneself and keep others from intruding it in any way. These intrusions may be physical or visual, and may take any of several forms including peeping over one’s shoulder to eavesdropping directly or through instruments, devices or technological aids.

 

479. Both the learned Attorney General and Shri.Sundaram next argued that the right to privacy is so vague and amorphous a concept that it cannot be held to be a fundamental right. This again need not detain us. Mere absence of a definition which would encompass the many contours of the right to privacy need not deter us from recognising privacy interests when we see them. As this judgment will presently show, these interests are broadly classified into interests pertaining to the physical realm and interests pertaining to the mind. As case law, both in the US and India show, this concept has travelled far from the mere right to be let alone to recognition of a large number of privacy interests, which apart from privacy of one’s home and protection from unreasonable searches and seizures have been extended to protecting an individual’s interests in making vital personal choices such as the right to abort a foetus; rights of same sex couples–including the right to marry; rights as to procreation, contraception, general family relationships, child-bearing, education, data protection, etc. This argument again need not detain us any further and is rejected.

 

560. The most popular meaning of “right to privacy” is -“the right to be let alone“. In Gobind v. State of M.P. (Gobind v. State of M.P. (1975) 2 SCC 148 : 1975 SCC (Cri.) 468), K.K.Mathew, J. noticed multiple facets of this right (paras 21-25) and then gave a rule of caution while examining the contours of such right on case-to-case basis.

 

636. Thus, the European Union Regulation of 2016 [Regulation No.(EU) 2016/679 of the European Parliament and of the Council of 27.4.2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive No.95/46/EC (General Data Protection Regulation).] has recognised what has been termed as “the right to be forgotten”. This does not mean that all aspects of earlier existence are to be obliterated, as some may have a social ramification. If we were to recognise a similar right, it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest. Such a right cannot be exercised where the information/data is necessary, for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims. Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy.”

(Quoted in: Subhranshu Rout Gugul  v. State of Odisha, 2020 (Orissa H.C.),

2020 SCCOnLIne Ori. 878).

Rights of Women At Workplace: A Brief Analysis of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

(By Swapna George, Vice Principal, CSI Institute of Legal Studies, Parassala, University of Kerala)

In her book titled Law Relating to Women and  Children¹, Author Mamta Rao, says that ‘the best way to understand the spirit of a civilization and to appreciate and realise its excellence and limitations is to study the history of its women folk – development and change in the status of women from time to time’. Simply speaking status of the women in a country bears testimony to the social development achieved by it. On an overview of the Indian context, it can be seen that the Constitution of India stands for distributive justice based on one of the most important fundamental rights, the right to equality, providing space for protective discrimination in legislation for women and children. The preamble of the Constitution of India lays down our valuable national policy of securing justice, liberty, equality, and fraternity for all citizens. The concept of justice includes social and economic justice, which are understandably inclusive of the right to employment and to earn living based on the principle of equality.

Right to work implies freedom from sexual harassment

As the true embodiment of values elicited in the Preamble of the Constitution, Article 21
of the Constitution guarantees the right to life and personal liberty to the people. While explaining the scope of Article 21, the Apex Court of India has upheld that the right to life doesn’t mean the right to mere existence, but the right to live a dignified life. Fundamental Rights, as enshrined in the Articles of 14, 19, and 21, jointly formed as a trinity of basic rights, in the Indian Constitution provide for valuable human rights of equality, life, liberty and fraternity.

Principle of economic justice as incorporated in the Preamble of the Constitution entails right to work and earn livelihood. Right to employment, though not a fundamental right claimable against the State, Directive Principles covered under various Articles, especially 39 and 42, bind the State to direct its policy towards ensuring equal right for man and woman to adequate livelihood as well as equal pay for equal work and securing just and humane conditions of work. In short it is one of the fundamental principles of governance that the State ensures equality based humane working environment free from gender discrimination.

Similarly, Article 19(1)(g) which literally grants freedom to practice any profession, to carry on any occupation, trade, or business, incidentally guarantees a working place free from inhuman elements like sexual harassment of women employees. Women’s right to practice a profession or to do work as an employee would be meaningful only if they are assured equality not just in matters like pay, or working hours but most importantly in respect of gender equality in the workplace. It is relevant to remember here the words of the Supreme Court that the meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude²  to encompass all the facets of gender equality including the prevention of sexual harassment or abuse. Gender discrimination and sexual violations, rampantly prevailing in the industrial sector, call for specific legal protection for women at workplace which includes even households in the case of domestic workers.

Sexual Harassment

The United Nations General Assembly on the Convention on the  Elimination of All Forms of Discrimination Against Women has clarified that equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment at the workplace. Article 11(1) of the Convention (CEDAW -1979), advocates for steps to be taken to eliminate discrimination against women in the field of employment in order to ensure equality among men and women. The principle of equality has been reaffirmed in the Second World Conference on Human Rights at Vienna in June 1993 and in the Fourth World Conference on women held in Beijing in June 1955. CEDAW was ratified by the Union of India on 25th June 1993. It requires state parties to take all appropriate measures to eliminate discrimination against women in the field of employment. As per the
provisions of Article 51 of the Constitution, India has to implement it by way of domestic legislation.

Prevention of Sexual Harassment Act, 2013

In tune with the International Conventions and Provisions of our Constitution, Parliament enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. As the title of the Act indicates it provides for prevention and prohibition of the act of sexual harassment and also provides for the redressal of grievances of sexual harassment. Section 2(n) of the Act read with Section 3(2) defines sexual harassment as unwelcome acts or behaviour of the following five kinds.

i)    Physical contact and advances

ii)   A demand or request for sexual favors

iii) Making sexually colored remarks

iv)  Showing pornography

v)   Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

In addition to the above-said activities, the following circumstances as provided for under  Section 3 do also constitute the act of sexual harassment.

i)    Implied or explicit promise of preferential treatment in her employment

ii)   Implied or explicit threat of detrimental treatment in her employment

iii)  Implied or explicit threat about her present or future employment status

iv)  Interference with her work or creating an intimidating or offensive or hostile work

      environment for her

v)   Humiliating treatment likely to affect health or safety

From the above provisions, it is clear that any unwelcome act or conduct which is sexually oriented amounts to sexual harassment. In respect of sexual harassment, it has been held that any form of sexual approach or behaviour that is unwelcome will come under the definition of ‘sexual harassment’ and it is not confined to any of the sub-clauses mentioned in Section 2(n), which of course will depend upon the materials placed on record and on a case to case basis³.

Section 3 of the Act categorically prevents and prohibits act of sexual harassment in the following words “No woman shall be subjected to sexual harassment at any workplace”.

In accordance with the purpose of the Act which aims at ensuring a safe and secure working environment for women at workplace legislature has given a wider definition for the term employee.⁴ It includes any person employed at a workplace for any work or regular, temporary, ad hoc or daily wage basis, either directly or through an agent. It includes a
co-worker, contract worker, probationer, trainee, and apprentice or called by any other similar name. Moreover, it needs to be specially noted that, a woman for being aggrieved by sexual harassment at workplace, need not be necessarily employed. Also, the domestic workers doing odd jobs at households have been brought within the scope of the Act.

Redressal Mechanism

Act provides for an elaborate redressal mechanism in case of sexual harassment at the workplace. Similarly, it imposes certain duties upon the employer with a view to spreading awareness among the employees about their rights against sexual harassment. As per Section 4 read with Section 6 the employer is duty-bound to constitute Internal Complaints Committee in the establishments with ten or more employees. Internal Complaints Committee consists of a presiding officer who shall be a senior woman employee and members committed to the cause of women.⁵ Similarly, District Officers appointed by the Government would constitute Local Complaints Committee at district level.⁶ By all means, these committees shall be women-dominated institutions. In the absence of an Internal Complaints Committee, the aggrieved person can file a complaint before the Local Complaints Committee. The domestic workers also can file their complaints before the Local Committee.

Conciliation and Settlement

On receipt of a complaint of sexual harassment, Internal Complaints Committee can try to settle the matter by way of a non-monitory settlement if the aggrieved woman requests for such a measure.⁷ Where such a conciliatory measure is found to be unfit the Committee shall go ahead with the inquiry proceedings. At this juncture it may be taken note of the fact that in case the aggrieved woman being an illiterate or otherwise incapable person members of the Committee shall grant her necessary assistance for making her complaint in writing. So also, in the event the aggrieved woman is suffering from any incapacity a complaint can be filed by her relative, friend, co-worker, officers of Women’s Commissions, special educator, psychiatrist or psychologist or guardian as the case may be. In case of death of an aggrieved woman a complaint by her legal heir is also sustainable⁸

Inquiry procedure

If the matter is not settled, the committee shall proceed with an inquiry.⁹ It will send a copy to the respondent who has to file his reply within ten days’ time. The Committee is empowered as if a Civil Court for the purpose of summoning and inspecting documents and examining persons on oath.¹⁰ The inquiry procedure has to be completed within a period of ninety days. With respect to the inquiry, it has been held that the inquiry to be concluded is not a preliminary inquiry but should be a full-fledged inquiry as to the finding of the fact. The inquiry has to be conducted in the same manner as to prove misconduct in disciplinary proceedings as referable in Service Rules. Thus there is no space for preparing a preliminary inquiry report.¹¹ In the event of non-appearance of the parties before it, the Committee can either terminate the proceedings or go ahead with ex parte proceedings.

Remedies and Recommendations

An aggrieved woman of the sexual harassment has got certain interim remedies during the inquiry proceeding.¹² On the written request of the aggrieved woman, the Committee may recommend the employer to transfer the aggrieved woman to any other workplace or grant her leave for a period of three months. The leave so granted shall be in addition to other leaves eligible under other provisions of labor laws in force.

On conclusion of the inquiry, if the Committee finds out that the respondent has committed the alleged act of sexual harassment, the Committee shall recommend the employer take action against the respondent in accordance with the Service Rules treating the harassment as misconduct on the part of the respondent.¹³ In the absence of Service Rules, the Committee may recommend any action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service or undergoing a counseling session or carrying out community service.

Provisions of the Act also provide compensatory relief to the aggrieved woman. As per Section 15, the Internal Committee or the Local Committee can recommend compensation to be fixed with regard to the following factors.

  a)  The mental trauma, pain, suffering, and emotional distress

  b) The loss in the career opportunity

  c)   The medical expenses for physical and psychiatric treatment

  d) The financial position of the respondent

  e) Feasibility of payment in lump sum or installments

The amount arrived at can be deducted from the wages of the respondent or the respondent may be required to make the payment and if necessary, even revenue recovery proceedings may be resorted to and recovered as arrears on land revenue.

Penalty for non-compliance

The employer is duty-bound to bring into effect the recommendations made by the Committee, the failure of which would be constituting an offence warranting penalty as per the provisions of Section 26 of the Act. While the first instance of non-performance shall be punishable with a fine of rupees fifty thousand, the subsequent commission of the offence will be punished with twice the amount of fine and even with the cancellation of the registration of the establishment granted by the Government. So it is clear that the intention of the legislature is strong that the instances of sexual harassment at workplace have to be seriously dealt with. Moreover, the aggrieved woman or any person authorised by the Committee can file a complaint before the Magistrate against the employer for the offence of non-compliance of the recommendation. Similarly, the provisions of this Act shall in addition to provisions of other laws. So the aggrieved woman may seek other legal remedies as available.

Duties of the employer as well as the State

In view of the factors like inadequate legal education and awareness about rights and social backwardness, the employer has been held duty-bound to provide a safe working environment at the workplace and to display at a conspicuous place the penal consequence of the sexual harassment. It is now a legal requirement that sexual harassment is to be treated as misconduct under the service rules of the establishment. He has to organize workshops and awareness programmes at regular intervals for sensitizing the employees about the provisions of the Act.¹⁴ So also, the employer has to monitor the timely submission of reports by the Internal Committee.

Similarly,the appropriate Government should monitor the implementation of the Act. The Government is empowered to call upon any employer or District Officer to furnish in writing such information relating to sexual harassment. The State Government can authorize officers to make an inspection of the records and work in relation to sexual harassment.¹⁵ 

All these duties and measures are to be read with the view of the High Court of Kerala¹⁶ . It has been held that the modesty of women is to be strongly guarded. Instances of sexual harassment are to be strongly deprecated and have to be looked down on heavily. Taking a light and lenient view on such matters would convey a wrong message to society. The Apex Court has, time and again, condemned in heavy words the ‘societal aberration’ namely, sexual harassment of the female gender. The Apex Court has also observed that such incidents result in the violation of the fundamental right of ‘Gender Equality’ and the ‘Right to life and Liberty’.

Critical Observations over Some Provisions

It is quite commendable that the legislature has come out with such an Act envisioning the most important Gender Equality in the workplace. It is more so given the fact that domestic workers of households have been taken care of and accommodated within its sweep. Still, the success of the Act in bringing desired results has to be objectively assessed especially in the presence of a conciliation mechanism and settlement of sexual harassment.

Firstly, chances are high that the provision of conciliation will operate as a back door exit for the offender, which is certain in view of the reality before us. Hapless and innocent women workers will possibly be pressurized for their request for conciliation. Thus, the conciliation provision in the Act will serve to water down its own flames. What is more, such a conciliation provision is actually contradicting the very intention of the legislature for eradicating the mischief of sexual harassment. It is to be noted that, on the one hand, sexual harassment, with the same ingredients, has been added to the Indian Penal Code as an offence punishable with three years of rigorous imprisonment.  On the other hand, the same act has been made a small matter that could be simply settled at the request of the victim woman. 

Secondly, while the sexual harassment is an offence under Section 354A of IPC punishable with three years, Sexual Harassment Act provides for transfer of a case to the police for registering a case under Section 509 in which the elements of offence are considerably different.

Thirdly, the act of sexual harassment is treated as misconduct which needs to be dealt with under the ordinary Service Rules. Instead of leaving such matters to be handled according to the Service Rules act of sexual harassment could be treated as its own kind of misconduct and more specific provisions including some more harsh penal consequences could have been incorporated. Otherwise, in all likelihood, the Act is to be turned into a useless weapon.

The mischief of sexual harassment and social factors

On a reality check based on objective analysis of factual situations, it is explicitly understood that the vice of sexual harassment at the workplace, unlike other offensive right violations, cannot be eradicated simply by way of legislation providing for legal remedies and imposing certain duties and obligations upon employers. Only a combination of factories working together can bring a positive result in dealing with such mischief, among them the education holds a primary position. People have to be properly educated so that there should be a change in their attitude toward women treating them as objects rather than autonomous individuals having equal rights as men. Women have to be imparted awareness as to how to deal effectively with instances of sexual harassment. Supportive measures for the assistance of the women victims both material and mental have to be put in place. Provisions for extending psychological treatment and clinical care for the victims of sexual harassment have to be specifically incorporated into the law, especially so in the light of the fact that sexual harassment tears the mind more than the body. Freeing our women workforce from the grip of sexual offences at the workplace is the collective duty of society and the legal obligation of the governmental machinery.

 

That the rights are not absolute but are correlated to duties is one of the indisputable jurisprudential facts. Article 51A(e) of the Constitution of India, under the Fundamental Duties, enjoins the citizen to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities; to renounce practices of derogatory to the dignity of women.

 

Foot Notes

 

1. 4th edn. 2018 Eastern Book Company.

2. Vishaka v. State of Rajasthan (1977 (2) KLT SN 72 (C.No. 72) SC = AIR 1997 SC 3011.

3.  Prasad Pannian Dr. v. Central University of Kerala, Kasargod & Ors. (2021 (4) KLT SN 11 (C.No.9)                    =2020 (6) KLT OnLine 1049).

4.  Section 2(f). The Sexual Harassment of Women at Workplace (Prevention, Prohibition and                                Redressal) Act, 2013.

5.  Section 4(2).

6.  Section 6.

7.  Section 10.

8.  Section 9(2).                                                             

9.  Section 11.

10. Section 11 (3).

11. Sibu L.S.v. Air India Ltd., New Delhi & Ors. (2016 (2) KLT 374).

12. Section 12.

13.  Section 13(3).

14. Section 19.

15. Section 25.

16.  Rajan David v. State of Kerala & Ors. (2016 (4) KLT SN 73 (C.No. 85).

“Positive Secularism” An Indian Version of Secularism

(By Devi  A.R., Section Officer, Law Department, Govt.Secretariat, Thiruvananthapuram)

 

Britishwriter George Jacob Holyoake  designed the term secularism to describe his views of promoting a social order separate from religion, without actively dismissing or criticizing religious belief.¹ In line with Merriam-Webster dictionary secularism represents the “indifference to, or rejection or exclusion of, religion and religious considerations.” ² The term secularism is not there in the original transcript of the Constitution. The inclusion of the ideology of secularism in the Constitution was discussed in the Constituent Assembly at various stages and the same was rejected by the drafting committee chairman. The amendment proposal for inclusion of the term secularism in the preamble was also
nagatived by the Constituent Assembly. Later “Secularism” was inserted in the preamble by
the 42nd Amendment to the Constitution.

 

Amendment moved in Constituent Assembly on secularism

Constituent Assembly on 15th November 1948³  discussed on the Preamble of the Constitution. On such date Prof. K.T.Shah proposed an amendment “That in clause (1) of Article 1 after the words ‘shall be a’ the words ‘Secular, Federal, Socialist’ be inserted.” The proposal was rejected by the drafting committee chairman and also the motion was negatived by the constituent assembly. Hence the term secularism cannot be seen in the original text of the Constitution that was approved by the Constituent Assembly. Articles 25 to 28 recognize and protect religious freedom as the fundamental rights, in the rest of the original Constitution there has been no specification on the approach of State towards religion and religious affairs.

 

42nd Amendment to the Preamble of the Constitution

The Constitution (Forty-second amendment) Act, 1976 amended  Preamble and changed the depiction of the Nation from “sovereign, democratic, republic” to a “sovereign, socialist, secular, democratic, republic”, and also changed the words “unity of the nation” to “unity and integrity of the nation.”

 

Positive Secularism – An Analysis

The term Secularism is neither demarcated nor discussed in the Constitution. But even before the 42nd amendment was passed by the Parliament, the Hon’ble Supreme Court in Kesavananda Bharati v. State of Kerala observed that the secularism is the basic structure of the constitution. In the landmark case S.R. Bommai v. Union of India the Hon’ble Apex Court observed Indian secularism as follows;

“182. Making of a nation State involves increasing secularization of society and culture. Secularism operates as a bridge to cross over from tradition to modernity. The Indian State opted this path for universal tolerance due to its historical and cultural background and multi-religious faiths. Secularism in the Indian context bears positive and affirmative emphasis.”

Apart from this judgment in a series of cases the Apex Court interpreted the term secularism as “positive secularism.” The ideology of positive secularism promotes tolerance of all religions, it is an ideology followed in the ancient India which recognizes all religions equally but, attributing such a meaning to “secularism” for promoting religious activities by the State is conflicting to the very basic concept of Secularism.

 

It is implicit that the framers of the Constitution never proposed to discuss the relation of the State with the people on the religion and never intended to recognize religious groups as dominant factor in the society. Conversely, it is true that the framers never intended that the State should follow skepticism towards the religion, as the freedom of religion found place in the fundamental rights. During the constituent assembly debates Prof. K.T. Shah proposed amendment for inclusion of the term secularism in the preamble was rejected by the drafting committee chairman and nagatived by the constitu-ent assembly. Being a secular state in the text of the constitution and protecting the religious freedom as the fundamental right is paradoxical.Mostly, because of this contradiction the Constituent Assembly did not adopt secularism in the Constitution.

 

 Indian judiciary advanced the“secularism”in the Constitution as “positive secularism” to justify the religious rights guaranteed under Part III of the Constitution. The Hon’ble High Court of Karnataka  in Resham v. State of Karnataka,⁴ though the finality of the judgment is to be determined by the Apex Court, correctly interpreted the factual matrix in tune with the secularist principles. In a secular nation, State is supposed to be neutral towards the religious affairs of the citizen. The said judgment of the Hon’ble High Court of Karnataka upheld the secularist principles envisaged in preamble of the Constitution. It started a trend of interpreting secularism in the Constitution as it meant in the preamble. The move towards separation of State and religion and recognizing the none rather than supporting and promoting all religious group will definitely glow the rule of law and democratic principles. As far as Secularism is not defined otherwise in the Constitution, it should be read as separation of State from religious activities of the people and it is the urgent need of the epoch to keep democratic principle alive.

 

Foot Notes

1. https://en.wikipedia.org/wiki/Secularism

2. Ibid.

3. https://www.constitutionofindia.net/constituent_assembly_debate

4. Judgment dated 15.3.2022 of the Hon’ble High Court of Karnataka in W.P. No. 2347 of 2022

Director General of Prosecution –
An Analysis in the Legal – Value Complexities

 

      (By O.V.Radhakrishnan, Sr. Advocate)

 

This Article is intensely concerned with the interrelated issues of Public Prosecutor and the Director General of Prosecution and the complex interplay between them in the criminal prosecution and their legal dimensions of processual probity and rectitude in the criminal justice system.

 

‘Criminal Procedure’ is a concurrent legislative field specified in Entry 2, List III-Concurrent List of the Seventh Schedule of the Constitution. The Code of Criminal Procedure, 1973 is an exhaustive body of law relating to Criminal Procedure and speaks and speaks as a whole Code on the sole subject of Criminal Procedure. It is an Union Act to consolidate and amend the law relating to Criminal Procedure. The Code occupies the field of the ‘Criminal Procedure’ and being an all-embracing Code relating to the subject, the State Legislature cannot enter into the same field of Criminal Procedure. The induction of Director General of Prosecution and lever up the post above the ‘regular cadre of Prosecuting Officers’ by executive fiat is a patent case of ultra vires because of Article 254(1) of the Constitution of India.

 

The Public Prosecutor is not a protagonist of any party and in theory Public Prosecutor stands for the State in whose name all prosecutions are conducted. The appointment of a Prosecutor is a compelling constitutional necessity, obligatory under the Code of Criminal Procedure also. Section 24(1) of the Code directs that for every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. Sub-section (6) of Section 24
provides that ‘Notwithstanding anything contained in sub-section (5) where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre; Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).’

 

The Central Government or the State Government is empowered to appoint a person who has been in practice as an advocate for not less than ten years as Special Public Prosecutor under Section 24(8) of the Code of Criminal Procedure. Such Special Public Prosecutor would be Public Prosecutor for all the purposes under the Act. Therefore, appointment of Public Prosecutors is exclusively governed by Section 24 of the Code of Criminal Procedure. Public Prosecutor is an integral part in the functioning of a Criminal Court charged with the duty of conducting prosecutions.

 

Director General of Prosecution does not fall in the hierarchical system of ‘regular cadre of Prosecuting Officers’ or under ‘Prosecuting Officers’ as defined in sub-section (6) of Section 24 or any of the provisions under the Code of Criminal Procedure. The Director General of Prosecution is not a constitutional or statutory post. Right to be considered for appointment can only be claimed in respect of a post in a cadre.¹ Notably, the Director General of Prosecution is not a ‘post’ falling within any of the Kerala State Services or Kerala Subordinate Services.

 

Director General of Prosecution does not denote ‘Government Law Officer’ as defined in Rule 2(b) of The Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978.

 

The deeper point is that the factual pre-condition to create a ‘post’ - or precedent legal position is the existence of a ‘service’ established by the legislature. Indeed, a ‘service’ established by law is a sine qua non for creation of post/s. The power to establish a service and to lay down conditions of service is to be regulated by legislation. The power is left to the respective legislature under Entry 70 of List I or Entry 41 of List II of the Seventh Schedule to be made by a specific legislation under Article 309 of the Constitution.

 

It is worthy of notice that the Constitution itself provides for appointment of holders of constitutional posts including Attorney General for India, Controller and Auditor General of India, the Chief Justice and Judges of the Supreme Court and High Courts and Advocate General for the State. Thus there are functionaries who hold office under the Constitution or under Statues outside ‘public service’.

 

In this context I refer with profit to the decision of the High Court of Kerala in Aboobaker v. M.Ratna Singh.² The High Court held: “It is not easy to think that the Public Prosecutor appointed under S.24(1) of the Code, is ‘recruited’ to ‘public services or posts’ in connection with the affairs of the State of Kerala. The Act, as noticed is designed to regulate ‘recruitment and conditions of service’ of persons appointed to Public Services. Indisputably, there is no recruitment under the Act, the appointment being under S.24(1) of the Code of Criminal Procedure. The appointment is not to a “service or post” in the real sense. ......” A fortiori appointment of Director General of Prosecution is not to a ‘post’ in a service constituted by law made by the appropriate legislature. Consequently, appointment of Director General of Prosecution has no constitutional or statutory back-up.

 

The State Government cannot while taking recourse to the executive power under Article 162 of the Constitution go against the provisions of the Code of Criminal Procedure enacted by Parliament. The power of the State executive is circumscribed or limited in creating a post of Director General of Prosecution in the ‘regular cadre of Prosecuting Officers’ hierarchically structured in the Code. It is not possible or permissible to create post of Director General Of Prosecution without amending Section 24 of the Code and without legislative sanction.

 

The obligation of States to ensure compliance with the laws made by Parliament is a constitutional command inscribed in Article 256 of the Constitution. Although an executive act by a State is not authorised by legislative enactment, it will nevertheless be within the executive power of the State--(i) it is not an act which has been assigned in the Constitution of India to other authorities or bodies such as legislature, the judiciary or the Public Service Commission; (ii) it is not contrary to the provisions of any law; and (iii) it does not encroach upon or otherwise infringe the legal rights of any member of the public.³ The State executive can act precisely on its own initiative provided it is within the sphere of executive action permitted to it by the Constitution. Irrefragably, the legislative field of ‘Criminal procedure’ is fully occupied by the Code of Criminal Procedure made by Parliament. Therefore, any provision in the State law or executive order repugnant to the provision of an earlier law made by Parliament, the State law or executive order to the extent of repugnancy be void under Article 254(1) of the Constitution. The State, therefore, has no lawful authority to appoint a lawyer of its choice and designate him as Director General of Prosecution outside the ‘Prosecuting Officer’ hierarchy in the Code. The powers, duties and obligations under the Code are exclusively exercisable by Public Prosecutor appointed under Section 24 of the Code in a criminal prosecution. The practice of making such appointment of Director General of Prosecution without there being a post created by statute defeats public purpose the Code of Criminal Procedure calculated to serve. The procedural safeguards are the indispensable essence of liberty and such practice if allowed to continue would injure the credibility of prosecutorial operations required to be carried out as set down in the Code of Criminal Procedure. Ultimately the public confidence in the criminal prosecution would turn out to be illusory.    

 

It is no function of the State executive to designate the post of Public Prosecutor as Director of Prosecution or to re-designate Director of Prosecution as Director General of Prosecution. Only Parliament can create such a post by making appropriate amendment to Section 24 of the Code of Criminal Procedure. Nevertheless, the Government of Kerala issued G.O.(Ms) No.44/75/Home dated 03.04.1975 ordering the Senior Public Prosecutor, Office of the Advocate General, Ernakulam to function as Director of Public Prosecution in addition of his work under Home Department of the Government Secretariat bringing the Assistant Public Prosecutors under his supervision. The Government without understandable purpose issued G.O.(Ms)No.137/91/Home dated 25.10.1991 re-designa-ting the post of Public Prosecutor, High Court of Kerala as Director General of Prosecution acting beyond its powers. The Government issued G.O.(Ms) No.165/91/Home dated 20-11-1991 reiterating that the office of the Director of Public Prosecution will be re-designated as the office of the Director General of Prosecution and that the holder of the post will have the same status and attendant benefits as those of the Advocate General which is restated in G.O.(Ms) No.117/96/Home dated 29.06.1996.

 

There must be a ‘post’ in existence to enable the State executive to make an appointment and exercise the right officially to designate to do a particular job or to state that appointee has a particular character. Inevitably, appointment of Director General of Prosecution against a non-existing post by the State executive outside ‘Public Service’ not backed by Constitutional or an existing statutory provision is an act stepping outside the executive power of the State. Designation or re-designation of Public Prosecutor does not have bearing on the criminal prosecution which could be carried out only by Public Prosecutor appointed under Section 24 of the Code. Re-designating the post of Public Prosecutor as Director General of Prosecution without amending Section 24 of the Code is ultra vires and unsignificative.

 

The question is whether, by mere declaration, by the Government, that the Public Prosecutor is re-designated as Director General of Prosecution, can he be given the status of Advocate General. Tersely put, designation or re-designation is an action of appointing or nominating to a post. There is no post of Director General of Prosecution in a service constituted by an appropriate legislature or by an executive order either. Unmistakably, a Public Prosecutor appointed under Section 24 of the Code cannot be designated as Director of Prosecution or re-designated as Director General of Prosecution as it is contrary to Section 24 of the Code. The legal effect of re-designation of the post of Public Prosecutor, High Court of Kerala as Director General of Prosecution is that the original post of Public Prosecutor is converted as Director General of Prosecution by resort to executive power of the State despite the Government is shackled by the overly-strict ultra vires doctrine.

 

In “Treatise on the Conflict of Laws” C.K.Allen⁴ said that status is a condition of belonging to a particular class of persons to whom law assigns certain capacities and incapacities. There being no constitutional or statutory ‘post’ or ‘office’ of Director General of Prosecution, no legal consequences result to the Director General of Prosecution from the mere fact of belonging to it⁵ by the specious re-designation as such. The imposition of status of Advocate General on the Director General of Prosecution without any purpose by the State executive is an absolute disregard of the canons of constitutionalism.

 

Advocate General for the State is appointed by the Governor under Article 165 of the Constitution. In M.T.Khan v. Government of Andra Pradesh ⁶ the Supreme Court held: “The office of the Advocate General is a public office. He not only has a right to address the Houses of Legislature but also is required to perform other statutory functions in terms of Section 302 of the Code of Criminal Procedure, Section 92 of the Code Civil Procedure and Section 23 of the Advocates Act. Each of such functions performed by the Advocate General is of great public importance. Such public functions are required to be performed by the holder of a constitutional post having regard to his stature and keeping in view the fact that the State intended to endow such responsibility upon him.” The Supreme Court emphatically held that the State cannot appoint more than one Advocate General.

 

Concomitantly, no one can be given the status of Advocate General appointed by the Governor under Article 165 of the Constitution of India. The State action in giving the status of Advocate General, the holder of a constitutional post to the Director General of Prosecution who does not hold constitutional or statutory post and does not have a right to the status of Advocate General and who has not been validly appointed to the post is unconstitutional and legally unwarranted. In State of Punjab v. Jagdip Sing ⁷ Constitution Bench of the Supreme Court held:

 

“8............In our opinion where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status. ..........” The action of the Government conferring the status of Advocate General to Director General of Prosecution is an abuse of power by taking improper considerations into account and forfeits its description as ‘reasonable’.

 

The functional fulfilment of the duty of public prosecutor requires non-interference by those in political authority or unwarranted directions/command in the purported exercise of the power of superintendence from those who are out of “prosecuting officer” hierarchy. Nevertheless, the general power of Superintendence is conferred by the State on the Director General of Prosecution as per G.O.(Ms) No.120/96/Home dated 02.07.1996. The power of Superintendence comprehends the power to exercise effective control over the actions, performance and discharge of duties of the Public Prosecutors, Additional Public Prosecutors, Deputy Director of Prosecution and Assistant Public Prosecutor Grade I & II and to report to Government on the quality of prosecution work done in those offices.

 

The Director General of Prosecution is required to give guidance and directions to the Public Prosecutors, Additional Public Prosecutors, Deputy Director of Prosecution and Assistant Public Prosecutors in important cases. Every Deputy Director of Prosecution shall forward the diaries of Assistant Public Prosecutors Grade I and II with his remarks and his own diary to the Director General of Prosecution before the 15th of every month. The Public Prosecutors, Additional Public Prosecutors, Deputy Director of Prosecution and Assistant Public Prosecutors are required to forward copies of Judgement in all cases ending in acquittal/discharge to the Director General of Prosecution to enable him to examine whether the acquittal/discharge was the result of poor investigation or prosecution, and if so, to bring the same to the notice of the Government for appropriate action. The Director General of Prosecution is authorised to instruct Superintendent of Police/ Commissioner of Police to convene meeting of Police Officers under his charge and take measures to tone up the quality of prosecution work and to convene meetings of Public Prosecutors and Additional Public Prosecutors in each District and guide them and advise them in the matter of conduct of prosecutions. The Director General of Prosecution is also authorised to call for the case diary file of any case for the purpose of guiding the Investigating Officers in the matter of investigation.

 

 Be it so, the Government ordered that the administrative control/authority over the Assistant Public Prosecutors and Deputy Directors of Prosecution will be transferred from the District Collectors to the Director General of Prosecution as per G.O.(Rt) No. 621/2001/Home dated 14.02.2001. It is further ordered therein that the reporting, reviewing and accepting authorities in respect of the Confidential Reports of Assistant Public Prosecutors, Deputy Directors of Prosecutions and Senior Assistant Public Prosecutors will be as shown in the Annexure to the said order. In the Annexure, Director General of Prosecution is shown as the Reviewing Authority in respect of Assistant Public Prosecutor Grade I and II and the Reporting Authority in respect of Deputy Directors of Prosecution & Senior Assistant Public Prosecutors in the matter of preparation and maintenance of Confidential Reports of Assistant Public Prosecutors and Deputy Directors of Prosecution & Senior Assistant Public Prosecutors. Thereby, they are treated as subordinate to the Director General of Prosecution.

 

There can be no doubting the importance of consultation with the High Court in appointing Public Prosecutor. However, the appointment of Director General of Prosecution is not preceded by consultation with the High Court which is mandated by Section 24(1) of the Code of Criminal Procedure in appointing Public Prosecutor. Consultation is not an empty formality. Efficient and proper criminal prosecution being the main object, the High Court must have a role in appointing Prosecuting Officers which received statutory confirmation in the Code of Criminal Procedure. Therefore, the Director General of Prosecution appointed by the Government without consultation with the High Court cannot be vested with the power of superintendence over the ‘Prosecuting officers’ as the Director General of Prosecution is not answerable to legality.

 

In State of Bihar v. Bal Mukund Sah⁸ the Supreme Court has held that consultation with the High Court as envisaged by Article 234 is for fructifying the constitutional mandate of preserving the independence of the judiciary, which is its basic structure. Applying the ratio of the above decision of the Apex Court, the consultation with the High Court as mandated to do by Section 24 of the Code in making appointment of the Public Prosecutor is for preserving the independence of criminal prosecution. It is a statutory command in making appointment of Public Prosecutor and appointing Director General of Prosecution as a supervisory body bypassing the High Court is a classic case of power abuse becoming a growing syndrome.

 

The Director General of Prosecution bears the insignia of the upper status in the ‘Public Prosecutors’ hierarchy as of the investiture of Director General of Prosecution as the supervisory body. The Public Prosecutors would be in a real predicament in conducting prosecution because they would be caught in a dilemma between the bossy Director General of Prosecution and legal obligation to follow the Code of Criminal Procedure which is non-negotiable. The State must be obedient to the will of the Parliament as expressed in the Code of Criminal Procedure and must not defy the Union law. Exposing the Director General of Prosecution as a law charlatan is an instance of elaborate fraud on the criminal prosecution to be regulated wholly by the Code of Criminal Procedure.

 

The Director General of Prosecution has no referent in the Code of Criminal Procedure and as such the Director General of Prosecution cannot be allowed to intervene or involve in Criminal Prosecution exclusively governed by the Code. When Director General of Prosecution is installed in as a kind of superman to supervise the Public Prosecutor, there is every likelihood that it would hamper or hinder the calm, detached and fearless discharge of the duties of the Public Prosecutor in the conduct of the prosecution of cases as enjoined by the Code.

 

The appointment of Director General of Prosecution is based solely on the decision of the party in power of the State and political bossism cannot normally be ruled out. It is the responsibility of the State to preserve and protect the independence of the Criminal Prosecution without secretly making the system a political instrumentality. The robe of controllerate of Criminal Prosecution wrapped the Director General of Prosecution by the State executive has no legislative sanction and is unjustifiable and undesirable. It must be remedied. The course of justice must not be deflected or interfered with affecting the Criminal Prosecution to be carried out by an independent Public Prosecutor.

 

The responsibility of criminal prosecution and law enforcement lies on the Public Prosecutor. He is answerable to the law and law alone. The Public Prosecutor is not to take instructions regarding prosecution of any particular case even from the executive Government of which he is a subordinate officer. This position is not a fair-weather or timid assurance. It must be respected. The function of the Public Prosecutor under the Code relates to a public purpose and the Public Prosecutor is entrusted with the responsibility of acting only in the interest of justice in the conduct of criminal prosecution. The Public Prosecutor is a holder of a public office and his powers and discretion in the conduct of criminal prosecution would be functionally successful only if the Public Prosecutor is allowed to perform his statutory duties and functions under the Code independently retaining freedom to exercise his powers as and when he may judge the public interest so to require.

 

The Director General of Prosecution in exercise of the power of ‘superintendence’ over the duties and functions of Public Prosecutor enjoys such power to give directions to the Public Prosecutors, Additional Public Prosecutors, Deputy Director of Prosecution and Assistant Public Prosecutors in important cases. The power of superintendence comprehends the authority to give directions to perform the duty in a certain manner, to refrain from performing one or other duty, to direct someone to perform the duty as directed. The power of superintendence is unbridled. Such is the sweep of the power of superintendence vested with the Director General of Prosecution over the entire ‘Prosecuting Officers’ under the Code. In State of Bihar v. J.A.C. Saldanha ⁹ the Supreme Court held:

 

“16. ........The word ‘superintendence’ would imply administrative control enabling the authority enjoying such power to give directions to the subordinate to discharge its administrative duties and functions in the manner indicated in the order. It is only when a subordinate authority subject to superintendence is discharging duties and functions of a quasi-judicial character under a statute that the inhibition of abdication of such power can be invoked. But where the subordinate subject to such power of superintendence of the superior is discharging administrative and executive functions, obligations and duties, the power of superintendence would comprehend the authority to give directions to perform the duty in a certain manner, to refrain from performing one or the other duty, to direct some one else to perform the duty and no inhibition or limitation can be read in this power unless the section conferring such power prescribes one. ....Superintendence connotes supervision which implies a hierarchy, viz., supervisor and the one supervised. It would, therefore, mean keeping a check, watch over the work of another who may be a subordinate in a hierarchy of authority. It would also comprehend that supervision is not merely a negative thing so as to keep a watch but it would imply giving of direction, guidance, even instructions, and in a given case and in a given situation asking one who is being supervised to forebear from doing a thing and directing some one else to do that thing. ......”

 

Obviously, the Director General of Prosecution has no statutory power to control the exercise of the statutory powers of the Public Prosecutors. On the other hand, the Public Prosecutors are vested with statutory powers and are obligated to exercise free and unencumbered discretion as to the exercise of their powers conferred upon them under the Code. Fettering freedom of Public Prosecutors as to the exercise of powers by subjecting them to the superintendence of the Director General of Prosecution who is not a statutory authority and whose very appointment is void under Article 254(1) of the Constitution has the tendency to impair the prosecution functionalism to a great extent. It would offend the basic features of democracy founded on transparency coupled with accountability.

 

It is not without significance that the State has virtually invested the Director General of Prosecution with super powerhouse insignia in the criminal prosecution. The label of Director General of Prosecution is the ubiquitous clothing of upper level in the hierarchy of Public Prosecutors. The Director General of Prosecution installed in as a highest authority may wield political or extraneous clout in the discharge of statutory duties of Public Prosecutors which would run counter to the statutory creed of independence of criminal prosecution. It would likely to lead to a mischievous danger of an unfree and coerced Public Prosecutors conducting Criminal Prosecution endangering the Criminal Justice system.

 

On the pretext of ensuring greater control over the workings of the Assistant Public Prosecutors and increase their accountability thereby leading to greater conviction in criminal cases, the Government ordered the formation of a Directorate of Prosecution headed by the Director General of Prosecution as per G.O.(MS) No.224/2000/Home dated 13.10.2000. The formation of Directorate of Prosecution headed by Director General of Prosecution prior to the insertion of Section 25A in the Code of Criminal Procedure as per the Code of Civil Procedure (Amendment) Act, 2005 is a substantial transgression by the State executive on the field occupied by the law of Parliament. The formation of the Directorate of Prosecution prior to the Amendment Act, 2005 is repugnant to the relevant provisions in the Code of Criminal Procedure and hence is ultra vires and void under
Article 254(1) of the Constitution.

 

Section 25A of the Amendment Act, 2005 enables the State Government to establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Director of Prosecution as it thinks fit. Noticeably, the post of Director General of Prosecution is not a post or office in the Directorate of Prosecution hierarchy. Formation of directorate of prosecution headed by Director General of Prosecution can be brought out only by an amendment of the Code of Criminal Procedure by the Parliament. Directorate of Prosecution headed by the Director General of Prosecution is outside the scheme of Directorate of Prosecution under Section 25A of the Code of Criminal Procedure.

 

In Maneka Gandhi v. Union of India¹⁰ the Supreme Court has held that when Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not enough that there should be some semblance of procedure provided by law, but the procedure under which a person may be deprived of his life or liberty should be ‘reasonable’, fair and just. The protection of Article 21 cannot at all be whittled away by Executive excesses by conscious departure from and disobeying the provisions in the Union law of Code of Criminal Procedure.

 

This article is neither a pejorative reflection on the overweening action of the State executive in placing the Director General of Prosecution as a higher-up in the criminal prosecution of the State nor a teasing tinkering with the practice followed by the Government for several years. It is a settled legal position that if an illegality and irregularity has been committed in the past, the same cannot be allowed to be perpetuated and multiplying the same irregularity and illegality would render the conduct of criminal prosecution dysfunctional. Such irregularity and illegality cannot be compounded by permitting continuance of the same illegitimate and ultra vires acts on the part of the Government. Accountability cannot be allowed to take a long holiday. Therefore, a new functional nexus must remove the undesirable influences in the conduct of the Criminal Prosecution and the credibility, integrity and impartiality in the criminal prosecution must be ensured to bear true faith and allegiance to the Constitution. This work is a perspective setter to serve as an alert signal. Silence is not an option when things are ill done. A renaissance in law-ways is a desideratum. Law and society can make a headway only if socio-legal research stimulates and feeds change.

 

Let me conclude with a sober quote from the judgement of the House of Lords in Ambard v. Attorney-General for Trinidad and Tobago.¹¹ The great Lord Atkin said:

 

“The path of criticism is a public way: the wrong-headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

 

Foot Notes:

1.     R.K.Sabhaarwal v. State of Punjab (1995 (1) KLT OnLine 949 (SC) = (1995) 2 SCC 745).

2.     Aboobaker v. M.Ratna Singh (1992 (1) KLT 41).

3.     Moti Lal v. Uttar Pradesh (1950 KLT OnLine 819 (All.) (L.B.) = AIR 1951 All. 257).

4.     “Treatise on the Conflict of Laws” (1935), p.649.

5.     See “Status in the Common Law”, p.2.

6.       M.T.Khan v. Government of Andhra Pradesh(2004 (1) KLT OnLine 1299 (SC) = (2004) 2 SCC 267).

7.     State of Punjab v. Jagdip Singh (1964 KLT OnLine 1229 (SC) = AIR 1964 SC 521).

8.     State of Bihar v. Bal Mukund Sah (2000 (1) KLT OnLine 947 (SC) = (2000) 4 SCC 640).

9.     State of Bihar v. J.A.C. Saldanha (1980 KLT OnLine 1031 (SC) = (1980) 1 SCC 554).

10.   Maneka Gandhi v. Union of India  (1978 KLT OnLine 1001 (SC) =(1978) 1 SCC 248 = AIR 1978 SC 597.

11.   Delivering the judgment of the House of Lords in Ambard v. Attorney-General for Trinidad and Tobago(1936) AC 322, 335.