2024

LAW SOCIETY
AMUCM

REVIEW
SECOND EDITION

LAW SOCIETY
DEPARTMENT OF LAW
ALIGARH MUSLIM UNIVERSITY
CENTRE MURSHIDABAD
 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

Editors:
Summaya Anis
Mohammad Ali Anwar and Kartikey Tiwari
Mohammad Anas and Mohd Kaif

ISBN: 978-81-957018-5-8
Published By:
Law Society
Department of Law
Aligarh Muslim University Centre Murshidabad.
Jangipur Barrage (Ahiron); Murshidabad-742223; West Bengal ; India.
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Email – lawsocietyamucm@gmail.com
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use of this published information.

Year of Publication - 2024

Edition – Second
ISBN – 978-81-957018-5-8

© Law Society,
Department of Law
Aligarh Muslim University Centre Murshidabad (West Bengal).
 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

TEAM LAW SOCIETY

(2023 – 2024)

ISBN: 978-81-957018-5-8
Dr. Md Rakibul Islam Dr. Mohd Arif
Course coordinator, Department of Law Asst Professor, Department of Law
In-Charge, Law Society President, Law Society

Sumayya Anis
Secretary

Mohammad Ali Anwar Kartikey Tiwari

Joint Secretary Joint Secretary

Mohammad Anas Mohd Kaif

Joint- Secretary (Publication) Joint- Secretary (Publication)

Members
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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

AMUCM LAW SOCIETY REVIEW

PATRON IN CHIEF

ISBN: 978-81-957018-5-8
Prof. Naima Khatoon, Vice-Chancellor
AMU, Aligarh

PATRON
Prof. Md. Zafar Mahfooz Nomani, Dean, Faculty of law
AMU, Aligarh

EDITOR IN CHIEF
Dr. Nigamananda Biswas, Director
Aligarh Muslim University Centre Murshidabad W.B.

EDITORS
Secretary
Sumayya Anis

Joint Secretary Joint- Secretary (Publication)

Kartikey Tiwari Mohammad Anas
Mohammad Ali Anwar Mohd Kaif
 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

FROM THE DESK OF EDITOR

ISBN: 978-81-957018-5-8
Dear Readers,
It is with great pleasure that I welcome you to this edition of the Law Society Review, a publication by the
Aligarh Muslim University Centre Murshidabad. As we continue our tradition of scholarly excellence and
critical thought, this issue represents a tapestry of insightful analyses, thought-provoking articles, and
comprehensive reviews that reflect the vibrant intellectual culture of our institution.
Our university stands as a beacon of legal education, fostering a community where academic rigor meets
real-world application. This edition highlights the diverse voices of our students, faculty, and esteemed
alumni, each contributing unique perspectives on the pressing legal issues of our time. Our contributors
have worked diligently to provide content that is both informative and engaging.
This publication is a testament to the collaborative effort of our editorial team, authors, and peer
reviewers, whose dedication and expertise have made this issue possible. We extend our heartfelt gratitude
to each contributor for their invaluable input.
At Aligarh Muslim University Centre Murshidabad, we believe that legal education goes beyond the
classroom. It encompasses a broader engagement with societal issues and an unwavering commitment to
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We hope this edition not only informs but also inspires you to engage with the complex legal questions
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Thank you for your continued readership.

Editors
Law Society Review

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

TABLE OF
CONTENTS
PAGE NO.

ISBN: 978-81-957018-5-8
01 IMPACT OF E-COMMERCE ON THE ENVIRONMENT 03

02 HISTORY AND EVOLUTION OF TRADEMARK LAW IN INDIA 09

ANALYSIS OF THE CSR PROVISIONS OF THE COMPANIES ACT, 2013, IN PARTICULAR

03 17
REFERENCE TO PHARMACEUTICAL COMPANIES

DECODING DECENTRALIZATION: ASSESSING THE ACTUAL IMPACT OF

04 24
ADMINISTRATIVE DEVOLUTION ON LOCAL GOVERNANCE IN GHANA.

05 FROM RELEVANT' TO 'GLOBAL' TURNOVER: A NEW BASIS FOR CALCULATING PENALTY 35

SYMPHONY OF THE COMMAND THEORY & BROKEN WINDOWS THEORY IN MODERN

06 41
DAY LAW ENFORCEMENT

07 EPITOME OF INJUSTICE AND OPPRESSION 47

08 MINOR R THR MOTHER H V. STATE NCT OF DELHI & ANR. 56

09 DOBBS V. JACKSON WOMEN'S HEALTH ORGANIZATION 142 S. CT. 2228 (2022) 60

EQUAL PAY FOR EQUAL WORK: IN REFERENCE TO THE STATE OF GUJARAT AND
10 66
ORS. V. DR JA BHATT AND ORS.

DR. KAVITA YADAV VS SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE

11
DEPARTMENT AND ORS 71

12 JOSEPH SHINE V UNION OF INDIA 76

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

IMPACT OF
E-COMMERCE

ISBN: 978-81-957018-5-8
ON THE
1
CHAPTER

ENVIRONMENT
1.1 INTRODUCTION
Author: Megha R Nair
The emergence of e-commerce in the modern world of
LLM Student
international trade evidences the revolutionary potential of
CHRIST Deemed to be University
digital technology. The manner in which goods and services are
Co- Author: Dr Manjeri Subin Sunder
bought and sold has been revolutionised by merging
Raj
transportation, information, and communication technologies,
Assistant Professor, School of Law
making online shopping a multibillion-dollar industry. E-
CHRIST Deemed to be University
commerce has redefined supply chain dynamics and consumer
behaviour with the ease of browsing through a wide selection of
items and doorstep delivery of transactions. With the
BRIEF
tremendous expansion and innovation in the e-commerce
1.1 Introduction
1.2 E-Commerce and Environment sector, it is necessary to assess its environmental consequences
1.3 Designing a Sustainable Digital critically. Even while e-commerce is incredibly accessible and
1.4 Economy convenient, its environmental impact is becoming increasingly
1.5 Recommendations questioned. The swift growth of e-commerce has resulted in a
1.6 References
multifaceted interaction between positive and negative
ecological effects, calling for an in-depth understanding of its
repercussions.
The article sheds light on how internet retailing affects environmental systems by delving deeply into the
complex link between e-commerce and the environment. Using an extensive examination of the existing
literature and empirical data, the goal is to break down the complex nature of these effects, ranging from
decreased carbon emissions to increased packaging waste. It is impossible to overestimate the benefits of e-
commerce for the environment. The ability to reduce greenhouse gas emissions related to conventional
brick-and-mortar commerce is one of the most significant advantages. E-commerce lowers the need for
physical store visits by allowing customers to purchase from the comfort of their residences, lowering
carbon emissions from private vehicles. Furthermore, modern technologies can optimise logistics and
delivery routes to maximise fuel efficiency and reduce environmental impact. Moreover, by optimising
supply chain processes and mitigating inefficiencies seen in conventional retail models, e-commerce
promotes resource efficiency.

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Online businesses may prevent overstocking, optimise inventory levels, and reduce the waste of perishable
items by utilising data-driven analytics and inventory management solutions. This reduces the
environmental impact of producing and discarding surplus inventory and protecting natural resources.
E-commerce does, however, also have several detrimental environmental effects that should be carefully
considered in addition to these advantages. The rise of packing waste resulting from internet orders is a
significant problem. Solid waste disposal and landfill formation have become more problematic due to the

ISBN: 978-81-957018-5-8
increase in e-commerce transactions and the widespread use of single- use packaging materials, including
cardboard containers, bubble wrap, and plastic envelopes. Furthermore, the logistics and transportation
networks that support e-commerce activities play a significant role in air pollution and carbon emissions.
The usage of fleets of delivery cars, which are frequently fuelled by fossil fuels, produces various pollutants
and greenhouse gases, especially in densely populated metropolitan areas. Furthermore, the conveyance of
goods from distribution hubs to individual residences, sometimes called "the last-mile problem," presents
notable difficulties with energy usage and environmental effects.
Given these complications, it is critical to take a comprehensive approach to evaluate the environmental
effects of e-commerce. A more thorough grasp of the ecological footprint related to online commerce can
be obtained by considering the entire life cycle of items, from manufacture and distribution to consumption
and disposal. To design policies that promote sustainability and prevent adverse environmental
consequences, stakeholders including legislators, industry leaders, environmental campaigners, and
consumers must collaborate. This study attempts to outline some general guidelines for environmental
legislation in the information age and analyse the current environmental effects of e-commerce. Developing
legislative frameworks and financial incentives that encourage environmentally responsible behaviour in
the e-commerce industry is crucial as we traverse the complexity of a digital economy entwined with
environmental problems. This could involve implementing policies like extended producer responsibility,
eco-labelling programs, and financial incentives to encourage using renewable energy sources in logistical
processes. In addition, cultivating a sustainable culture requires educating consumers about the effects of
their shopping choices on the environment. The public can be encouraged to adopt more environmentally
conscious purchasing habits by teaching them about the impact of online shopping and giving them the
ability to make informed decisions.

1.2 E-COMMERCE AND ENVIRONMENT

Historically, considerable technical advancements have significantly influenced both the economy and the
environment positively and negatively. Most of the time, human economic activity, as it is mediated by
technology, is reflected in our environment as ecological imprints. Over the last 8000 years, as human
civilisation has transitioned from hunting and gathering to agriculture, and notably since the late
eighteenth century when the industrial revolution began, we have altered the earth's surface and accelerated
the degradation of our delicate environment. The current state of environmental issues can be attributed to
the abrupt increase in the speed and strength of technological advancements. The scientific community still
lacks clear conclusions about how the Internet and the environment interact. The three D's for the new
economy—dematerialisation, decarbonisation, and demobilisation—have been used to represent the clear
potential for sound environmental effects of the developing digital economy. It is said that e-commerce can

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lessen the demand for wasteful goods like printed telephone directories, newspapers, magazines, and
catalogues by bringing firms online and using pixels for marketing instead of packages. Mass customisation
is also encouraged by e-commerce through the use of "just-in-time," "just enough," and "just-for-you"
production and marketing techniques, all of which can cut down on waste and the requirement for stock

ISBN: 978-81-957018-5-8
and warehouse space. Furthermore, the rise of teleshopping is thought to be able to decrease the number of
shopping centres and their wasteful use of land. The decrease in carbon emissions linked to conventional
brick-and-mortar retail is one of the most prominent environmental benefits of e-commerce. The
convenience of shopping from home or work is provided by e-commerce, which does away with customers'
need to make separate trips to actual stores. This decrease in transportation lowers vehicle emissions, which
in turn lessens air pollution and the carbon footprint associated with shopping. According to studies, e-
commerce can reduce greenhouse gas emissions more than conventional retail, making it a more
ecologically responsible choice. E-commerce also allows distribution and inventory management
procedures to be carried out more effectively, lowering wastage and resource use. While conventional
merchants frequently overstock merchandise to guarantee availability, e-commerce platforms
optimise inventory levels using modern analytics and data-driven algorithms. Using fewer raw materials
and production inputs reduces the quantity of extra stock, which ends up in dumps and protects natural
resources. E-commerce may also help the environment by encouraging environmentally friendly packing
techniques. Although packing materials are required to safeguard items during transportation, overpacking
adds to waste production and environmental deterioration. To lessen their influence on the environment, e-
commerce businesses have started implementing eco-friendly packaging options, such as materials that are
recyclable and straightforward designs. Furthermore, cutting-edge designs and lightweight materials are
two more ways that package innovations for e-commerce improve sustainability. E-commerce also
promotes creating and using green energy sources to run its operations. Within the supply chain of e-
commerce, servers, warehouses, and delivery trucks are major energy users. E-commerce businesses may
lessen their dependency on fossil fuels and carbon emissions by investing in renewable energy resources like
solar and wind power. Energy-efficiency initiatives like smart building technology and logistics network
optimisation also enhance the environmental sustainability of e-commerce activities. Moreover, the growth
of circular economy concepts—which call for closed-loop product design, production, and consumption—is
aided by e-commerce. E-commerce businesses may increase product life and reduce waste production by
implementing product refurbishing, remanufacturing, and recycling. E-commerce platforms can encourage
the return of unwanted goods for recycling or refurbishing, leading to a more resource-conscious and
environmentally friendly consumption model.
However, a deeper examination of how E-Commerce affects the environment soon shows that these effects
are but one side of the story. Even if there is no denying that it has the ability to save energy and materials,
it is still too early to draw optimistic conclusions about how the growing digital economy will affect the
environment. Our civilisation is not yet where science and technology can harmonise economy and
environment to bring about a sudden change, marked by an industrial ecosystem that eliminates waste,

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landless agriculture, and a hydrogen fuel economy. On the other hand, every possible advantage comes with
a potentially crippling disadvantage as well. For instance, shifting operations online can reduce waste from
things like printed catalogues, store space, and transportation needs. However, doing so would need to
produce more computers, which use more energy. Furthermore, online marketing might promote careless
rather than cautious consumption. Mass manufacturing has already risen considerably worldwide thanks to
the Internet. More purchases are made because it's so easy to point and click. According to a German

ISBN: 978-81-957018-5-8
survey, consumers at online bookshops spend about twice as much as at traditional bookshops. Regarding
energy usage, just-in-time delivery frequently results in vehicles travelling halfway empty. E-commerce also
favours quicker means of transportation, which might result in exponential increases in fuel usage. Energy
usage increases four to five times when we choose trucks over boats or rail—relocating the same cargo by
air freight significantly increases energy use. The growth of e-commerce has further spurred the rise of the
overnight shipping industry. The online economy is undoubtedly a two-edged sword. Our understanding of
the scope and mechanics underlying the trends of material usage and energy use is highly restricted,
notwithstanding the expanding body of research on the three D's.
1.3 DESIGNING A SUSTAINABLE DIGITAL ECONOMY
It is necessary for all parties concerned, i.e., government, businesses, customers, financial sector, etc., to
contribute to developing sustainable e-commerce solutions. For instance, it is generally recognised that
legislative initiatives to support better environmental standards and laws are essential to beginning and
completing sustainable processes and developing novel products, services, or systems. Until recently, e-
commerce's beneficial environmental consequences have mostly been unplanned because its main uses have
been for business, including expanding markets, speeding up company operations, and reducing transaction
costs. From an environmental perspective, businesses should integrate ecological requirements into their
strategies from now on due to the growing relevance of e-commerce for the economy and environment.
Understanding e-commerce's advantages as well as its possible environmental drawbacks will help us steer
clear of its worst consequences. Consumers, businesses, and the government may prevent the new business
models of the connected economy from worsening existing conditions by taking proactive measures.
Adopting an e-commerce code of behaviour that enhances environmental transparency, lowers packaging
and product waste, and streamlines shipping logistics would be a significant step. A few things may be done
to ensure e-commerce platforms support sustainable growth and reduce environmental damage. Employing
the most energy-effective product delivery systems possible should be their priority. Second, by encouraging
shippers to use fuel alternatives for transportation, e-commerce platforms may help reduce carbon
emissions. Thirdly, they must create recyclable, reusable, and ecologically friendly packaging materials to
reduce waste production. Furthermore, transportation's environmental effects may be minimised by
producing economical goods to ship. Additionally, by promoting the environmental advantages of digital
copies of tangible items like music, books, and photos, e-commerce businesses may lower the demand for
tangible goods. Further reducing the amount of paper used and disposed of can be achieved by promoting
electronic bill payment and making online guides and forms available. Customers may also contribute by
putting pressure on online sellers to offer the greenest feasible goods, packaging, and shipping methods.
Customers must demand that online retailers not only steer clear of these ecologically harmful activities but

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also provide reusable packaging and insist that their shippers utilise alternative fuels instead of aeroplanes
for delivery. In the end, customers should use the internet to supplement, not replace, their travels to the
store in their cars.
An analysis of how e-commerce is now implemented shows that three essential requirements aren't being
met to create sustainable e-solutions. First, very few businesses have been monitoring and evaluating the
environmental impact of their e-business operations up to this point. Large corporations with certified

ISBN: 978-81-957018-5-8
environmental management systems still confine their performance evaluation to conventional procedures
and undertakings. Second, while developing and implementing e-commerce business models, environmental
and sustainability considerations are virtually never considered. Third, even if they wanted to, consumers
and customers have not yet had the chance to choose wisely between various offerings as they have not had
the opportunity to obtain data on the environmental performance of e-commerce apps.
Applying new collaborative and interactive forms of innovation planning and management, the extension
of environmental performance measurement and management to e-business activities, and the provision of
customer choice are the three main business approaches to developing sustainable e-commerce solutions
that consider these deficits.
1.4 RECOMMENDATIONS
It will take a team effort from governments, companies, and customers to incorporate sustainable practices
into e-commerce operations. E-commerce has always prioritised expanding its customer base and
streamlining operations, but its effects on the environment have frequently gone unnoticed. Better
environmental standards must be enforced throughout e-commerce platforms by enacting legal legislation.
Companies must incorporate ecological factors into their plans, realising the increasing importance of e-
commerce to the environment and the economy. Furthermore, taking active measures like developing an e-
commerce code of conduct that prioritises environmental transparency, cutting down on packaging waste,
and streamlining shipping operations is essential. E-commerce platforms should encourage the use of
alternative fuels for transportation, the production of recyclable packaging materials, and the prioritisation
of energy-efficient delivery technologies. Businesses also need to promote environmentally conscious
shopping habits by educating customers about the advantages of digital items. Nonetheless, there are still
several critical gaps that need to be filled. These include the absence of transparent environmental data for
consumers, the lack of environmental impact monitoring by businesses, and the inadequate consideration
of sustainability in e-commerce business models. To address these discrepancies, cooperative innovation
planning is needed, as is the extension of environmental performance monitoring to e-commerce operations
and providing information to customers so they may make ecologically responsible decisions. By
implementing these recommendations, e-commerce may reduce its detrimental effects on the environment
and develop into a more environmentally conscious and sustainable sector of the economy.
1.5 REFERENCES
1. Ausubel, J., & Sladovich, H. E. (Eds.). (1989). Technology and the Environment. National Academy
Press.
2. Billatos, S. B., & Basaly, N. A. (1997). Green Technology and Design for the Environment. Taylor &
Francis, London, 221 pp.

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3. Brower, M., & Leon, W. (1999). The Consumers Guide to Effective Environmental Choices. Three Rivers
Press, New York, 156 pp.
4. Choi, Y. (2017). Sustainable Governance in Northeast Asia: Challenges for the Sustainable Frontier.
Sustainability, 9, 191.
5. Durning, Alan. (1992). How Much Is Enough? The Consumer Society and the Future of the Earth. New
York: W. W. Norton, 200 pp.

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6. Fichter, K. (2001). Environmental effects of e-business and Internet economy. Working Paper for the
German Federal Environment Ministry (BMU), Borderstep Institute for Innovation and
Sustainability,Berlin.
7. Fichter, K. (2002). E-commerce: Sorting out the environmental consequences. Journal of Industrial
Ecology, 6(2), 25-41.

8. Georgescu-Roegen, N. (1971). The Entropy Law and the Economic Process. Harvard University Press,
Cambridge, 457 pp.
9. Hawken, P., Lovins, A., & Lovins, L. H. (1999). Natural Capitalism: Creating the Next Industrial
Revolution. Little, Brown, Boston, 396 pp.
10. Molla, A., & Heeks, R. (2007). Exploring e-commerce benefits for businesses in a developing country.
Information Society, 23, 95–108.
11. Peng, Lifang, Qi Li, and Xianfeng Zhang. "Optimism or Pessimism: Environmental Impacts of E
Commerce." Environmental Informatics Archives (School of Management, Xiamen University,
Xiamen 361005, China; School of Economics and Finance) 3, no. 3 (2005): 263–269.
12. Sarkis, J., Meade, L., & Talluri, S. (2002). E-logistics and the natural environment. In The Ecology of
the New Economy, edited by J. Park and N. Roome. Sheffield, UK: Greenleaf.
13. Sui, D. Z., & Rejeski, D. W. (2002). Environmental impacts of the emerging digital economy: the e-for
environment e-commerce? Environmental Management, 29, 155-163.
14. Tiwari, S., & Singh, P. (2011). E-commerce: prospect or threat for the environment. International
Journal of Environmental Science and Development, 2(3), 211.
15. WBCSD (World Business Council for Sustainable Development), ed. (2001). Sustainability through the
Market: Seven Keys to Success. Geneva: WBCSD.

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HISTORY AND EVOLUTION OF

TRADEMARK LAW IN INDIA

ISBN: 978-81-957018-5-8
2
CHAPTER

ABSTRACT
Author: Gaurav Yadav
Trademarks have a long history in India, stretching back
LLM(IPR) Student
millennia. It all started along the ancient trade routes, where
Hidayatullah National Law University,
special marks were carved on items as proof of skill and honesty of
Raipur
each artisan workshop. These stamps developed along with the
development of exchange frameworks, filling in as markers of
starting point and dependability. In temples and guilds arose
BRIEF important keepers of trust, attesting products with symbols of
Abstract both the sacred and reliability of quality. It was the coming of
Introduction British colonialism that created a sea change. Own marks by the
Early Trademark Practices in India
British East India Company meant 'control' and 'exploitation'. As
- Ancient Era
colonial symbols competed with traditional marks, the delicate
- Medieval Era
- Role of Temples and Guilds tension of trust and identity was disturbed. India passed the
Evolution of Trademark During British Trademarks Act 1940 to legislate trademark law. This Act formed
Rule In India the bedrock of India's legal framework to align its practices with
- Colonial Influence on Trademark Act international standards. Trademarks Act 1999: Another
- The Trademark Act 1940 significant step forward for the trademark system by expanding
Evolution of Trademark in Independent
the definition and acceptance of being relevant in an era of
India
electronic media. India's compliance with worldwide treaties
- The Trade and Merchandise Marks Act,
1958 and its Drawbacks demonstrates its commitment towards IPR protection globally.
- TRIPS Agreement (1994) Finally, the journey from traditional symbols to trademarks, from
- Modernisation through the Trademark trademarks to registration, to protection is a testimony to one's
Act 1999 love for symbols and entrepreneurial spirit. Trademarks are not
- Ratification of Madrid Protocol (2013) just emblems; they are personified brands, the shields of trade.
- Impact on Enforcement and Protection
This article gives extensive research on the historical development
Conclusion
and journey of trademark laws in India.

Keywords: History, Evolution, Trademark, Colonial Influence, TRIPS

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1. INTRODUCTION
In the current fast-paced global marketplace, brands are not just names and logos but rather symbols of
trust, quality, and identity. Trademarks play a vital role in identifying products and services in the
marketplace. They are critical for businesses to safeguard their brand, ensure the quality of their products,
and build customer loyalty. Trademarks are the physical manifestations of a brand's soul. They become a
brand's face, expressing its ethos to the world. Beyond their visual appeal, trademarks hold immense

ISBN: 978-81-957018-5-8
significance. In a crowded global marketplace, trademarks are brands in shorthand. A carefully crafted
trademark goes beyond language and culture to instantly engage customers and leave a mark. Behind each
iconic brand, whether it's the swoosh of Nike or Adidas' three-stripe logo, lies a story. Trademark law in
India has an interesting past and has developed through the years to assure the rights of people and
companies. Trademark law originated from humble origins to the current legal regime. It has long served as
the guardian of brand exclusivity and goodwill. A trademark is a visual symbol in the form of a word or in
the form of name, label, device, brand, heading, numeral or any combination and which includes graphic
representation applied to goods represented by it to indicate the connection in the course of trade between
goods and person having right as proprietor. By application, the proprietor of a mark will obtain a limited
exclusive right to use it with respect to those goods. This right to use such mark has been recognised as a
Trademark and can be protected either at common law or by registration under the Trademarks Act 1999,
replacing the old Trade and Merchandise Marks Act 1958.
The law relating to Trademarks in India is governed by the Trademarks Act 1999 and the Trademarks
Rules, 2002. The Trademarks Act 1999 safeguards the trademarks and their infringement challenged by a
passing off or infringement action. It saves a trademark for goods or services on the footing of either use or
registration and if applied by multiple topologies, it should be put into practice accordingly. The journey of
Indian trademark law is a colourful blend of ancient traditions in commerce, the impact of colonialism and
its reform post-independence. Grasping this context is crucial for understanding the contemporary legal
terrain. The paper intends to explore Trademarks' long and complex heritage in India and trace their
relevance to the present day.
2. EARLY TRADEMARK PRACTICES IN INDIA
2.1 Ancient Era
Historically, trademarks derive their roots from ancient civilisations where traders would adopt distinctive
symbols, signatures, or badges to differentiate their products from others. In India, the historical
development of trademark law can be divided into three major periods: ancient, medieval, and modern.
Markings have even appeared on Indian pottery from the Indus Valley Civilization (ca. 2500 BCE) and
later the pottery of traders. Besides identification markers, these symbols functioned as a guarantee of
goodness. The Rigveda, one of the earliest works in Hindu tradition, contains a passage referring to signs
used with respect to livestock and other possessions.
2.2 Medieval Era
In the medieval era, when India was under numerous regimes, trademarks developed further. The Maurya
and Gupta empires granted royal charters or licenses for particular commodities that specified groups could
produce and sell. The charters also provided special marks or tokens to indicate the origin of products. The
Mughal Empire (from 16th to 18th century CE) built upon the idea of trademarks even further.

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The "Hakims" were appointed by Mughal Emperor Akbar to inspect the merchandise in circulation and
verify their quality. These officers also recorded trademarks to prevent forgery and protect customers.
2.3 Role of Temples and Guilds.
Temples and guilds, as well, next to artisans, were the main actors in early trademark-like practices.
Temple's economic centres "stamped" symbols on goods, certifying their quality while also adding a
spiritual dimension. The temples also functioned as mediators in commercial disputes, ensuring that the

ISBN: 978-81-957018-5-8
marks were used to demonstrate credibility. While guilds were associations of craftsmen and traders who
established their own marks to protect trade secrets and ensure quality control, cartels were syndicates that
grouped together to limit competition in the market. These guild marks were more than symbols; they
strongly embodied the reputation of the whole Guild and all its members.
3. EVOLUTION OF TRADEMARK DURING BRITISH RULE IN INDIA
3.1 Colonial Influence on Trademark Act
Trademarks have had a long-standing history of existence in India. However, the present-day structure for
trademark protection had emerged through the colonial era of British rule. They had inherited from the
British their legal system with trademark rights as part of their legal heritage. This was the first of several
such shifts that would change the way IPRs were understood and protected in India after that. Limited
Recognition of Trademarks at the Beginning of British Rule in India. Indeed, as trade and business
expanded, the protection of the rights of traders and makers became increasingly necessary. The United
Kingdom came to value trademarks for distinguishing between goods and protecting against fraud in
commerce.
The Indian Penal Code 1860 has sections prescribing punishment for counterfeiting the Marks. This was
crucial in laying the foundation for the statutory basis of trademark protection. The enforcement of the
Indian Merchandise Marks Act 1889 accomplished the watershed. This measure aimed to strengthen
trademark protection and fight against counterfeits. It enabled the registration of trademarks and conferred
an exclusive right in relation to that. This was huge as it now let Trademark owners go after infringers and
claim damages.
Registration of trademarks was not obligatory under the Merchandise Marks Act. But it did have one silver
lining for registered trademark owners: it created the right to use the ® symbol and an essential
presumption of validity in court. This attracted more manufacturers and traders to register, leading to
increased legal protection and brand reputation for owners. The Merchandise Marks Act continued to be
amended to enhance the rights given to trademarks. The changes included like higher penalties for
trademark infringement, such as imprisonment and fines. This is evident by Britain’s commitment to
protecting intellectual property rights in India.
3.2 The Trade Marks Act 1940
Trademark legislation also progressed through the first few decades of the 20th century. The Trade Marks
Act of 1940 (replacing prewar law) also brought in far-reaching reforms. It created the Registrar of
Trademarks post, laying down the conditions for trademark registration and protection.

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Some drawbacks of The Trade Marks Act 1940 are:

Outdated and inadequate provisions: Enacted in 1940, the Act needed to adjust for shifts in commerce
and branding. There was no provision to cover new forms of trademarks (such as sound marks, smell
marks and three-dimensional marks, collective marks), thereby limiting its scope of protection.
Lengthy registration process: The lengthy Act, with its concomitant registration formalities, led to many

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delays in obtaining trademarks. This was a major disadvantage for corporations, as it prevented them
from shielding their brand and speedily enforcing their rights.
Lack of international recognition: The Act should have offered provisions for the registration of
International Trademarks, posing a hindrance for foreigners to safeguard their trademarks in India.
This deterred foreign investments and curtailed the growth opportunities of Indian companies on a
global platform.
Inadequate enforcement mechanisms: However, the Act was without teeth because of a shortage of
enforcement measures, leaving trademark holders with few options to protect their rights from
infringers. Penalties needed to be stronger to act as a deterrent, as evidenced by counterfeit goods
comprising an estimated 8% of world trade, and the legal process to enforce trademark rights could be
lengthy and costly.
Lack of provisions for well-known trademarks: The Act lacked any specific protections for famous
trademarks — well-known marks with widespread recognition and strong reputations. This allowed the
unauthorized use of famous brands.
Limited provisions for domain names: The Act needed to address how domain names interacted with
trademark law adequately. This created ambiguity and difficulty in the enforcement of trademarks in
cyberspace.

In short, the deficiencies of the Indian Trademark Act 1940 made the effective protection and enforcement
of trademark rights difficult. These issues were partly alleviated by the coming of the Trademarks Act of
1999, and its introduction marked an overhaul in the Indian trademark laws.
The evolution of Trademark laws in India during the British colonial period was an important step towards
creating intellectual property rights. The enactment of statutory law brought into existence the Trademarks
Registry, and the acceptance of brand names as crucial to trade and commerce marked significant
developments that have led to the contemporary regime. However, such legal protection provided during
this time was largely geared towards safeguarding the interests of the British colonial authorities and the
local trading community. Indigenous trademarks and craftsmen have been ignored to a great extent, while
the rights to traditional knowledge and heritage were not sufficiently protected. Consequently, the British
colonisation of India led to the gradual development of trademark rights from their limited
acknowledgement towards a more structured legal setting. The passing of the law, setting up of the
Trademarks Registry, and acknowledgement of the trademark as an important tool for trade and
commerce played vital roles in developing the Trademark System in India. Yet, we do have to come to
terms with the shortcomings herein and keep fighting towards a complete marking and an all-embracing
trademark law in India.

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4. EVOLUTION OF TRADEMARK IN INDEPENDENT INDIA

Indian trademark law has come a long way since gaining Independence in 1947. Such evolution can be seen
in terms of the legislative changes at the domestic level and the international treaties and conventions that
have shaped this change. Indian adherence to international intellectual property treaties and conventions
has significantly influenced the Indian trademark regime regarding legislation practices and protection.
4.1 The Trade and Merchandise Marks Act, 1958 and its Drawbacks:

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The Trade and Merchandise Marks Act, 1958 was an important legislation pertaining to the protection of
trademarks in India. While it formed the bedrock of trademark law for many years, it had significant
shortcomings that needed updating and modernising.
The Act of 1958 had a significant drawback as its framework was anachronistic and did not rival the
evolving nature of trademark disputes. Residually, it fell short of provisions for emerging non-
traditional marks like sound marks and three-dimensional marks that have gained recognition in trade
now.
A further important constraint was no clearer provisions for safeguarding well-known trademarks.
This left room for trademark squatting and dilution of well-known trademarks, which were not given
the complete protection they needed.
The enforcement and litigation procedures under the 1958 Act were frequently unduly protracted,
which caused a delay in trademark registration and dispute resolution. This impeded the effectiveness
of the trademark system and annoyed trademark owners.
Additionally, the Act did not adequately address online trademark infringement and counterfeiting
issues, which have become increasingly prevalent in the digital age.
While the Trade and Merchandise Marks Act, 1958 laid the groundwork for trademark protection in India,
its drawbacks in terms of outdated provisions, insufficient protection for well-known marks, and
procedural complexities necessitated enacting the Trademarks Act 1999. The latter addressed many of these
issues, aligning India's trademark law with international standards and accommodating the evolving
trademark landscape.
4.2 TRIPS Agreement (1994)
Some important steps taken in this direction include India’s commitment under the Trade-Related Aspects
of Intellectual Property Rights (TRIPS) Agreement in 1994. TRIPS provides for strong trademark laws and
effective enforcement. India’s TRIPS Agreement commitments brought about many amendments to India’s
domestic trademark law.
4.3 Modernisation Through The Trade Marks Act 1999
Modernisation of the Indian trademark law under the Trade Marks Act 1999 has been important in
upgrading India's IPR regime at par with the global norms. This legislation has made tremendous progress
in making trademark registrations easier, securing the rights of trademark owners, and enhancing
enforcement tools.
Prior to the passage of the amended the Trade Marks Act 1999, the law of trademarks in India was
governed by a much older and outdated provision of law called the Trade Marks Act 1958. In short, this
antiquated legislation had a couple of problems, it needed to be keeping up with the challenges arising with
respect to trademarks.

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Demands for the enactment of a progressive and comprehensive law were felt with India's policy
orientation towards liberalisation and economic reforms.
The Trade Marks Act 1999 introduced several important features that helped align Indian trademark law
with international practices/standards. One of the most significant changes was in the form of a multi-class
filing system where an application can be filed for multiple classes of goods/services at one go. It is also

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much simpler for trademark owners to register and reduces paperwork. On top of this, The Trade Marks
Act introduced the idea of "Well-known Trademarks" and, as such, gives more protections to prominent
brand names even for dissimilar products/services. This provision has particularly assisted multinational
companies who have sought to guard their brands in India. This act made another significant amendment
and introduced another provision, the registration of service marks, to acknowledge and accept the
significance of the services sector in the Indian economy. This enables service providers to safeguard their
intellectual property, including trademarks, in particular brand names and slogans, from being used
without permission.
The Trade Marks Act of 1999 also constituted an Intellectual Property Appellate Board (IPAB) for hearing
appeal proceedings from the registering authority's decision. This has created an arena designed to address
trademark disputes, leading to shorter and swifter resolution of trademark troubles. The Trade Marks Act
brought in provisions for the enforcement of trademark rights — civil remedies, criminal sanctions, and
border measures. These provisions have bolstered the enforcement measures and served as disincentives for
trademark violations and piracy. The modernisation of trademark law in India via the passage of the Trade
Mark Act of 1999 benefits both businesses and trademark holders in India. All of this results in a faster,
more efficient, smoother registration process, stricter protections for well-known brands, and more robust
enforcement measures.
Nonetheless, it would require additional efforts to enhance the Indian trademark law landscape. And with
pending trademark applications being overwhelming, the wait for trademark registration remains to be one
key area of worry. Work is needed to speed up the registration procedure and decrease the long hours of
trademark registration. The reformation of trademark laws in India under the Trademark Act of 1999 has
brought about a drastic change and was a giant leap towards standardising the Intellectual Property rights
regime in India with international practice. While India has made significant strides with regard to IPR
protection, there remains much more ground to cover in improving the trademarks system and overall IPR
regime in India.
4.4 Ratification of Madrid Protocol (2013)
In 2013, India adopted the Madrid Protocol, a multilateral treaty facilitating trademark registration in
more than one territory via a solitary request. This step made India a more appealing venue for obtaining
trademark registration and thus simplified the process for foreign entities to secure the protection of their
marks within India.
4.5 Impact on Enforcement and Protection
International conventions impact the Indian Trade Marks Act in its Enforcement and Protective Measures.
India has reinforced its statutory legal regime for the protection of trademarks, anti-counterfeit, and piracy
laws to meet global standards on IPR enforcement.

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The evolution of Indian Trademark Law post- Independence has been highly influenced by international
Conventions and Agreements, especially TRIPS and the Madrid Protocol. These reforms have transformed
India’s trademark registry into one of the most efficient and user-friendly in the world. As India reforms its
trademark law in response to these changes, this adherence to international standards will serve as the
keystone for its intellectual property regime and help foster innovation and business growth, even on the

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global stage.
5. CONCLUSION
The story about the development of trademark law in India over centuries of commerce, culture and law is
fascinating to read. India is no exception when it comes to trademarks; from the local artisan's workshop to
an essential tool of trade and branding, it's been an enduring presence marking India's past. The use of seals
spread via the Silk Road and the Indian Ocean as India's trade network expanded and came to represent
the source of goods, an assurance of trustworthy merchants. They became bigger than mere icons. They
turned into the coin of the trusted realm in an age when you couldn't be sure anything would reach its
destination unbroken. Custodians of trademark-like practices were the temples and guilds that became
increasingly influential. Markets sprung up around temples, which were central to economies, and goods
were labelled with the temple's signs of recognition, giving them a sense of holiness and quality. While
guilds grouped artisans and merchants under a common sign, were vital in building trust within the
marketplace, as they were associated with their marks and the reputation of their organization. In the long
run, Britain's colonization became monumental for India's trademark history. In the race for power to
control trade in India, The British East India Company introduced its own marks & regulated the usage of
marks or signs on the goods. The infamous "East India Company Mark," with the letters "EIC," became
synonymous with British colonial control over Indian commerce. The fight for Indian independence
heralded times of revision and change. Legally, this ended with the passing of the Trade Marks Act 1940.
This was a landmark legislation in the formalization of trademark law in India. It brought India's first legal
framework for registering and enforcing trademarks, conforming India's practice with global norms.
Trademark law in India continued to evolve with the passage of the Trade Marks Act 1999, which
broadened the scope of trademarks to include service marks, certification marks and collective marks. A
comprehensive law that recognized the value of shielding well-established marks against newer risks in the
Digital Age, this statute was enacted. Over the past few years, India's trademark landscape has kept
changing. It shows the country's adherence to international treaties and conventions and its commitment to
align IP rights. For India's rapid economic growth, brand strategy, and consumer protection, the
trademark holds significance as an instrument of policy. Finally, India's tradition and history of trademark
laws is one of perseverance, adaptability and change. From prehistoric artisans to colonial negotiations and
the current infrastructures, the underlying aspect still needs to be modified. This is the idea of trademarks
as an instrument to create trust that must be protected. The historical rollercoaster ride of trademarks in
India reflects the durability of symbols, the tenacity of trade, and the importance of belief in an ever-
evolving world. With India making strides toward modernity, intellectual property rights law is bound to
play an enormous role in shaping the economy and culture, linking the past with progress today.

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6. REFERENCES
Mahawar, S. (2022) What is a trademark, iPleaders. Available at: https://blog.ipleaders.in/what-is-a-
trademark/ (Accessed: 24 August 2023).
Kapoor, S. The trademark jurisprudence, Legal Service India - Law, Lawyers and Legal Resources.
Available at: https://www.legalserviceindia.com/legal/article-8482-the-trademark-jurisprudence.html

ISBN: 978-81-957018-5-8
(Accessed: 27 August 2023).
Desai, D.R., 2012. From trademarks to brands. Fla. L. Rev., 64, p.981.
Faroqhi, S., 2019. The Ottoman and Mughal Empires: Social history in the early modern world.
Bloomsbury Publishing.
Diamond, S.A., 1983. The historical development of trademarks. Trademark Rep., 73, p.222.
Bhardwaj, T., 2023. The Evolution of Trademark Laws in India: An Analysis. J. Pat. & Trademark Off.
Soc'y, 103, p.227.
Bhardwaj, T., 2023. The Evolution of Trademark Laws in India: An Analysis. J. Pat. & Trademark Off.
Soc'y, 103, p.227.
Negi, A. and Thakuria, B.J., 2010. Principles governing damages in trademark infringement.
Mercer, J., 2010. A mark of distinction: Branding and trade mark law in the UK from the 1860s. Business
History, 52(1), pp.17-42.
Desai, D.R., 2012. From trademarks to brands. Fla. L. Rev., 64, p.981.
Wilkins, M., 1992. The neglected intangible asset: The influence of the trade mark on the rise of the
modern corporation. Business History, 34(1), pp.66-95.
Tomar, V., 2009. Trademark licensing & franchising: Trends in transfer of rights.
Mittal, R., 2010. Analysis of the mysterious element of quality control in trademark licensing.
Mishra, R., 2021. The impact of trips agriment on trademarks Law (Doctoral dissertation).
Paul, T.K. and Thilak, J., 2004. Reincarnation of Trademark Law in India. J. Pat. & Trademark Off.
Soc'y, 86, p.237.
Nikzad, R., 2013. Trademark treaties and international trade. International Journal of Intellectual
Property Management, 6(3), pp.233-246.
Shukla, T.N. and Chatterjee, C., 2012. Evolution, Status, Issues and Implementation of LPR with Special
Reference to India. Kushagra International Management Review, 2(1), p.39.
Sharma, D., 2013. India's Accession to Madrid Protocol: Pavement for Global Trademark Protection.
Available at SSRN 2315499.
Mishra, R., 2021. The impact of trips agriment on trademarks Law (Doctoral dissertation).

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ANALYSIS OF THE CSR PROVISIONS OF THE COMPANIES ACT, 2013, IN

PARTICULAR REFERENCE TO PHARMACEUTICAL COMPANIES

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3
CHAPTER

Abstract:
Author: Sanidhya
The resources of the society are limited and hence, every
Mukund, Student at
participant of the society must use it in such a manner that it not
Symbiosis Law
only benefits the user, but also contributes to the betterment of
School, NOIDA
society as a whole. In recognition of this idea, legislations
governing corporations across the globe, including the Indian
BRIEF: Companies Act make provisions for what is known as “Corporate
Abstract Social Responsibility”. These regulations impose obligations
1.Introduction upon business houses to allocate a part of their earnings to social
2.What is CSR according to the 2013 causes. However, it is noticed that in recognition of the inherent
act and the associated rules? benefits to humankind that the activities of pharmaceutical
3.To whom are CSR provisions companies have, CSR rules interact with them in a very unique
applicable? manner. This paper analyses the CSR provisions of the Indian
4.How are CSR projects Companies Act and finds out what special provisions are in place
implemented? for pharmaceutical companies.
5.What are the mechanisms that Keywords: CSR, Pharmaceutical companies, Companies Act
ensure compliance? 2013, compliance
6.Impact on Pharmaceutical
companies 1. Introduction:
7.Instances of CSR in the In India, Corporate Social Responsibility as a concept was
pharmaceutical sector in India introduced in legislation for the first time in the 2013
8.Conclusion amendment of the companies act. Section-135 of the 2013 act
9.Endnote lays down stipulations that corporations are required to follow
with respect to corporate social responsibility.
This section, along with schedule-VII of the act and the Companies (Corporate Social Responsibility)
Rules, 2014 completes the legal framework in India as far as the governance of CSR is concerned. Section-
135 has been further fortified by means of the 2019 and 2020 amendments.

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The primary idea behind the concept of CSR is the fact that business organizations utilize the limited
resources of the society for their economic gains. Since they derive benefits from it, there must be an
obligation on them to give back to society. This is exactly what CSR legislations aim to ensure. CSR is also
beneficial for the business organization as it helps them build their brand. However, a key problem is the
fact that corporations often see CSR as an unwanted expenditure, causing them to find and abuse

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loopholes that aid the evasion of their CSR duties. The 2019 amendment has introduced measures that are
aimed at ensuring greater compliance. Things can be further improved by emulating the U.K model of a
high degree of collaboration between the government and the industries with the aim of working on
projects with social objectives.
Due to their strategic importance in eradicating diseases, ensuring the overall health and wellness of the
nation and the creation of new innovations and developments in the area of medical science, the CSR
initiatives of pharmaceutical companies are especially crucial for the nation. This research talks about the
CSR legislations in India and how they contain special provisions for pharmaceutical firms.

2. What is CSR according to the 2013 act and the associated rules?
Section-2(1)(d) of the Companies (Corporate Social Responsibility Policy) Rules, 2014 defines CSR as the
activities that a company undertakes in order to comply with the provisions of Section-135 of the 2013 act.
It is further specified that it does not include those activities that are a part of the normal conduct of
business or activities undertaken for the benefit of the company’s employees. It also excludes donations
made directly or indirectly to political parties and activities (besides training of Indian national/
international level sports personnel) undertaken abroad from the ambit of CSR. Things done by the
company for the benefit of its employees or for deriving marketing benefits of its products or services are
not considered to be under the ambit of CSR either.
A notable point here is that although the rule specifies that any activity that falls under the ambit of the
normal course of business of the firm cannot be labeled a CSR initiative, exemptions were provided for the
financial years 2020-21, 2021-22 and 2022-23 to such companies that were working on the development of
vaccines, medicines and machines as a remedy to COVID-19. These exemptions were given if the research
and development was conducted in collaboration with the institutions mentioned in schedule-VII of the
2013 act and if disclosures about this research were made in the annual board reports of the company.
These exceptions would mean that a company researching on a COVID-19 antidote, even in the normal
conduct of business could show expenditure incurred on this as CSR spending. A non-exhaustive list of
activities that fall under the ambit of CSR is also given in Schedule-VII of the Companies Act, 2013. This
includes activities for the promotion of healthcare, contributions made to STEM projects of the
government and government agencies and activities towards combatting HIV-AIDS, Malaria and other
diseases.

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3. To whom are CSR provisions applicable?

Section-135(1) of the 2013 act lays down certain criteria that a company has to have met in the immediately
preceding financial year in order to have the CSR provisions apply to it. These criteria specify that the
corporation must have a net worth of Rs. 500 crore or higher, a turnover of Rs. 1000 crore or higher, or a
pre-tax profit of Rs. 5 crore or more. A company fulfilling any one of these criteria is required to comply

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with CSR provisions of the act, unless it ceases to meet them for 3 consecutive years. These criteria are not
limited to companies incorporated in India; they are also applicable to foreign companies having Indian
offices and to Non-Profit Organizations as well.

4. How are CSR projects implemented?

The Implementation of CSR projects is done by means of a CSR committee, which needs to be constituted
by all companies that meet the criteria specified in section-135(1). The composition of this committee is
specified in Rule 5 of the 2014 CSR rules. Section-135(9) specifies the criteria for companies that are not
required to constitute a CSR committee and can discharge CSR functions through their board of directors.
Section-135(3) imposes the responsibility on this CSR committee to come up with a CSR policy for the
company. This policy should include the CSR activities that the company should undertake in accordance
with schedule-VII of the act. The policy along with the CSR expenditure to be undertaken gets
recommended by the committee to the board of directors. The board is then required to approve it and to
disclose it in the annual board report, in accordance with rule-8(1). The committee is also responsible for
keeping a track on the CSR activities of the company, monitoring them at regular intervals.

5. What are the mechanisms that ensure compliance?

Section-135(5) of the 2013 act casts a duty upon the board of directors of the companies that meet the
criteria under section-135(1) to ensure that in every financial year, the company spends a minimum of 2 %
of the average profits earned by it in the 3 prior financial years on CSR activities. Any amount beyond this
2% spent on CSR activities can be offset towards complying with these requirements for three subsequent
financial years. According to section-135(6), in case the funds allocated to a particular CSR project remain
unspent, the corporation is required to transfer them to the ‘’Unspent Corporate Social Responsibility”
Account within 30 days of the financial year ending. If the funds still remain unspent 3 years from such
transfer, they should be transferred to an account specified in schedule-VII of the 2013 act, within 30 days
from the date of completion of 3 years. The board of directors also needs to specify reasons for the amount
remaining unspent.
Rule-8(3)(a) of the 2014 lays down stipulations for companies having a CSR obligation of Rs. 10 crore or
greater in 3 prior financial years. They are required to undertake impact assessments of their CSR projects
that have been completed at least one year on the date of the assessment and have involved an outlay of
one crore or more. This report needs to be attached to the CSR report as an annexure and also needs to be
placed before the board. The rule also specifies the limit on the expenditure that can be incurred on
conducting this report.

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Section-135(8) confers the central government with the powers to direct the corporation to alter their
conduct in a particular manner if such directions are necessary for ensuring compliance with CSR
provisions. Further, stricter provisions for compliance with sections 135(5) and 135(6) by means of Section
135(7), which prescribes a fine that will be imposed not only on the company, but also its directors in case
of default.

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6. Impact on Pharmaceutical companies:
By analyzing the definition of CSR given under Section-2(1)(d) of the 2014 rules and the 7th schedule, it is
apparent that the activities generally undertaken by pharmaceutical companies are those that fall under
activities labeled as CSR. Since they operate in the healthcare industry, it is under the normal course of
business that they invest on development of vaccines, drugs and medical equipment. Their activities can
often be construed as projects towards the promotion of healthcare and eradication of disease. This would
mean that when a pharmaceutical company undertakes research and development on drugs or other cures
pertaining to diseases, they would not have to incur additional expenses towards CSR, as this expenditure
itself would come under the ambit of CSR. A study conducted in 2014 on the top 108 pharmaceutical
companies conducted an analysis of the correlation between CSR spending and the profitability and
growth of the firm. It culminated with the findings that CSR has a substantial and positive impact on the
growth and profitability of pharmaceutical firms. When pharmaceutical companies involved themselves in
CSR related activities, they were found to have greater profitability and growth rates. They were also found
to have a competitive advantage over firms that did not undertake CSR. Another study has found that
pharmaceutical firms also benefit from CSR activities as far as the reputation of the brand is concerned as
this builds goodwill.

7. Instances of CSR in the pharmaceutical sector in India:

Sun Pharma, a pharmaceutical company has CSR initiatives in various areas such as health, education and
health awareness. They have worked with local bodies and NGOs to propagate education among tribal
communities by means of village schools all over the country. They have also donated medicines and
medical equipment to hospitals situated near their manufacturing units.
During the COVID-19 outbreak in 2020, Mankind Pharma, a leading pharmaceutical company donated
Rs. 51 crore to the Chief Minister relief funds and had also donated PPE kits, ventilators and medicines to
states with higher instances of COVID-19.
Aurbindo Pharma Pvt. Ltd. spent 2.6% of its profits on CSR initiatives in FY 2019-20. They have
established a trust for the implementation of their CSR projects. Their CSR activities encompass a wide
range of areas, positively impacting the lives of 600,140 individuals. They are also setting up a cancer
hospital at Hyderabad that aims to provide cancer treatment free of cost to the needy.
Dr. Reddys Labs. Ltd. undertook a CSR expenditure of Rs. 27.53 crores in 2018-19, most of which was
towards the generation of employment and income in rural as well as urban areas by promotion and
creation of livelihood opportunities.

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GSK Pharmaceuticals Ltd. came up with an unorthodox initiative wherein they introduced a round the
clock helpline number for counseling and the distribution of awareness and information on HIV-AIDS.

8. Conclusion:
Thus, there is an elaborate scheme of legislations pertaining to CSR in India, built by the Companies Act,

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2013 and the Companies (CSR) rules, 2014. They have detailed definitions of what constitutes CSR
activities, what categories of companies need to comply with them and how should CSR be implemented. It
also has certain provisions that are aimed at ensuring compliance with these provisions. It is apparent that
the definitions and classifications of CSR activities consider pharmaceutical companies to be of specific
importance due to the fact that their activities are beneficial to the society as a whole. The activities that
pharmaceutical companies undertake even under their normal course of business can also be brought under
the ambit of CSR. Besides this, studies have also found that CSR benefits pharmaceutical companies in
terms of profitability, growth rate and public image. In India, there are multiple CSR initiatives that have
been implemented by pharmaceutical companies, few of which have been described above.

Endnotes:
1 Mayashree Acharya, Corporate Social Responsibility Under Section 135 of Companies Act 2013,
CLEARTAX (Dec. 11, 2023, 10:23 AM), https://cleartax.in/s/corporate-social-responsibility.
2 Mayashree Acharya, Corporate Social Responsibility Under Section 135 of Companies Act 2013,
CLEARTAX (Dec. 11, 2023, 10:23 AM), https://cleartax.in/s/corporate-social-responsibility.
3 Rishi Agrawal, Understanding Compliance Under Corporate Social Responsibility, TEAM LEASE REG
TECH (Dec. 11, 2023, 12:00 PM), https://www.teamleaseregtech.com/blogs/14/understanding-compliance-
under-corporate-social-responsibility.
4 Liza Kinnear, Does Government Have a Role to Play in Corporate Social Responsibility?,
GIVINGFORCE (Dec. 11, 2023, 12:34 PM), https://www.givingforce.com/blog/does-government-have-a-
role-to-play-in-corporate-social-responsibility.
5 The Companies (Corporate Social Responsibility Policy) Rules, 2014, § 2(1)(d) (India).
6 The Companies (Corporate Social Responsibility Policy) Rules, 2014, § 2(1)(d) (India).
7 The Companies (Corporate Social Responsibility Policy) Rules, 2014, § 2(1)(d) (India).
8 Ministry of Corporate Affairs, General Circular No. 14/2021 - Frequently Asked Questions (FAQs) on
Corporate Social Responsibility (CSR).
9 Ministry of Corporate Affairs, General Circular No. 14/2021 - Frequently Asked Questions (FAQs) on
Corporate Social Responsibility (CSR).
10 The Companies Act, 2013, Schedule-VII, No.18, Acts of Parliament, 2013 (India).
11 The Companies Act, 2013, § 135(1), No. 18, Acts of Parliament, 2013 (India).
12 The Companies Act, 2013, § 135(1), No. 18, Acts of Parliament, 2013 (India).
13 The Companies Act, 2013, § 135(1), No. 18, Acts of Parliament, 2013 (India).
14 The Companies (Corporate Social Responsibility Policy) Rules, 2014, § 5 (India).
15 The Companies Act, 2013, § 135(9), No. 18, Acts of Parliament, 2013 (India).

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16 The Companies Act, 2013, § 135(3), No. 18, Acts of Parliament, 2013 (India).
17 The Companies Act, 2013, § 135(3), No. 18, Acts of Parliament, 2013 (India).
18 The Companies Act, 2013, § 135(3), No. 18, Acts of Parliament, 2013 (India).
19 The Companies (Corporate Social Responsibility Policy) Rules, 2014, § 8(1) (India).
20 The Companies Act, 2013, § 135(3), No. 18, Acts of Parliament, 2013 (India).
21 The Companies Act, 2013, § 135(5), No. 18, Acts of Parliament, 2013 (India).

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22 The Companies Act, 2013, § 135(5), No. 18, Acts of Parliament, 2013 (India).
23 The Companies Act, 2013, § 135(6), No. 18, Acts of Parliament, 2013 (India).
24 The Companies Act, 2013, § 135(6), No. 18, Acts of Parliament, 2013 (India).
25 The Companies (Corporate Social Responsibility Policy) Rules, 2014, § 8(3)(a) (India).
26 The Companies (Corporate Social Responsibility Policy) Rules, 2014, § 8(3)(a) (India).
27 The Companies (Corporate Social Responsibility Policy) Rules, 2014, § 8(3)(a) (India).
28 The Companies Act, 2013, § 135(8), No. 18, Acts of Parliament, 2013 (India).
29 The Companies Act, 2013, § 135(7), No. 18, Acts of Parliament, 2013 (India).
30 The Companies (Corporate Social Responsibility Policy) Rules, 2014, § 2(1)(d) (India).
31 Abahy Jain, Impact of CSR activities on profitability and growth rate of Indian Pharmaceutical
Companies, SRCC (Dec. 12, 2023, 9:29 AM), https://www.srcc.edu/system/files/Pg%2085-
95%20%20Abhay%20Jain-
%20Impact%20of%20CSR%20Activities%20on%20Profitability%20and%20Growth%20of%20Indian%20
Pharmaceutical%20Companies%20An%20Empirical%20Examination.pdf .
32 Abahy Jain, Impact of CSR activities on profitability and growth rate of Indian Pharmaceutical
Companies, SRCC (Dec. 12, 2023, 9:29 AM), https://www.srcc.edu/system/files/Pg%2085-
95%20%20Abhay%20Jain%20Impact%20of%20CSR%20Activities%20on%20Profitability%20and%20Gro
wth%20of%20Indian%20Pharmaceutical%20Companies%20An%20Empirical%20Examination.pdf.
33 Abahy Jain, Impact of CSR activities on profitability and growth rate of Indian Pharmaceutical
Companies, SRCC (Dec. 12, 2023, 9:29 AM), https://www.srcc.edu/system/files/Pg%2085-
95%20%20Abhay%20Jain-
%20Impact%20of%20CSR%20Activities%20on%20Profitability%20and%20Growth%20of%20Indian%20
Pharmaceutical%20Companies%20An%20Empirical%20Examination.pdf.
34 Abhilasha Nagarajachari, Madhu Tyagi, A study on impact of csr on financial performance of companies
in india with respect to fmcg and pharmaceutical sector, JOURNAL OF THE ASIATIC SOCIETY OF
MUMBAI (Dec. 12 2023, 16:32 PM),
https://www.researchgate.net/publication/357736820_A_STUDY_ON_IMPACT_OF_CSR_ON_FINAN
CIAL_PERFORMANCE_OF_COMPANIES_IN_INDIA_WITH_RESPECT_TO_FMCG_AND_PHA
RMACEUTICAL_SECTOR .
35 Sreeja Nair, Corporate Social Responsibility of Pharmaceutical Companies in India,
INTERNATIONAL RESEARCH JOURNAL OF BUSINESS AND MANAGEMENT (Dec. 12, 2023,
14:23 PM), https://www.allresearchjournal.com/archives/2016/vol2issue10/PartC/2-9-106-542.pdf.

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36 Mankind Pharma pledge to contribute Rs 51 crore for Covid-19 relief fund, CSRBOX (Dec. 12, 2023,
16:45 PM), https://csrbox.org/India_CSR_news_Mankind-Pharma-pledge-to-contribute-Rs-51-crore-for-
Covid-19-relief-fund_570.
37 Hency Thacker, Five Pharmaceutical Companies that take CSR Seriously, THE CSR JOURNAL (Dec
12, 2023, 17:00 PM), https://thecsrjournal.in/pharmaceutical-pharma-companies-india-csr-corporate-
social-responsibility/.

ISBN: 978-81-957018-5-8
38 Hency Thacker, Five Pharmaceutical Companies that take CSR Seriously, THE CSR JOURNAL (Dec
12, 2023, 17:00 PM), https://thecsrjournal.in/pharmaceutical-pharma-companies-india-csr-corporate-
social-responsibility/.
39 Deborah Waterhouse, HIV, GSK.COM (Dec 12, 2023, 17:15 PM), https://www.gsk.com/en-
gb/innovation/therapeutic-areas/hiv/ .

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DECODING DECENTRALIZATION: ASSESSING THE ACTUAL IMPACT OF

ADMINISTRATIVE DEVOLUTION ON LOCAL GOVERNANCE IN GHANA

ISBN: 978-81-957018-5-8
4
CHAPTER

Abstract
Authors:
Decentralization in Ghana represents a significant governance
Nana Charles Osei-Bonsu, Senior
shift aimed at redistributing power and decision-making authority
Lecturer and Dean, Dept. of Law,
from central government institutions to local entities. This study
KAAF University College, Ghana.
critically examines the tangible effects of administrative
devolution on local governance in Ghana. Through a
Dr.Rajesh Kumar, Associate
comprehensive analysis of policy frameworks, stakeholder
Professor,Governance and
engagement, equity considerations, and accountability
Development Studies, Bule Hora
mechanisms, the study evaluates the extent to which
University, Ethiopia.
decentralization has translated into improved local governance
outcomes. This study, including policy analysis, stakeholder
Prof. Pradeep Sharma, Dept. of Law,
interviews, and case studies, the research assesses the clarity and
KAAF University College, Ghana.
inclusivity of decentralization policies. Clear policy objectives,
robust legal frameworks, and inclusive stakeholder engagement
BRIEF:
emerge as key determinants of effective decentralization
Abstract
implementation. Equity considerations and accountability
1.Introduction
mechanisms play crucial roles in ensuring that decentralization
1.1Decentralization and
efforts benefit all segments of the population and are carried out
Administrative Devolution in Ghana
transparently and responsively. Furthermore, the study
1.2Administrative Devolution in
investigates citizens' awareness of their participation rights within
Ghana
decentralized governance structures. It identifies factors
1.3Administrative devolution in
influencing awareness levels, such as education, access to
Ghana include
information, and community engagement, while also examining
2.Overview of Decentralization Policies
persistent challenges, including limited civic education and
in Ghana
political apathy.
3.Contextualization of the Study
3.1Historical Perspective

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By elucidating the strengths, weaknesses, opportunities, and

4.Legislative and Policy Framework: threats associated with Ghana's decentralization process, this
4.1Institutional Arrangements research provides valuable insights for policymakers,
4.2Political Dynamics practitioners, and scholars. Ultimately, it contributes to the
4.3Socio-economic Context

ISBN: 978-81-957018-5-8
ongoing discourse on decentralization's role in fostering inclusive
5.Statement of the research problem development, responsive governance, and citizen empowerment in
and significance of the study Ghana and beyond. Lastly, the study investigates citizens'
5.1Objectives of Study awareness of participation rights within Ghana's decentralized
5.2Policy Framework governance framework, highlighting variations influenced by
5.3Stakeholder Engagement factors such as education, access to information, and community
5.4Equity Considerations engagement. Despite ongoing challenges such as limited civic
5.5Accountability Mechanisms education, access obstacles, and political apathy, efforts to
5.6Awareness Levels among Citizens enhance awareness and remove structural barriers hold promise
5.7Factors Influencing Awareness for nurturing an informed, empowered citizenry capable of
6.Challenges and Opportunities actively engaging with decentralized governing systems.
7.Challenges and Barriers Identifying and addressing these hurdles are crucial steps towards
8.Conclusion harnessing the full potential of decentralized governance to
advance inclusive development and democratic participation in
Ghana.
Keywords; Decentralization, Governance, Local governance. Equity considerations Stakeholder
1.Introduction:
Decentralization is a significant worldwide governance approach that aims to transfer authority and
influence from central government organizations to local levels of government. Decentralization has been a
key component of governance reforms in Ghana, especially administrative devolution, which aims to
strengthen local governance systems and empower communities. Nonetheless, a detailed analysis of
decentralization's true effects on local government dynamics is required to determine its efficacy in Ghana.
This study looks at the specifics of administrative decentralization and how it affects local governance in
Ghana. By synthesizing existing, this study aims to provide a comprehensive evaluation of the outcomes of
decentralization efforts. Through a critical analysis of literature and theoretical frameworks, this paper
seeks to shed light on the successes, challenges, and implications of administrative devolution for local
decision-making processes, service delivery mechanisms, and citizen participation in Ghanaian
communities.
Several countries that seek to advance local development, improve service delivery, and cultivate
democratic governance have embraced decentralization as a governance tactic. The shift from a centralized
governance system to a more decentralized framework has important ramifications for local governance,
community development, and democratic engagement in Ghana, a nation known for its progressive
decentralization changes since the 1980s. The Local Government Act of 1993 and other reforms intended to
shift political, administrative, and financial duties to the district level serve as the cornerstones of Ghana's
decentralization movement.

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Although these reforms represent a paradigm shift in favour of empowering local authorities and
encouraging participatory governance, there are still unanswered concerns about how administrative
devolution would really affect community development outcomes, service delivery methods, and local
government structures.
This study, entitled "Decoding Decentralization: Assessing the Actual Impact of Administrative

ISBN: 978-81-957018-5-8
Devolution on Local Governance in Ghana," seeks to delve into the complexities of Ghana's
decentralization journey. By critically assessing the implications of administrative devolution on local
governance processes, the study aims to elucidate the challenges, opportunities, and transformative
potentials inherent in Ghana's decentralized governance framework.The significance of this study lies in its
potential to inform policy formulation, enhance institutional capacities, and foster accountable, responsive,
and inclusive governance at the grassroots level. Through a comprehensive analysis of administrative
structures, governance dynamics, and community perspectives, this study endeavours to contribute to the
broader discourse on decentralization, democratization, and development in Ghana and similar contexts
globally. This research aspires to offer valuable insights, provoke critical reflections, and catalyze informed
debates on the future trajectory of decentralization and local governance in Ghana.

1.1 Decentralization and Administrative Devolution in Ghana

Decentralization in Ghana refers to the deliberate policy and institutional reforms aimed at transferring
political, administrative, and fiscal responsibilities from the central government to sub-national levels,
particularly district assemblies and local authorities. This shift, which gained momentum in the 1980s and
1990s, seeks to enhance local governance, promote participatory democracy, and improve service delivery
by bringing decision-making closer to the people. The decentralization process in Ghana is anchored in
legislative frameworks such as the Local Government Act of 1993, which outlines the structures, functions,
and powers of district assemblies and establishes the legal basis for administrative and fiscal
decentralization.

1.2 Administrative Devolution in Ghana:

In Ghana, administrative devolution is a subtype of decentralization that focuses on the handing over of
administrative duties, authority, and responsibilities from national institutions to district assemblies and
local governments. Delegating authority in domains including public planning, infrastructure construction,
resource management, and public service delivery is necessary to improve efficiency, responsiveness, and
accountability at the local level.

1.3 Administrative devolution in Ghana include:

1. Local Governance Structures: To supervise local government and service provision, district assemblies,
metropolitan, municipal, and district chief executives (MMDCEs), and sub-district organisations were
established.

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2. Resource Allocation: District assemblies get funds to finance local development initiatives in accordance
with community interests through fiscal decentralisation mechanisms such as the District Assemblies
Common Fund (DACF).
3. Community Participation: Through town hall meetings, open forums, and community-driven
development projects, the promotion of community involvement and participation in decision-making
processes is carried out.

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4. Capacity Building: Measures taken to improve local authorities' ability to carry out development projects
and provide services by providing them with institutional support, technical help, and training.
Decentralization and administrative devolution in Ghana represent strategic initiatives aimed at fostering
local autonomy, improving governance efficiency, and empowering communities to participate actively in
shaping their development trajectories. While progress has been made in institutionalizing decentralized
governance structures and processes, challenges persist, necessitating continuous reforms, capacity
building, and stakeholder engagement to realize the full potential of administrative devolution in Ghana.
2. Overview of Decentralization Policies in
Ghana: In Ghana, decentralisation has been a
key component of governance reforms that
move authority and decision-making from the
national to local levels of government. The
inception of decentralisation strategies in
Ghana dates back to the early 1980s, and they
gained substantial impetus with the 1993
implementation of the Local Government Act.
This law gave rise to the nation's local
governance frameworks and prepared the way
for administrative devolution. Ghana's
decentralisation is largely dependent on the
creation of Metropolitan, Municipal, and
District Assemblies (MMDAs), which are local
government entities in charge of grassroots
development and service delivery. These assemblies have a great deal of authority over infrastructure
development, income mobilisation, and the delivery of basic services like healthcare and education.
Furthermore, initiatives to advance local democracy and citizen participation through methods like
participatory budgeting, decentralised planning, and assembly member elections characterise
decentralisation in Ghana Enhancing responsiveness, accountability, and openness in local governance
processes is the goal of these initiatives.However, despite the strides made in decentralization, challenges
persist, including issues related to capacity building, resource allocation, and intergovernmental relations.
Ensuring the effective implementation of decentralization policies requires addressing these challenges
while fostering collaboration between central and local government entities to achieve common
developmental goals. Overall, decentralization policies in Ghana reflect a commitment to strengthening
local governance structures, empowering communities, and promoting sustainable development at the
grassroots level.

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3. Contextualization of the Study

3.1 Historical Perspective:
Ghana's governance structure was historically primarily centralized, with the central government holding
the reins of power and making decisions. However, as part of larger agendas for governance and
development, Ghana started implementing decentralisation reforms after realising the shortcomings of this
centralised model in meeting local needs, encouraging participatory democracy, and guaranteeing equitable

ISBN: 978-81-957018-5-8
development.

4. Legislative and Policy Framework:

The legal and policy frameworks guiding decentralisation in Ghana are based on significant legislative
provisions such as the Local Government Act of 1993. This Act, supplemented by subsequent reforms and
policy directives, defines the roles, functions, and powers of district assemblies, metropolitan, municipal,
district chief executives (MMDCEs), and other local governance structures, providing the institutional
framework for administrative devolution.

4.1 Institutional Arrangements:

The institutional architecture of Ghana's decentralized governance system encompasses a multi-tiered
structure-comprising national, regional, and district levels. At the district level, district assemblies play a
pivotal role in local administration, service delivery, and community development, facilitated by various
decentralized departments and agencies operating within the framework of administrative devolution.

4.2 Political Dynamics:

Political variables, such as electoral processes, political party dynamics, and intergovernmental
interactions, have a considerable impact on the implementation and effects of administrative devolution in
Ghana. The election of MMDCEs, political party alignments at the local level, and interactions between
national and local political players all have an impact on the governance environment, influencing decision-
making processes, resource distribution, and accountability systems.

4.3 Socio-economic Context:

The socio-economic context, characterized by demographic trends, economic disparities, urban-rural
divides, and cultural dynamics, shapes the implementation and impact of administrative devolution.
Addressing socio-economic inequalities, promoting inclusive development, and harnessing local resources
and capacities are critical considerations within Ghana's decentralized governance framework. In,
contextualizing this study within the Ghanaian governance framework provides a holistic understanding of
the historical, legislative, institutional, political, and socio-economic dimensions shaping administrative
devolution and local governance dynamics in Ghana. By situating the study within this multifaceted
context, stakeholders can gain insights into the complexities, challenges, opportunities, and transformative
potentials inherent in Ghana's decentralized governance landscape.

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5. Statement of the research problem and significance of the study.

This study is of paramount significance for several reasons. Firstly, it contributes to the existing body of
knowledge on decentralization by providing a nuanced understanding of its impact on local governance in
the specific context of Ghana. Secondly, the findings will offer valuable insights to policymakers,
governmental agencies, and local authorities, aiding in the improvement of decentralization policies and

ISBN: 978-81-957018-5-8
practices. Moreover, the study is crucial for promoting transparency and accountability in governance
structures, fostering citizen engagement, and ultimately enhancing the overall socio-economic development
at the local level in Ghana. By decoding the complexities of administrative devolution, this research aims to
provide actionable recommendations that can positively influence the trajectory of decentralization
initiatives in the country.

Figure-1 Map of the study area.

5.1 Objectives of Study
First Objective is to examine the legal and policy framework supporting citizen participation in local
governance. Here Citizen Participation in local governance is supported by a comprehensive legal and
regulatory framework aimed at empowering residents in decision-making processes that have a direct
impact on their communities. This framework includes a variety of laws, rules, and policies that govern the
scope and processes of public participation at the municipal level. One important feature of this framework
is the legislative provision for establishing procedures like participatory budgeting, community forums, and
citizen advisory committees.

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These tools allow residents to submit input, feedback, and suggestions on a variety of topics, including
budget allocations and infrastructure development projects. For example, in many jurisdictions, municipal
governments are legally required to hold public hearings or discussions before making major decisions.
Here, A complex legal and policy framework that strives to give citizens a voice in decisions that directly
impact their communities supports citizen participation in local governance. This framework includes a

ISBN: 978-81-957018-5-8
number of laws, rules, and policies that control how much and how through which citizens participate in
local government. A crucial feature of this structure is the legal clause that establishes mechanisms like
citizen advisory committees, community forums, and participatory budgeting . People can offer opinions,
criticisms, and recommendations on anything from infrastructure development projects to budgetary
allocations through these channels. In numerous jurisdictions, local governments are required by law to
convene public hearings or consultations prior to making consequential decisions .
There are also policies in place to promote transparency and accountability in municipal government,
which improves citizen engagement. Laws mandating the public disclosure of government activities,
financial statements, and decision-making procedures help to foster trust between citizens and local
governments. Furthermore, regulations fostering open data projects and digital platforms provide better
accessibility to information, allowing citizens to participate more effectively.
In addition, the legal framework frequently includes provisions that promote civic education and awareness
programs. These programs enable residents to actively participate in local governance processes by
educating them about their rights, duties, and engagement opportunities. This component of the
framework is critical for ensuring that participation is inclusive and reflective of varied community
interests. The legal and policy framework that encourages citizen participation in local government is
critical to promoting democracy, accountability, and community development. This framework improves
decision-making quality and enriches local communities' social fabric by opening up doors for public
interaction, fostering transparency, and facilitating civic education.
The second goal of the study is to assess the clarity and inclusion of policies. Decentralisation, particularly
in the context of governance, is a complicated process that involves transferring power, resources, and
decision-making authority from central government institutions to local bodies. In Ghana, decoding
decentralisation entails comprehending the policies and processes in place to implement and manage the
process. This review aims to analyse the clarity and inclusivity of Ghana's decentralisation policies, with an
emphasis on key factors such as policy objectives, frameworks, stakeholder participation, equitable
concerns, and accountability systems.
Clarity of objectives in decentralisation policies is critical for guiding implementation efforts and evaluating
their efficacy. These objectives should clearly describe the expected benefits of decentralisation measures,
such as better local governance, improved service delivery, and increased citizen participation. Clear
objectives help policymakers, practitioners, and public grasp the aim and expected outcomes of
decentralized governance activities .
5.2 Policy Framework:
Effective decentralisation requires a clear policy foundation. This framework should explain the legal and
institutional mechanisms for implementing decentralisation, such as the roles and responsibilities of various
levels of government, resource allocation, and decision-making processes.

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A coherent policy framework brings clarity and coherence to decentralisation activities, reducing
uncertainty and conflict among stakeholders.

5.3 Stakeholder Engagement:

Inclusive stakeholder participation is essential for ensuring that decentralisation policies represent the

ISBN: 978-81-957018-5-8
population's different demands and viewpoints. Effective stakeholder involvement entails actively involving
a diverse range of actors, such as government officials, civil society organisations, community leaders, and
marginalised groups, in the design, execution, and evaluation of decentralisation efforts. Policymakers can
improve the legitimacy and sustainability of decentralisation efforts by gathering feedback from a variety of
stakeholders.

5.4 Equity Considerations:

Decentralisation initiatives must include equity to guarantee that benefits are dispersed evenly across
regions and populations. This entails recognising and addressing inequities in access to resources, services,
and opportunities for various populations. Policies aimed at fostering equity may involve specific actions to
assist marginalised communities, such as affirmative action programmes or need-based resource allocation
formulae.

5.5 Accountability Mechanisms:

Effective accountability systems are necessary to ensure that decentralisation policies are implemented in a
transparent and responsive manner. These procedures should include measures for monitoring and
assessment, oversight by independent institutions, and ways for citizens to hold government officials
accountable for their activities. Transparency and accountability foster confidence between citizens and
government institutions, bolstering the legitimacy of decentralisation efforts.
Finally, policies relating to political decentralisation in Ghana must be clear and inclusive in order to
promote effective government, equitable development, and citizen involvement. Clear objectives and policy
frameworks guide implementation efforts, and comprehensive stakeholder involvement ensures that
decentralisation policies represent the population's different needs and opinions. Equity considerations help
to redress imbalances and promote social justice, while accountability methods ensure that decentralisation
activities are carried out in a transparent and responsive manner. Prioritising these principles in policy
design and implementation allows policymakers to create more inclusive and effective government systems
that suit the interests of all citizens.
In third objective Investigating Citizens' Awareness of Participation Rights in the Context of Decoding
Decentralization in Ghana. Here Decentralisation in Ghana is a key governance change that aims to shift
power and decision-making authority from the central government to local entities. Understanding people'
awareness of their participation rights in this setting is critical for determining the efficacy and inclusivity of
decentralised government structures. This study investigates people' understanding of their participation
rights in governmental decentralisation in Ghana, identifying significant elements that influence awareness
and potential areas for development.

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IN Ghana, decentralisation refers to the movement of authority, resources, and decision-making power
from the central government to local government authorities. The key aims are to promote local
development, improve service delivery, and encourage citizen participation in governing processes. Legal
frameworks such as the Local Government Act of 2016 and the 1992 Constitution regulate decentralisation
strategies in Ghana, which define the functions and responsibilities of local government organisations.

ISBN: 978-81-957018-5-8
5.6 Awareness Levels among Citizens:
Citizens' awareness of their participation rights in Ghana's decentralised governance frameworks varies by
demographic category and geographical area. While some residents understand their rights to engage in
local decision-making processes, others may be unaware due to factors such as restricted access to
information, education, and socioeconomic status.

5.7 Factors Influencing Awareness:

Several variables influence people' understanding of their participatory rights regarding governmental
decentralization in Ghana, such as Education, Citizens with higher levels of education are more likely to
understand their rights and actively participate in local governing processes. Education provides
individuals with the knowledge and skills needed to navigate bureaucratic procedures and effectively
advocate for their interests. Access to information: Access to information is critical for enhancing citizens'
awareness of their participation rights. Citizens who have access to a variety of information sources,
including media, community networks, and civic education programmes, are better able to comprehend
their rights and obligations in decentralized governance arrangements. Community Engagement: Active
engagement with local communities and civil society organizations can enhance awareness of participation
rights by providing opportunities for dialogue, capacity-building, and mobilization. Community-driven
initiatives, such as town hall meetings, participatory budgeting, and citizen feedback mechanisms, can
empower citizens to voice their concerns and contribute to decision-making processes.

6. Challenges and Opportunities:

Despite efforts to promote awareness of participation rights in decentralized governance, several challenges
persist these challenges may be reflect as Limited Civic Education: There is a need for more comprehensive
civic education programs that target diverse populations and address the specific rights and responsibilities
associated with decentralized governance. These programs should be accessible, inclusive, and tailored to
the needs of different communities.
(i) Access obstacles: Bureaucratic processes, language obstacles, and limited access to technology can all
make it difficult for citizens to exercise their participation rights effectively. Efforts to overcome these
barriers should centre on enhancing access to information, streamlining procedures, and encouraging
diversity.
(ii) Political Apathy: Regardless of whether citizens are aware of their participation rights, apathy and
dissatisfaction with the political process can contribute to low levels of engagement. Building trust,
promoting dialogue, and proving the practical benefits of citizen participation in local administration are
all necessary to combat political indifference.

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In assumption Assessing individuals' awareness of their participation rights in the decoding of

decentralisation in Ghana indicates both problems and potential for improving democratic government
and citizen involvement. While awareness levels vary by demographic, efforts to promote civic education,
increase access to information, and eliminate structural impediments can all help to produce a more
informed, empowered, and active citizenry. Ghana can harness the full potential of decentralised
governance to achieve inclusive development and responsive governance by raising awareness of

ISBN: 978-81-957018-5-8
participation rights and building favourable environments for citizen engagement.Identifying hurdles to
effective citizen engagement in deciphering decentralisation in Ghana is critical for understanding the
obstacles that citizens experience when engaging with decentralised governing systems. Here are some
specific issues in this scenario that you may examine.
(iii) Limited Awareness and Understanding: Many Ghanaian individuals may be unaware of the
decentralisation process and its ramifications for local government. Decentralisation entails complex
administrative and decision-making mechanisms that the general public may not fully understand. Citizens
who lack enough information and education may find it difficult to traverse decentralised governance
systems and actively engage in decision-making processes.

7. Challenges and Barriers:

Weak Institutional Capacity: Decentralization requires strong institutional capacity at the local
government level to effectively manage decentralized functions and engage with citizens. However, many
local government authorities in Ghana may lack the resources, expertise, and administrative capacity to
fulfill their roles effectively. Weak institutional capacity can hinder citizen participation by limiting
opportunities for engagement and responsiveness from local authorities.
Limited Resources and Funding: Adequate resources and funding are essential for supporting citizen
participation in decentralized governance processes. However, many local governments in Ghana may face
financial constraints that limit their ability to implement participatory mechanisms, such as town hall
meetings, citizen forums, and participatory budgeting initiatives. Without sufficient resources, local
governments may struggle to create meaningful opportunities for citizen engagement.
Political Interference and Patronage: Political interference and patronage can undermine citizen
participation in decentralized governance processes. In some cases, local government authorities may
prioritize political interests over the needs and preferences of citizens, leading to decisions that are not in
the public interest. Political patronage can also create barriers to entry for citizens who are not aligned with
ruling political parties, limiting their opportunities for participation and representation.
Lack of Trust and Accountability: Trust between citizens and government authorities is essential for
effective citizen participation in decentralized governance. However, many citizens in Ghana may lack trust
in local government institutions due to perceptions of corruption, inefficiency, and lack of accountability.
Without trust, citizens may be reluctant to engage with local authorities or participate in governance
processes, leading to apathy and disengagement.
Social and Cultural Barriers: Social and cultural factors can hinder effective citizen participation in
decentralized governance. In some communities, traditional power structures and norms may limit
opportunities for marginalized groups, such as women and youth, to participate in decision-making
processes.

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Discrimination and exclusion based on ethnicity, religion, or socio-economic status can further marginalize
certain segments of the population and limit their ability to influence local governance outcomes.
Addressing these challenges requires a concerted effort to strengthen institutional capacity, enhance
transparency and accountability, promote civic education and awareness raising, and create inclusive and
responsive governance structures. By overcoming these barriers, Ghana can realize the full potential of
decentralization to empower citizens, promote local development, and improve governance outcomes.

ISBN: 978-81-957018-5-8
7. Conclusion:
In conclusion, the study "Decoding Decentralization: Assessing the Actual Impact of Administrative
Devolution on Local Governance in Ghana" highlights the complexities and challenges of implementing
administrative devolution in Ghana. Despite efforts to decentralize governance structures, issues such as
limited awareness, weak institutional capacity, political interference, and social barriers continue to hinder
effective citizen participation. Addressing these challenges requires concerted efforts to strengthen
institutional capacity, enhance transparency and accountability, and promote inclusive governance
processes. By overcoming these barriers, Ghana can harness the full potential of decentralization to
empower citizens, promote local development, and improve governance outcomes.

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FROM RELEVANT' TO 'GLOBAL' TURNOVER: A NEW BASIS FOR

CALCULATING PENALTY

ISBN: 978-81-957018-5-8
5
CHAPTER

1.ABSTRACT
Author: Suhasni Sharma
The Competition Act 2002 was amended in 2023, introducing
2nd Year
some new provisions in the realm of market competition. One
The Law School, University of Jammu
such amendment was that the penalty was now to be counted on
the basis of 'Global' turnover instead of 'Relevant' turnover. This
meant that the penalty would now be calculated in terms of the
BRIEF global turnover of the defaulting company, which would result in
1.Abstract a relatively higher penalty. In this paper, the definition of
2.Introduction turnover in the context of CAA is explored, along with a
3.What is Turnover? thorough analysis of the recently introduced clause on worldwide
4.Prior Position - The Excel Corp Case and pertinent turnover, both before and after reform. It goes on
2014 to analyze these provisions critically. Lastly, a comparative
5.Position Post-Amendment analysis of this provision's status in other nations is completed.
6.Critical Appraisal
7. Analyzing Differences Globally
8.Conclusion
9.References KEYWORDS: Global Turnover, Excel Crop Care Case,
Competition Amendment Act 2023,
2. INTRODUCTION
The Competition (Amendment) Act 2023 introduced a slew of significant modifications in the existing
Competition Act 2002. These modifications include broadening the scope of anti-competitive agreements,
reduction in time-limit for review of M&As from 210 days to 150 days, introduction of Settlement &
Commitment framework and the much controversial provision of penalty that is now indexed to Global
Turnover.

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This provision basically revises the basis of calculating penalties to be imposed on the companies who take
part in anti-competitive practices or abuse the dominant position that they hold in the market.
Section 27 of the newly amended act apprises us of the nature of the orders passed by the Competition
Commission of India (CCI) after inquiry into agreements or abuse of dominant position. This section
ascertains multiple orders that the Commission can take up against a company if, following an
investigation, the Commission determines that any agreement mentioned in Section 3 or action taken by a

ISBN: 978-81-957018-5-8
dominant position enterprise violates Section 3 or Section 4. Up until recently, these penalties were often
determined by taking into account "relevant" turnover that was associated with the goods or services that
were violated. This position was concurred by the Supreme Court of India in its judgment in the Excel
Crop Care vs. Competition Commission of India and another where it was held that the turnover was to
be calculated in terms of relevant turnover. But this ruling was overturned by the new amendments to the
act.

3. WHAT IS 'TURNOVER'?
A company's turnover serves as the foundation for determining the penalty that must be imposed on it for
violating the provisions of the anti-competitive laws.
According to Section 2(y) of the Competition (Amendment) act, 2023, "turnover" includes value of sale of
goods or services. While turnover under section 2(y) is a broad definition, it leaves out the idea of
relevancy.
Explanation (c) to Section 5, which was attached was the amendment, further explains the meaning of
turnover as the "turnover certified by the statutory auditor on the basis of the last available audited
accounts of the company in the financial year immediately preceding the financial year in which the notice
is filled under sub-section (2) or sub-section (4) of section 6 and such turnover in India shall be determined
by excluding intra-group sales, indirect taxes, trade discounts and all amounts generated through assets or
business from customers outside India, as certified by the statutory auditor on the basis of the last
available audited accounts of the company in the financial year immediately preceding the financial year in
which the notice is filed under sub-section (2) or sub-section (4) of section 6".
Total turnover refers to the turnover of a company from selling all of their goods and services. On the
other hand, relevant turnover, in case of a multi-product company, refers to the turnover obtained from
the specific product or service in relation to the alleged contravention.
It is rather important to know the meaning of every word given in a statute clearly so that there is no
ambiguity in understanding them by the common citizens and the legal professionals alike. The law should
not be vague and left open ended. This could lead to serious impediments in the legal process.
With the help of the additional revisions made by the Act of 2023, it was ascertained that the turnover to
be computed for the purposes of this act was to be the global turnover and not relevant turnover of the
company. Prior to this amendment, there was some debate about whether the turnover to be calculated of
a multi-product company while calculating penalties should be global turnover or just the turnover on the
relevant products. This uncertainty was quashed in by the decision of the Hon’ble Supreme Court in the
Excel Crop Care case in 2014.

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4. PRIOR POSITION- THE EXCEL CORP CASE 2014

The Excel Crop Care Case is a benchmark case which settled the controversy regarding the basis of
ascertaining penalties. Up to the decision given by the Supreme Court in the Excel Crop Care case in 2014,
global turnover was the yardstick while calculating penalties, even though it was not specified anywhere in
the act itself. But this position was countermand in this landmark decision.
The CCI had passed an order imposing a penalty of 9% of three years average turnover of the three

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appellants involved in the case. It is necessary to mention here that CCI had imposed this penalty on their
"total turnover" and not on their "relevant turnover". When the appeal was sent to Competition Appellate
Tribunal (COMPAT), it stated in its decision that the penalty cannot be based on the "total turnover" of
the parties involved and is instead limited to 9% of the "relevant turnover", or the turnover related to the
number of supplies made of the commodity for which the cartel was established and supplies made. Put
another way, it had to be related to the goods in question; turnover of other products and sales made by
the establishments that had no fabricated defects could not have been taken into account when
determining the punishment.
Argument given by the learned Additional Solicitor General Mr. Kaul was that the provision of Section 27
does not expressly say that the turnover to be calculated should be relevant and the intention of
Legislature while formulating the act was clearly to take into consideration the entire turnover of the
enterprise. He argued that COMPAT had restricted the interpretation of "turnover" by making it product
specific and not person/enterprise specific.
5.1 Doctrine of Proportionality: It is pertinent to note here that the learned counsel for the appellants also
pushed for the use of universally applicable doctrine of proportionality. The following passage was cited to
highlight the applicability of Doctrine of Proportionality in the case of Bhagat Ram v. State of Himachal
Pradesh & Ors.:
"16…It is equally true that the penalty imposed must be commensurate with the gravity of misconduct, and
that any penalty disproportionate with the gravity of the misconduct would be violative of Article 14 of the
Constitution…"
5.2 Judgment: The Supreme Court corroborated COMPAT's ruling and upheld the decision of imposing a
penalty of 9% of three years of 'relevant turnover' as it "will be more in ethos of the Act and the legal
principles which surround matters pertaining to imposition of penalties". In arriving at this conclusion, the
Hon'ble SC gave seven reasons. Since then, the penalty was calculated in the context of relevant turnover.
Make My Trip-GOIBIBO and OYO have been hit with fines by the Competition Commission of India
(CCI) as of late, in 2022. Penalties were levied by CCI against the listed businesses collectively. Due to the
clubbing of the aforementioned platforms, this essentially made the relevant turnover as global turnover.
The discussion of the necessity for a different metric and the setting aside of the pertinent turnover statistic
do not qualify as a singular episode. As the CCI noted in Matrimony.com v. Google, 2012, a different
criterion is required in order to impose fines in the relevant cases, and also noted that the application of
relevant turnover is insufficient for such technology-based platforms.

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5. POSITION POST-AMENDMENT
The report that formed the basis of the 2020 Competition Amendment Bill proposal was issued in July
2019 by the Competition Law Review Committee (CLRC). In the report, the Committee advised against
amending Section 27 of the Competition Act to explicitly replace the word "turnover" with "relevant
turnover," even though the idea of "relevant turnover" should be taken into consideration when

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determining the amount of penalty. Instead, the Committee decided that the CCI should publish penalty
guidelines that introduce the idea of "relevant turnover," which the CCI should take into account before
calculating the penalty. The Committee further emphasized that, in accordance with the Supreme Court's
ruling in the Excel Crop case, the CCI must apply the doctrine of proportionality when calculating the
appropriate penalty amount. The Committee concluded that this course of action will preserve Section 27's
deterrent effect, prevent parties from abusing it, and guarantee that there are enough balances on the CCI's
authority to issue penalties.
However, it became evident when the bill was signed into law by the president that the turnover would
now be determined using the 'global turnover' as the norm. This was unexpected as nothing in particular
regarding 'global turnover' was discussed in the CLRC Report as well as in the Legislature while discussing
the bills. The Standing Committee’s report also did not mention anything about this. Through the
amendment of the Act, two explanations were added to Section 27. The second explanation expressly
states that the turnover has to be 'global turnover'. The said explanation is as follows:
Explanation 2.- For the purpose of this clause, "turnover" means global turnover derived from all the
products and services by a person or an enterprise.
With this revision, there was no room for interpretational ambiguity regarding the meaning of turnover.
Now, the penalty imposed would be greater as it was now to be imposed on the global turnover.

6. CRITICAL APPRAISAL
The main goals of an effective punitive provision must be carefully balanced to prevent financial ruin while
still sufficiently discouraging organizations from participating in anti-competitive behavior. As a result, it
will be crucial for the proposed regulations to guarantee that the worldwide, all-product definition of
turnover is only used in extraordinary circumstances in order to achieve a balance between the legislative
aim and an effective criminal provision.
While the amendments to the act seek to reduce vagueness in the provisions of Competition Law, some of
the stakeholders are not completely satisfied by them. Critiques argue that imposition of penalty on multi-
product company on their global turnover would lead to catastrophic decline in their revenue. As was seen
in the Excel Crop Care Case, the amount of penalty to be paid while the turnover was being calculated in
terms of global turnover was humongous. But after the court decided to impose penalty only on the
relevant turnover, it was reduced drastically.
Deterrence should be the primary goal of any penalty that is imposed. The application of global turnover
as a penalty metric for infractions would have the reverse effect of what is intended and result in violating.
Because of the high compliance and maintenance costs associated with the items and the potential for
penalties based on global turnover, it may result in over-deterrence and overall high product costs.

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Furthermore, it would lead to increasing cases of appeals to the judiciary against such huge penalties
eventually adding to the judiciary’s heavy load.
However, an ideal degree of deterrence is required to prevent the abuse of dominant position as well as the
keep in check the anti-competitiveness measures of a company. For this reason, some of the stakeholders
are content with the calculation of penalty in context of global turnover. This provision will help deter

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enterprises from indulging in activities in contravention of Section 3 and Section 4 of the act, in the fear of
bearing the costs of the penalties. Additionally, multinational corporations (MNCs) considering beginning
operations in India may reconsider if they fear severe fines for engaging in anti-competitive behavior. This
will in turn lead to less market competition for indigenous companies.

7. ANALYSING DIFFERENCES GLOBALLY

7.1 European Union:
When deciding what punishment to inflict on the violator, the European Union (EU) adheres to a set of
guidelines known as the European Commission Guidelines (ECG). ECG specifies a two-step process that
must be used to determine the culpability amount.
Step 1: Figuring Out the Base Amount The value of the businesses' sales of products and services is used to
determine the base amount of the fine. Thirty percent of the relevant turnover is the starting point. After
that, the Commission multiplies the fine according to how long the violation had been ongoing. To further
add a deterrent effect on the market, the Commission will add 15–25% of the turnover to the basic total.
Step 2: Modification for Exacerbating or Alleviating Circumstances Depending on the existence of
aggravating or mitigating circumstances, the Commission may decide to modify the initial fine amount
upward or lower.
Additionally, the Commission considers the maximum penalty amount, which is capped at 10% of the
enterprise's entire turnover from the previous business year, when applying the penalty.
7.2 United Kingdom:
The Competition Market Authority's (CMA) penalty guidelines are adhered to in the United Kingdom. It
has chosen to penalize the infringer via a six-step process which include determining the relevant market
that was impacted by the undertaking's infringement; modifying the basic amount in specific situations
based on the number of years the infringement had been committed; modifying the basic amount in light
of aggravating or mitigating circumstances; and finally adjusting for specific deterrence. After that, it
determines if the penalty is appropriate given the infraction. Lastly, it takes into account reduction
proposals submitted by undertakings based on whether they have settlements or leniency agreements with
the CMA.
7.3 Singapore:
The turnover of the undertaking, rather than the relevant turnover for calculating the penalty, is referred
to in Section 69(4) of the Singapore Competition Act in Singapore. It is therefore believed that even in
mature jurisdictions, global turnover provides a suitable foundation for capping the penalty.

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8. CONCLUSION
Law is ever-evolving. It has to be modified with time to accommodate the changes going on in the society.
The regulation of competition in market is necessary for there to be a fair and just market which will help
in fostering an environment hospitable for a healthy competition to prevail. This, eventually, will lead to a
growing and stable economy. The provision of imposing penalty on basis of global turnover was

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unexpected but mostly, a welcomed one. There are mixed emotions regarding this particular provision. But
only time can tell whether this will help deter anti- competitive behavior of enterprises or not.

9. REFERENCES
1. (2019). Report Of Competition Law Review Committee. Ministry of Corporate Affairs Government
of India.
2. (2022-2023). Standing Committee on Finance. Ministry of Corporate Affairs.
3. Aditi Gupta, “Relevant Turnover” or “Total Turnover”: Resolving the Obscurity, IRCCL, (Jan. 2,
2023, 10:04 AM), https://www.irccl.in/post/relevant-turnover-or-turnover-resolving-the-obscurity
4. Excel Crop Care Limited v. Competition Commission of India and Another, A.I.R. 2017 S.C. 2734
(India)
5. Chirag Motwani, Global Turnover: A “Relevant” welcome to the Competition Realm? An Analysis,
Centre for Business and Financial Laws, (Apr 21, 2023), https://www.cbflnludelhi.in/post/global-
turnover-a-relevant-welcome-to-the-competition-realm-an-analysis
6. Naman Aggarwal, Examining the Correct Basis of Penalty: Relevancy of ‘Relevant Turnover’ after
Competition (Amendment)Act, 2023, CCLE, https://www.icle.in/resource/examining-the-correct-basis-
of-penalty-relevancy-of-relevant-turnover-after-competition-amendment-act-2023/

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SYMPHONY OF THE COMMAND THEORY & BROKEN WINDOWS THEORY IN

MODERN DAY LAW ENFORCEMENT

LAW

ISBN: 978-81-957018-5-8
&
JURISPRUDENCE 6
CHAPTER

Author: Dravin Mahajan, 1st year law ABSTRACT

student pursuing LL.B. Hons. from This paper tries to delve into the Command Theory of
O.P. Jindal Global University. Jurisprudence and its impact on contemporary law enforcement
through the lens of the Broken Windows Theory. Effort has been
Dr. Raj Kumar, Assistant Professor, made to probe the practical application of these two within
Department of Law, University of modern law enforcement, through this research paper. It also
Jammu, Jammu, UT of J&K considers the empirical evidence challenging the efficacy of strict
law enforcement of minor offenses in reducing crime via the
BRIEF: channel of jurisprudential theory and modern-day policing
Abstract method. It underscores the need for responsive jurisprudence that
1.Introduction
grapples with the complexities of contemporary society.
2. Command Theory’s role in structuring
Jurisprudence and sculpting law
enforcement
Keywords: Command Theory, Broken Windows Theory, law
3. Does the Broken Windows theory enforcement, policing.
effectively translate the Command
Theory’s principles into practice? 1. Introduction
4. Law and Order in the Balance: This paper explores the Command Theory of Jurisprudence, as
Command Theory and Broken Windows in
propounded by John Austin, and its severe impact on
U.S. Policing
contemporary law enforcement. This theory of jurisprudence
5. Can the Command Theory’s principles
be adapted to India’s unique socio-legal
asserts that the laws function as directives issued by the
landscape? sovereign authority, which are backed by threat of sanctions,
6.Conclusion: Implications for society, law compelling the populace to comply and this in turn
enforcement and jurisprudence significantly influences contemporary legal philosophies
7. References operating in the realm of law enforcement.

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One such theory is the Broken Windows theory, which proposes that addressing minor offenses can
prevent more serious crimes by maintaining order. This was proposed by James Q. Wilson and George
Kelling. Just like the Command Theory, it operates on the idea that visible signs of disorder and
noncompliance of laws create an environment conducive to further transgressions. The rationale behind
this idea being that issues which seem to be inconsequential (broken windows or graffiti) can escalate into
more serious criminal activity and by swiftly policing these violations further deterioration of societal order

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can be prevented. This would eventually lead to enhancement of compliance with law established by the
state, which enjoys legal sanctity.
Here, a parallel can be drawn between these two theories, that a command must be obeyed to prevent
anarchy. However, the efficacy of the Broken Windows theory when put to practice remains debatable and
will be discussed in this paper. Hence, it becomes essential to critically evaluate the Command Theory for
understanding the real-world implications of philosophical roots of law enforcement.

2. Command Theory’s role in structuring Jurisprudence and sculpting law enforcement

The Command theory of Jurisprudence has played a pivotal role in shaping the legal landscapes across
various epochs because of it being the flag bearer of legal positivism theory. Even though the modern legal
systems are ever changing, Austin’s doctrine has evolved and improved to adapt to these changes. The
theory showcases how legal frameworks are developed when they are aligned with the themes and ideas of
command, duty, sanction, and sovereignty.
However, the critics of the Command Theory have always challenged its applicability in contemporary
society on the basis of the argument that the theory has a rigid, non-adaptive structure which focusses on
sovereign’s will rendering it inadequate to address the dynamic and reciprocal nature of law-making in
democratic societies. The contention here is that, in democratic societies law emerges not from a ‘singular
sovereign’, as in monarchies, but also from a ‘collective will’ expressed though legislative bodies, as in
republics.
Nevertheless, the Command Theory’s impact on legal systems remains undisputed because it provided a
clear framework for understanding the nature of law particularly in societies with a well-defined
hierarchical legal structure. Here, monarchies like Saudi Arabia and democracies like United Kingdom and
Singapore shine as bright examples. In modern contexts too, the theory’s influence persists, particularly in
the realm of statutory law, where the essence of command and sanction is evident. The theory has also
shaped legal education, prompting scholars to consider the fundamental aspects of law and its role in
society. It has prompted us to ponder upon questions like: How artificial intelligence might redefine the
sovereign’s command in an increasingly digitalized world? In what ways could the principles of Command
Theory be restructured to harmonize with the ethical imperatives of an ever-changing society? And,
perhaps most importantly, how will the evolving landscape of dispensing justice influence the application
of the Broken Windows Theory in heterogenous societies? The exploration for answer to these questions
will help us in unravelling how legal philosophies get challenged when their viability is questioned after
practical enforcement. Thus, one needs to explore how Command Theory practically manifests in law
enforcement paradigms like the Broken Windows approach. To answer this, we delve into the rigid
conception of law as an instrument of command and control.

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Consider examples from countries such as the United States and Singapore, where law enforcement targets
minor offenses like graffiti or loitering through various ‘vandalism laws’ of various American States and
statute like Miscellaneous Offences (Public Order and Nuisance) Act. These efforts aim to create an
environment that discourages more serious crime and prevent the escalation of criminal behavior and
disorderly conduct.
The aforementioned laws are backed by stringent enforcement, reflecting that it is the sovereign’s

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prerogative to impose duties upon subjects and apply sanctions for non-compliance, that in turn steers to a
paradigm where obedience to legal obligations is paramount. The specter of punitive measure looms,
serving as a deterrent against transgressions which emphasizes the need for a clear chain of command
where order is maintained through the authoritative imposition of rules.
This furthers the argument, whatever was propounded by Austin has relevance in today’s jurisprudence as
well as law enforcement tactics. Its empirical evidence is a theory proposed by Kelling and Wilson, which
was further advanced into practice by N.Y.P.D Commissioner William Bratton.

3. Does the Broken Windows theory effectively translate the Command Theory’s principles into practice?
The efficacy of the Broken Windows Theory in translating the Command Theory’s principles into practice
has been a subject of intense debate. Critics argue that the correlation between maintaining order and
reducing serious crime is not as robust as proponents suggest. Moreover, the implementation of Broken
Windows policing has raised concerns about racial and class bias, particularly in practices such as stop-
and-frisk which was enforced in 1990 and 1993 in New York City and was later rendered unconstitutional.
Despite these setbacks, proponents, like William Bratton, argue that the Broken Windows theory enforces
quality-of-life violations leading to a decrease in overall crime rates because the people witness others
getting reprimanded for minor offences, they are more likely to adhere to societal rules. The primary logic
behind this argument can be derived from the assertion that a community with strong norms discourages
criminal behavior and the penalty acts as a counter to symbolic signaling.
Yet, the question remains: does the Broken Windows Theory effectively embody the Command Theory’s
dictum of law as a sovereign command, or does it oversimplify solution to complex social issues? The
answer to this question has eluded consensus because scholars and practitioners grapple with the delicate
and fragile dynamics between theory and its application. Moreover, the implementation of the Broken
Windows approach raises ethical questions. Is the rigorous enforcement of minor infractions
proportionate? How does it impact marginalized communities? Does it inadvertently perpetuate social
injustice? The answers to these questions will vary according to demography, social-fabric, and socio-
economic conditions of the area where this approach gets implemented.

4. Law and Order in the Balance: Command Theory and Broken Windows in U.S. Policing
The juxtaposition of the Command Theory of Jurisprudence and the Broken Windows Theory within the
legal tapestry of the United States illuminates a fascinating interplay between legal philosophy and
practical law enforcement. The Command Theory, with its roots entrenched in the notion of law as the
sovereign’s dictate, finds a contemporary echo in the Broken Windows theory, which has been
implemented with fervor in urban policing strategies across the U.S.A.

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This latter theory, which advocates that visible signs of civil disorder foster further crime, has been
operationalized through zero-tolerance policies, targeting minor infractions with the intent to uphold social
order.
The legal implications of these theories are profound, as they shape the very mechanisms through which
law is enforced. In the U.S.A., the Broken Windows Theory has informed policies that prioritize the
maintenance of public order, often at the expense of individual liberties. This has led to a policing

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paradigm where the command of law is visible upheld through the rigorous enforcement of all statutes,
regarding their gravity. Ethically, this raises questions about proportionality, the balance of power between
the state and the individual, and the potential for discriminatory practices. The ethical quandaries are
particularly pronounced given the criticisms that such enforcement strategies disproportionately affect
marginalized communities, engendering a cycle of mistrust and social injustice. This is based on the fact
that when N.Y.P.D. implemented this approach, in 2021 alone 91% of arrests for common broken
windows offenses in NYC targeted Black, Latins, and other non-white New Yorkers. Additionally,
criminalizing poverty by focusing on low-level offenses can disproportionately impact marginalized
communities, including immigrants facing deportation for minor infraction highlights the legal and ethical
implications extending beyond the realm of law enforcement into the broader societal context.
The Command Theory’s influence, while less direct, still permeates these discussions, as it underpins the
authority with which laws are applied and the expectation of obedience that is demanded.
5. Can the Command Theory’s principles be adapted to India’s unique socio-legal landscape?
The Broken Windows Theory has been a subject to ponder upon, regarding its applicability in the diverse
socio-legal landscape of India and in my humble opinion, based on my observations, Indians’ affinity for
dictatorial leader significantly influences their legal perspectives. This inclination aligns with the command
theory of law, which postulates that legal norms derive their legitimacy from authoritative commands
backed by penalties. In India the allure of strong, decisive leadership overshadows concerns about
authoritarian tendencies because for the general populace promise of efficient governance and swift action
resonates, leading them to support a command-based approach.
As a domino effect of this preference, the authoritative leadership gets extended to the realm of law
enforcement. Here, the example of states like West Bengal, Bihar, and Maharashtra which grapple with
deteriorating law and order situations can be used because the implementation of the Broken Windows
theory in these states will help in addressing visible signs of disorder quickly-such as petty crimes, neglected
infrastructure, and public nuisances-can prevent their escalation into more serious offenses. The Broken
Windows theory emphasizes community policing as it engages the law enforcement agencies with the local
residents to maintain order. Taking the prevailing conditions in these states, it won’t be a surprise if the
Indians incline towards strong leadership in the hope of getting this pragmatic approach enforced in order
to enhance social order and safety.
However, the feasibility of applying the Broken Windows Theory in India must be examined in light of the
fact that this country enjoys a complex social fabric which is a mosaic of cultural norms and values. This
further raises questions about the balance between maintaining public order and respecting the nuanced
dynamics of India’s pluralistic society because the ethical implications of enforcing such a theory, which
may inadvertently target vulnerable populations, cannot be overlooked.

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To solve this issue, law enforcement agencies must be sensitized to protect individual freedom.
As stated before, a careful study of the country’s unique socio-legal nuances should be taken into
consideration since it would facilitate the implementation of a calibrated approach that aligns with the
principles of justice and equity, ensuring that the enforcement of law does not become a tool for
discrimination or social exclusion and would help in harmonizing the sovereign’s command with the
realities of India’s diverse legal ecosystem, where the rigid application of the Broken Windows Theory may

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not be congruent with the societal ethos.

6. Conclusion: Implications for society, law enforcement and jurisprudence

This interaction between the Command Theory of Jurisprudence and the Broken Windows Theory has
implications of over society, law enforcement and jurisprudence. These theories for law enforcement are
complex as the application of this law enforcement theory has led to a rise of zero-tolerance policing
wherein nonviolent behaviors like loitering and graffiti are heavily penalized which can create strain in
police-community relations and erode trust over government institutions. Moreover, resource allocation by
focusing on minor offenses may divert resources required for investigating serious crimes. Besides, crime
may move to adjacent areas, affecting new communities and displacement may lead to crimes occurring
indoors rather than in public spaces.
However, in the world of law enforcement this confluence may promote clarity and predictability as
officers of law must enforce statutes as written, without personal interpretation. This implies that clarity
helps ensure predictable outcomes and minimizes arbitrary enforcement. It will further the agenda of
making law enforcement officers duty-bound to enforce these obligations, ensuring compliance with legal
norms. Therefore, calling for a balancing act between achieving clarity and predictability because too much
rigidity may hinder adaptation to changing circumstances and too much flexibility may lead to uncertainty
and unequal enforcement. In short, it may promote a system which is accountable.
In the jurisprudential sphere, these theories challenge traditional notions of justice and the role of
discretion in law enforcement for the reason that laws are not merely commands but are shaped by societal
values and democratic processes and the Command Theory’s rigid structure is at odds with the dynamic
nature of modern legal systems, whereas the Broken Windows Theory, while practical in its approach, may
overlook the underlying social issues that contribute to crime, suggesting a need for a more holistic
understanding of criminal behavior.
When these two theories are juxtaposed, a friction between the need for order and the potential for
overreach in law enforcement is exposed. Austin’s framework provides a clear logic for the enforcement of
laws but also lacks flexibility to address the nuanced realities of modern societies. On the other hand, the
Broken Windows Theory offers a practical approach to crime prevention, but it also suffers from the defect
of oversimplifying the complex social factors that contribute to criminal behavior. Thus, it becomes
pertinent to strike a balance between the rigid structure of Command Theory with a more refined
understanding of the role-played law enforcement in society and its broader implications for jurisprudence.
This calls for a balance, which can be ascertained by acknowledging the potential for bias and overreach in
policing but by also admitting the importance of maintaining public order. This will guide us towards an
all-inclusive approach to understanding law enforcement and jurisprudence.

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Closing this scholarly enquiry, I would like to reflect upon the fact that the command theory of
Jurisprudence has made a mark in the realm of modern law enforcement because of its principal idea of
sovereign’s command being supreme in the legal hierarchy. This idea led to the development of the Broken
Windows Theory. This academic research has tried to traverse the theoretical underpinnings of Austin’s
imperatives to the practical manifestations within the policing paradigms of the contemporary era. It has
also illuminated the delicate relationship between the sovereign’s command and the societal adherence to

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legal edicts, drawing the focus on the fact that jurisprudential philosophy plays a vital role in shaping the
world of law enforcement.

7. Reference
[1] JSTOR.org, https://www.jstor.org/stable/3050611 (last visited Apr. 20, 2024).
[2] Dockmckee.com, https://docmckee.com/cj/docs-criminal-justice-glossary/order-maintenance-definition/ (last visited Apr. 20,
2024).
[3] Simply Psychology, https://www.simplypsychology.org/broken-windows-theory.html (last visited Apr. 20, 2024)
[4] Academia.edu, https://www.academia.edu/40616660/AUSTINS_COMMAND_THEORY_A_LEGAL_POSTIVISM_ (last
visited Apr. 20, 2024).
[5]JSTOR.org, https://www.jstor.org/stable/2215256 (last visited Apr. 20, 2024).
[6] Eparlib, https://eparlib.nic.in/bitstream/123456789/68/1/The_Indian_Parliament__Eng.pdf (last visited Apr. 20, 2024).
[7] JSTOR.org, https://www.jstor.org/stable/40389988 (last visited Apr. 20, 2024).
[8] Medium.com, https://medium.com/@si5716490/why-law-is-important-upholding-order-justice-and-society-15fefc5f6631 (last
visited Apr. 20, 2024).
[9]Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/graffiti (last visited Apr. 20, 2024).
[10]Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/loitering (last visited Apr. 20, 2024)..
[11]United States Law Dictionary, https://uslawdictionary.com/what-is-vandalism/ (last visited Apr. 20, 2024).
[12]Singapore Statutes Online, https://sso.agc.gov.sg/Act/MOPONA1906 (last visited Apr. 20, 2024).
[13]Social Sci LibreTexts,
https://socialsci.libretexts.org/Bookshelves/Sociology/Introduction_to_Sociology/Sociology_(Boundless)/07%3A_Deviance_Soci
al_Control_and_Crime/7.01%3A_Deviance/7.1B%3A_Norms_and_Sanctions (last visited Apr. 20, 2024).
[14]The New York Times, https://www.nytimes.com/2021/06/08/books/review/bill-bratton-peter-knobler-the-profession.html
(last visited Apr. 20, 2024).
[15]Legal Information Institution, Cornell Law School, https://www.law.cornell.edu/wex/stop_and_frisk (last visited Apr. 20,
2024).
[16]Center for Constitutional Right, https://ccrjustice.org/home/press-center/press-releases/landmark-decision-judge-rules-nypd-
stop-and-frisk-practices (last visited Apr. 20, 2024).
[17]CNN, https://edition.cnn.com/2022/03/26/us/crime-us-quality-of-life-policing/index.html (last visited Apr. 20, 2024).
[18]Criminal Justice – IresearchNet, https://criminal-justice.iresearch.com/criminology-thoeries/labelling-and-symbolic-
interaction-theory/ (last visited Apr. 20, 2024).
[19]Journalist’s Resource, https://journalistsresource.org/politics-and-government/the-impact-of-community-policing-meta-
analysis-of-its-effects-in-u-s-cities/ (last visited Apr. 20, 2024).
[20]College of Policing, https://www.college.police.uk/research/what-works-policing-reduce-crime/zero-tolerance (last visited
Apr. 20, 2024).
[21] The Atlantic, https://www.thwatlantic.com/magazine/archive/1982/03/broken-windows/304465/ (last visited Apr. 20, 2024).
[22] Racism.org, https://racism.org/articles/law-and-justice/criminal-justice-and-racism/373-criminal-justice-reform/10160-
revisiting-broken (last visited Apr. 20, 2024).
23]Bing, LAS_Report-on-Racial-Disparities-in-Broken-Windows-Policing_3.29.2022.pdf (legalaidnyc.org) (last visited Apr. 20,
2024).

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[24]The New York Times, https://www.nytimes.com/2014/04/14/opinion/deportations-forminor-offenses.html (last visited Apr.

20, 2024).
[25]Scroll.in, https://scroll.in/article/854479/why-does-india-the-worlds-largest-democracy-love-the-idea-of-dictatorship (last
visited Apr. 20, 2024).
[26] Human Rights Watch, https://www.hrw.org/news/2021/02/19/india-government-policies-actions-target-minorities (last
visited Apr. 20, 2024).
[27]SAGEPUB.com, https://journals.sagepub.com/doi/full/10.1177/00224278211016030 (last visited Apr. 20, 2024).

ISBN: 978-81-957018-5-8

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EPITOME OF INJUSTICE AND OPPRESSION

ISBN: 978-81-957018-5-8
Credit: Scroll.in

7
CHAPTER

Author: ABSTRACT
Roshan Kumar (Advocate) To enumerate various instances of injustice and
oppression to which the enforcement of these claims
Vincy Chanchal (IVth Year student of gave rise would exceed the limits of this epitome,
CNLU) and one must suffice as a sample. A baboo named
Cossinath was instigated to bring an action in the
BRIEF: Supreme Court in August 1779, against his master,
Abstract the Raja of Cossijurah, lying to the South of
1.Introduction Calcutta. A writ was issued on the strength of his
1.1 Background affidavit, and the Raja was required to find bail to
1.2 Importance of Cossijurah Case the extent of three lacs and a half rupee. He
1.3 Facts concealed himself to avoid the process, upon which
1.4 Issue the Court immediately dispatched two sheriff’s
2. Action by the Supreme Court officers with a body of eighty-six men, of whom
2.1 Observation thirteen were European sailors, and the rest natives
3.Analysis of the case inhabited as sepoys, and all armed with muskets or
swords. On their arrival at Cossijurah, they forced
3.1 Critical Appreciation
their way into the palace of Raja, maltreated his
3.2 Analytical Appreciation
servants, violated the sanctity of zenana, and
4. Historical view point on this case
desecrated his family temple, packing up the idol
5. Criticism
with other lumber in a basket, and affixing the seal
6. Aftermath
of the Court to it. Hastings considered the time had
7. Related cases based on the facts of Above
at length arrived when he could no longer delay to
case
vindicate the authority of the Government, and
8. Conclusion
afford the protection to the natives, whatever might
9.References be hazard attending it.

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He instructed the military officer at Midanpore to This case helped to confront Supreme Court and
intercept the whole party on their return, and march Council at the higher degree.
them to Calcutta, where they were immediately 1.3 Facts: During the Company’s rule in
liberated. To prevent similar outrages which were India, the zamindars and the farmers of the land
then mediated, he likewise issued a proclamation, revenue were required to find a surety who was

ISBN: 978-81-957018-5-8
directing all landholders of every degree to consider held liable to pay revenue to Company in case of
themselves exempt from the jurisdiction of the default on the part of zamindar or the farmer. In
Supreme Court, except in the two cases of their the instant case, Raja Sundernarayan was a
having bound themselves by agreement submit to it, zamindar of Cossijurah in the district of
or being British subjects. The Supreme Court then Midanpore in Orissa. He was to pay to the
proceeded to issue a summons against the Governor- Company a fixed sum of money as land revenue
General himself and the members of the Supreme annually. One Cossinaut Baboo (Kashinath Babu)
Council, but they peremptorily refused to obey it. who was a principal merchant of Calcutta was his
surety. Raja of Cossijurah was indebted to
Keywords – Court, Governor – General, Supreme Kashinath Babu upon two bonds which Raja had
Court, Writ. executed at Calcutta in favor of Kashinath Babu.
1.Intorduction Having failed to recover the money from the Raja
1.1 Background: In 1779 once again a through the Revenue Board of Calcutta,
controversy arose between the Supreme Court and Kashinath filed a debt-suit against the Raja in the
the Governor-General and his members of Council Supreme Court at Calcutta on August 13, 1779.
over the issue of latter’s jurisdiction over the His contention was that Raja being a zamindar
Zamindars who were involved in revenue who was collecting revenue for the Company was
collection for the Company and whether a writ in the service of the Company and, therefore, he
could be issued by the Supreme Court against came under the jurisdiction of the Supreme Court.
them. It was strongly opposed by Raja The Supreme Court thereupon issued a writ of
Sundernarian. This controversy arose in the capias for the arrest of Raja of Cossijurah. The
historic Cossijurah Case. defendant i.e., the Raja absconded; hence the writ
1.2. Importance of Cossijurah Case: The was returned unexecuted.
Cossijurah Case illustrates another aspect of the In the meantime, the Collector of Midanpore
administration of the Company in India. This case reported the matter to the Governor-General and
is known for the fact that it was able to bring out Council complaining that the revenue collection of
the defects in the Charter of 1661, which was the district was being adversely affected due to this
responsible for creating Supreme Court of action of the Supreme Court against the zamindar
Calcutta. The Charter was unable to demarcate of Cossijurah. Hastings and his Council consulted
between the jurisdiction of the Court and the the Attorney General on the point whether the
position of Governor-General-in-Council. This Supreme Court was empowered to entertain
created confusion. Supreme Court issued Writ of private debt suit of Company’s servants. On advice
Capias against the directions of Council. of the Attorney General, the Supreme Court

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instructed the zamindar not to obey the process of Company officials not to obey the Supreme
the Supreme Court and also issued a general Court’s direction who later died during
notification to all the zamindars in the territories imprisonment. Later, on account of serious public
of Bengal, Bihar and Orissa that they were not to repercussion arising out of the case of Kashinath
submit to the process of the Supreme Court except Babu withdrew his suit against the Raja

ISBN: 978-81-957018-5-8
in two cases, namely, unless they were the servants Cossijurah.
of the Company or they voluntarily accepted the Writ of Capias
jurisdiction of the Supreme Court under a control Capias is the significance of which is “that you
with one of the His Majesty’s subjects in a case take”. It is applicable to many heads of practice.
exceeding the value of rupees five hundred. As the Several writs and processes commanding the
writ remains unexecuted, the Supreme Court Sheriff to take the person to the defendant are
issued another writ. This time the Sheriff of the known by the name of capias. For example: there
Court along with sixty men entered the premises of are writs of capias ad respondenum, writs of capias
Raja Sundernarayan. In the meantime, the ad computandum, writs of capias ad
Governor General and his Council and directed satisfaciendum, etc., each especially adapted to the
Col. Amity, the Commanding officer of the troops purposes indicated by the words used for
at Midanpore to send troops to interpret the designation.
Sheriff and his men. Resultantly, Sheriff and his Capias Ad Audienum Judicium- A writ issued
men were intercepted and kept in confinement for in a case of misdemeanor after the defendant
a period of three days. Though, the Sheriff and his has appeared and found guilty and is not
men were released at a later stage, the Governor- present when called.
General directed Col. Amity to resist the execution Capias Ad Computandum- A writ issued in the
of any writ of the Supreme Court in future. action of account render, upon the judgement
The plaintiff Kashinath Babu aggrieved by the quod computet, when the defendant refuses to
action of the Governor-General and the Council appear in his proper person before the auditors
brought action against the individuality. In the and enter into his account.
first instance the Governor General appeared Capias Ad Satisfaciendium- A writ of execution
before the Supreme Court and pleaded that their issued upon a judgment in a personal action
alleged act was done in their public duty. However for the recovery of money, directed to the
subsequently, on the advice of the Attorney Sheriff or coroner, commanding him to take
General they stopped appearing. Consequently, the defendant and him safely keep, so that he
the Supreme Court issued writ warrant against all may have his body in Court on the return to
the members of the Council barring Warren satisfy, ad satisfaciendium, the plaintiff.
Hastings and Barewell but the military authorities Capias Pro Fine- The name of a writ against a
did not allow the court’s official to execute the defendant who has been fined and who does
writ. In the offensive action the Supreme Court not discharge it according to the judgment.
ordered arrest of the Attorney General of the East This writ commands the sheriff to arrest the
India Company Mr. North Naylor for advising the defendant and commit him to prison, there to

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remain till he pays the fine or be otherwise Intrusion in Court’s work:

discharged according to law. It has been suggested that the Government
1.4 Issues: There were two important issues violently interfered with the normal working of
involved in the Cossijurah case: Court because it had asserted an unwarranted
i.Whether the Zamindars were subject to the jurisdiction over zamindars, who were not subject

ISBN: 978-81-957018-5-8
jurisdiction of the Supreme Court? under Act or Charter. This position had been
ii.Who was the competent authority to decide substantiated by the Bogle, Commissioner of Law
whether or not the Zamindars were under the Suits, who in a report to the Governor-General in
jurisdiction of the Supreme Court? November, 1778, stated that since the
establishment of the Supreme Court, in practically
Dealing with the first issue, this issue could not be all cases, the Court had accepted the plea of
decided by the Supreme Court because the Zamindars to its jurisdiction. They had been
Zamindar Raja Sundernarayan, did not appear considered as the landlords, possessed of extensive
before the Court in order to plead its jurisdiction. territories, paying a certain land tax to the
It was proper for the Zamindars to appear before Government. The issue in the Cossijurah case was
the court and plead to its jurisdiction and in the different. It related merely to the preliminary plea
case of its judgment against him, to appeal to the regarding the Court’s jurisdiction. The Zamindar
King-in-Council a chance to decide the jurisdiction of Cossijurah did not appeal before the Court,
of the Supreme Court over the Zamindars. But the which would have stopped all the further action
Supreme Council and on its encouragement, the against him. He, however, adopted a different
Zamindar, both the used force to stop the course of action. He was encouraged by the
processes of the Supreme Court. Even in an earlier Government, and then on the plea that the
case, the case makes it clear that the Supreme collection of revenue was suffering, the
Council prevented any inquiry into the status of Government put a stop to the Court’s process by
Zamindars by the Court. The Futty Singh’s Case the force. This conduct of the Government was
as well as Cossijurah case make it clear that the reprehensible.
Supreme Council did not like that the Court Two different explanations can be given on this
should up this issue for inquiry and judicial intrusion: One Government was too much
settlement and the Council thought it was in the solicitous for the Zamindars; it did not like the
political interest of the Company to keep the Court should touch them in any way related to
Zamindars ignorant about their rights and status. collection of the revenue. And the second
Dealing with the second case, The Supreme Court Government did not want the Court to pronounce
held that the Court and not the Council which was upon the status of the Zamindars. The
the competent authority to determine this issue. In Government feared that pronouncement of the
other words, in the opinion of the Supreme Court Court’s verdict could affect the revenue-collection,
it was the Court and not the Council which was to whether it was favorable or unfavorable to the
determine the status of Zamindars and to decide Zamindars. The Court decided that the Zamindar
whether or not they were under its jurisdiction. was the absolute proprietor of his zamindari, then

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the Zamindars would have enabled to check the Attorney of the Company and the officers who
through the Court the excesses committed towards caught hold of the Sheriff’s party. The Attorney
them by the Government itself. As absolute was put behind the bars and even the Governor-
owners, they could have resisted their zamindaris General and Council themselves were individually
at will by the Government. Therefore, served with summons at the suit of the decree-

ISBN: 978-81-957018-5-8
Government evades any judicial enquiry into the holder, Kashinath Baboo, whose process of
status of Zamindars. Hence the Government’s execution was disturbed by them. However, the
reluctance even to permit the Zamindars taking the Governor-General and the members of his
preliminary plea to the Court’s jurisdiction, or its Council, who first appeared, later refused to
reluctance to adopt any constitutional means. submit to the jurisdiction to the Court for acts
The notification issued by it could have no other done by them in their public capacity.
purpose other than the Zamindars were to have 2.2 Observation: The conflict between the
the liberty to decide for themselves whether or not Supreme Court and the Supreme Council reached
they have to submit to the Court’s jurisdiction; if to its climax in the Cossijurah Case. The Supreme
they thought they were not subject to it, they were Court ordered the Sheriff to use force to execute its
not to pay any heed to the Court’s process. The orders and the Supreme Council directed its troops
Government’s position and its show of force was to prevent their execution. The facts of The
indefensible, it should be noted that the Court’s Cossijurah Case make it very clear that the
process of arrest on menseprocess was in itself a Governor-General and the members of his Council
great evil for the Indians generally. The Court were suffering from the superiority complex and
started with issuing a capias with bailable clause on the account of it failed to pay due respect to the
and the amount of bail was usually kept at a high Court. They wanted to settle the issue by force and
figure i.e., 3 lakh rupees. It was not easy for people does not show any interest in the Constitutional
to arrange for the necessary bail. In most of the means open to them. They encouraged the Raja of
cases, the defendants were cast in prison till their Cossijurah also to use force in order to avoid the
plea to the Court’s jurisdiction would be accepted, directions and orders of the Court. In case
and this could take a few moments. Even if at the Supreme Court’s decision would have been against
last the defendant was granted immune from the them, they might challenge it before the King-in-
Court’s jurisdiction, he would have suffered much Council. But the Supreme Court tried to settle the
in body, money and reputation by remaining in the issue by force. Impey strongly wanted to introduce
jail. It merely introduced the system of plaintiff rule of law in India but he was not cooperated by
filing an affidavit to show how and on what fact, the members of the Supreme Council. The most
the defendant was liable to its jurisdiction. This unreasonable step taken by the Supreme Court
was however not an effective safeguard against was that the Zamindars and the landlords
misuse of the Court’s procedure by the inhabiting outside Calcutta should pay no
unscrupulous litigants. attention to the process of the Supreme Court
2. Action taken by the Supreme Court: unless they were the servants of the Company or
The Supreme Court initiated proceedings against had voluntarily accepted the jurisdiction under a

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contract with one of His Majesty’s subject in a case controversial issues as to the jurisdiction of the
exceeding Rs.500. The person inhabiting outside Supreme Court and as to the relation of the
Calcutta was himself to judge in his own case Supreme Court with the Supreme Council and the
whether he or not he was under the jurisdiction of Company’s Court.
the Supreme Court. This was the wrong position.

ISBN: 978-81-957018-5-8
The issue of the jurisdiction must be decided by the 3. Analysis of the Case:
Court and in no case to be decided by the parties 3.1 Critical Appreciation: The real ground
to the Suit. Impey tried to persuade Hastings that of the quarrel between The Court and the Council
it was not right to leave the issue of jurisdiction to went far deeper than any of the topics of grievance
be determined by the Supreme Council, Zamindars on which so much was said. The Supreme Court
or the Landlords. Impey was much shocked when held that everyone in Bengali, Bihar and Orissa
he found that the Judiciary was very weak in was subject to its jurisdiction, to the extent that
executing its orders. He appealed that the Court they were bound to appear and then plead to the
should be armed with the with the additional jurisdiction, if sued in the Supreme Court. The
terror so that it could execute its order properly. Court Jurisdiction was not general but personal
One of the consequences of the Cossijurah case and so it was necessary to decide before the case
was that the jurisdiction of the Supreme Court in could proceed further whether the Defendant was
effect was reduced to Calcutta only. However, on subject to its jurisdiction or not. And this could
the account of Cossijurah case the defects in the have been properly done by the Court alone. On
Company’s Courts came to light and certain the other hand, the contention of the Supreme
changes were introduced in the system of Council was that if anyone not being an English
administration of justice by the Company’s born, or in the pay of the Company, was sued in
Courts. the Supreme Court, he was justified in taking no
The Raja of Cossijurah had gone into hiding to notice to its process. The residents of Calcutta who
avoid the process of the Supreme Court. The were undoubtedly within the jurisdiction of the
Supreme Court issued another notice to the Raja Supreme Court, the defendant himself were the
who did not pay any attention to the notice in view judge whether he is amenable to the jurisdiction of
of the instructions from the Governor-General-in- the Supreme Court or not Raja of Cossijurah
Council. In fact the men of the Zamindar drove should have at least appeared before the Court in
away the Sheriff and other officers who had come obedience of the summons. The Supreme Court
to arrest the Zamindar on a Writ of capias. decided against him. The issue of the Supreme
Thereupon the Supreme Court issued another Writ Court’s jurisdiction therefore remained undecided
for the confiscation of the property of the Raja. since Raja of Cossijurah did not appear before the
The Court sent the Sheriff along with some armed Court to plead its jurisdiction.
constables. The Cossijurah case widened the differences
Passing of the Act of Settlement, 1781 was one of between the Supreme Court and the Supreme
the consequences of the Cossijurah case. The Act Council furthermore. If they thought that the
of Settlement, 1781 was passed by to settle many Court went beyond its legislative powers they

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should to have taken the straight forward legal above given observations that the Supreme Court
course of taking a direct decision from the Court did not exhibit a very healthy tendency conducive
upon the question in which they were directly to the protection of interests of Indians against the
interested and testing its correctness by an appeal oppression of the servants of the Company. It
to the King-in-Council. But instead of taking showed an anomalous character of the Supreme

ISBN: 978-81-957018-5-8
recourse to this lawful procedure they resorted to Court in so far as it is exercised jurisdiction over
violence and lawlessness. It became evident that Indians. The Supreme Court applied harsh English
the judiciary and the executive were working Laws to Indian conditions which proved a
against each other. However, there is no doubt disaster.
that the action of Council in this case was hasty 3.2 Analytical Appreciation: In Cossijurah’s
and reprehensible. It was motivated out of hatred Case the main question involved was whether the
and enmity of the Members of the Council Zamindars were to fall within the jurisdiction of
towards the Supreme Court. Instead of judging for the Supreme Court or not? In the instant case the
themselves, the Councillors should have sought a Supreme Court had held that everyone in Bengal,
ruling from the Supreme Court and in case of Bihar and Orissa was subject to the Supreme
dissatisfaction, they should have preferred an Court jurisdiction whereas the Governor-General
appeal to the King-in-Council in England. But and Council raised the contention that in case the
instead, the Councillors decided to settle things for person is not being an English born or in salary of
themselves by the use of military force which they the East India Company, the Supreme Court was
had under their command undoubtedly, this was incompetent to issue process against such person.
not the wise on their part. But, the proper course should have been that the
In fact the Supreme Court itself was not very sure Raja of Cossijurah should have submitted to the
whether it had jurisdiction over the Zamindars of Supreme Court and thereafter could have raised
the Company residing out of the Calcutta. But the question of jurisdiction before the Supreme
what it really wanted was that its processes should Court. If the Supreme Court had decided against
not have been blatantly defied. It was open for the the Raja of Cossijurah he could have gone in
Raja of Cossijurah to plead himself that he was appeal to King-in-Council. But, instead of
not within the Court’s jurisdiction. He should have adopting the legal course, the Governor General
at least appeared before the Court to raise his plea. and his Council and the Raja took illegal course to
The general notification issued by the Governor resist the process of the Supreme Court.
General and the Council gave complete liberty to Consequently, the question of Supreme Court’s
certain categories of person beyond Calcutta to jurisdiction remained undecided as the Raja of
decide for themselves whether they were employed Cossijurah did not appear before the Supreme
in the service of the Company or voluntarily Court.
placed themselves under the jurisdiction of the
Supreme Court. Obviously, this was the most 4. Historical view point on this case:
untenable situation. According to Swells,
Therefore, it is hereby submitted in the light of the “Supreme Court vested such an extraordinary

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powers and so ludicrously unsuited to the social and by other matters connected with the Supreme Court
political conditions of Bengal, was not merely to and with which the European inhabitants were more
exercise a civil and criminal jurisdiction wholly immediately concerned.”
strange and repugnant to the Indian people. It might According to Mr. Ross,
sit one day on its common law side and give “I am sorry to observe, that the judges, at this

ISBN: 978-81-957018-5-8
judgement to a suitor from proceedings to execution. period, seemed to have lost all temper, particularly
It might on one side adjudge a man to be the in the severe and unexampled manner of confining
absolute owner of property and on the other side Mr. Nayler, Attorney to the Company, who merely
consign him to perpetual imprisonment, if he did not procured information from the office of the number
in his character of trustee, forthwith give it up to of men employed by the Sheriff, and once again gave
those beneficially entitled. In short the whole system directions to the vakeel of the Zamindar to withhold
of English Law and equity, with its rules and his warrant of Attorney;- both, acts done in
customs and process handed down from feudal times obedience to the Governor-General and Council.”
moulded during struggle between secular and
ecclesiastical powers, between church and 5. Criticism:
community, between common law and civil As the Government violently interfered with the
jurisprudence, while time alone had rendered normal working of the court because it had
endurable to the people amongst whom it had grown asserted an unwarranted Jurisdiction over the
up, a people widely different in habit, character and Zamindars who were not subject thereto under the
form of civilisation from any to be found in the East Act or The Charter. This is however; incorrect.
was introduced into India.” This was the result of misinterpretation of the
According to Sir James Stephen, Supreme Court’s position. At no time the Supreme
“The real ground of the quarrel between the Court said that Zamindars were subject to its
Supreme Court and the Supreme Council went far Jurisdiction. The Courts position was that there
deeper than any of the topics of Grievance on which might be some other circumstances making the
so much has been said. The Supreme Court held, as Zamindars liable to its Jurisdiction e.g., a
they could not but holds that everyone in Bengal, Zamindar may be in the Service of the Company
Bihar, and Orissa was subject to its jurisdiction, to and then he would be subject to the Courts
this extent that he was bound. If sued in the Jurisdiction and he would not be exempt from it
Supreme Court to appear to plead to the merely he was a Zamindar. The issue of Cossijurah
jurisdiction. The whole contention of the Council of was different. It related to the preliminary plea
the Supreme Council was not so and if anyone not regarding the Supreme Court’s Jurisdiction. The
being an English born Subject or in the pay of the Supreme Court had a choice to decide about its
Company was sued in Supreme Court he was jurisdiction with respect to Zamindars.
justified in taking no notice of its process.” The Zamindar of Cossijurah could have appeared
According to W. K. Firminger, before the Court and pleaded to its Jurisdiction
“At the time of Cossijurah troubles were at height. which would have been accepted by the court and
Calcutta was thrown into a state of wild excitement thereby stopping it from taking any further action

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against him. However, the Zamindar took a was to provide relief to certain persons who were
different action as he was encouraged by the imprisoned at Calcutta and to indemnify the
Government. Governor-General and the members of his Council
On the plea that Collection of Revenue was and all the officers who acted under the orders of
suffering, the Government resented to show of the Government in interfering with the process of

ISBN: 978-81-957018-5-8
force to stop the Court’s process. This conduct of the Supreme Court.
the Court was definitely reprehensible. On The Act of Settlement expressly laid down that the
explanation for the behavior of the Government in Supreme Court shall have jurisdiction over Indian
this case was that Government did not like the Inhabitants of Calcutta but their cases relating to
Supreme Court should touch the Zamindar for inheritance, succession of lands, rent, goods or
that interfered with the collection of revenue. But contracts, etc., between themselves shall be decided
there is another explanation for the Governments in accordance with their personal laws i.e., Hindu
conduct; it is that Government did not want the law in case of Hindus and Mohammedan Law case
Court to pronounce upon the status of the in case of Muslims. However, where the parties
Zamindars as such. A pronouncement would have belonged to different communities, then the case
deeply affected the revenue Collection whether the shall be decided in accordance with the ‘Law of
court verdict was favorable or unfavorable to the Defendant’.
Zamindar. Along with this many later developments were
seen, including, on 12th March, 1780, the plaintiff,
6. Aftermath: Cossinaut Babu, withdrew his suit against
The historic case discussed above clearly indicates Governor-General and the Raja of Cossijurah.
that the working of Supreme Court and the The Governor-General and councilors refused to
Supreme Council necessitated radical changes and appear before the Court as the Act was during
re-statement of their functions and powers. It was their official capacity. The Council declared that
deemed necessary that the difficulties emerging out persons in Bengal, out of Calcutta need not submit
of this case should be removed. Therefore, the to the Court and assured that even with the use of
principal British inhabitants of Calcutta sent a armed forces they will protect the interests of the
signed a petition to the British Parliament against natives. Army officials refused to allow the
the exercise of the powers by the Supreme Court. Supreme Court’s officials to serve the writ to the
The Governor and the members of the Council members of the Council.
also sent a separate petition for reviewing the The Judges and members of The Supreme Court
working of the Supreme Court. As a result of this, grew angry and felt insulted. As the members of
Parliament enacted the Act of Settlement in 1781 the Council were not served the Writ, the Supreme
which settled in many controversial issues arising Court took an action against Mr. North Naylor,
out of jurisdictional conflicts between the Supreme Attorney General of the Company. He was
Court and the Supreme Council as also the committed to prison and no bail was accepted
Company’s Courts in India. The ultimate result because the punishment was regarded exemplary.
was the Act of 1781, one of the objects of which Though no action was taken against the members

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of the Council, they were not exempted from the Explaining the meaning of ‘constructive
civil action. The Supreme Court would not allow inhabitancy’ Chief Justice Peel in M. Pyne v.
the Councilors to withdraw their appearance. The Hardass Mullick, observed that the doctrine rested
conflict between the Council and Court was in a well-established principle of law and implied
increased. No one was ready for compromise. that actual presence is not legally required to make

ISBN: 978-81-957018-5-8
a man resident of a place. He may reside
7. Related Cases Based on the Facts of the Above constructively through his family, servants, or his
Case: partners. Thus the term ’inhabitant’ was not
The Supreme Court was called upon to decide limited to actual residence or actual inhabiting but
about the limits of its jurisdiction over the extended far beyond it.
ecclesiastical matters of the Indian natives in some In case of Ramgovind Mitter, the question of
other cases. These cases are detailed below: Supreme Court’s power and jurisdiction to issue
In case of Bibi Muttra, a Hindu widow died at Writs was involved. In this case the Court refused
Kanpur leaving behind her huge property in to issue Writ of habeas corpus against the fauzdar
Calcutta. But the Supreme Court ruled that of Chitpore on the ground that it had no authority
property situated in Calcutta could be to issue a Writ jointly as a Court since this power
appropriated only under its orders, i.e., the orders was given to the Judges of the Court to be used
of the Supreme Court. Justifying his stand in the severally and individually.
case Chief Justice Russel pointed out that its In case of Ryots of Garbandho v. Zamindar of
predecessor Mayor Court exercised probate Parlakimedi, the Privy Council expresses a
jurisdiction in respect of the property of nay contrary view and ruled that the Court could issue
person dying within its territorial jurisdiction a Writ jointly in the capacity of the Court’s as a
irrespective of his being a Hindu, Mohammedan whole.
or an Englishmen. The exercise of jurisdiction in
respect of such property was concerned with the 8. Conclusion:
place where the property was situated and not with The use of military force against the execution of
the persons to whom it belonged. writ issued by the Supreme Court was the most
In case of Bampton v. Petumbar Mullick the unpleasant step taken by the Governor General
dispute related to the jurisdiction of the Supreme and his Council. They could have settled the
Court over Indians regarding some land which was question of jurisdiction amicably by making
partly situated within Calcutta and partly outside reference to the King-in-Council. On the other
it. Section 17 of the Act of Settlement clearly hand the general notification of the Governor
provided that the Supreme Court shall has General and his Council gave complete liberty to
jurisdiction over all the inhabitants of Calcutta. the persons residing outside Calcutta to choose
The Supreme Court gave a wide interpretation to themselves whether they were in employment of
the term “inhabitants” in this case which includes Company or they voluntarily submitted themselves
‘constructive inhabitancy’ besides the actual under the jurisdiction of the Supreme Court.
inhabitancy. Under these circumstances in March 1779 a

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

petition, signed by all the prominent British

inhabitants of Bengal, servants of the Company
and Zamindars, was sent to British Parliament
against the Supreme Court’s activities in Bengal.
As a result of this petition, a Parliamentary

ISBN: 978-81-957018-5-8
Committee was appointed. The Committee
presented a detailed report on the conflict between
the Supreme Court and the Council.

9. References:
1. Mittal, J.K., Indian Legal History, Central
Law Agency, Ninth Edition, p.56-58.
2. Jain, M.P., Outlines of Indian Legal and
Constitutional History, Lexis Nexis, Seventh
Edition, p.98-100.
3. Professor, Singh, M.P., Outlines of Legal and
Constitutional History, Universal Law Agency,
Eighth Edition, p.45-49.
4. Professor, Rai, Kailash, Indian Legal and
Constitutional History, Allahabad Law Agency,
Fifth Edition, p.80-84.
5. Dr. Paranjape, N.V., Indian Legal and
Constitutional History, Central Law Agency, Fifth
Edition, p.56-59.
6. Dr. Tripathi, S.C., Indian Legal and
Constitutional History, Central Law Agency,
Third Edition, p.38-39.
7. Gandhi, B.M., Landmarks in Indian Legal
and Constitutional History, Eastern Book
Company, Ninth Edition, p. 137-141.
8. http://www.ibiblio.org, Last updated on
March13, 2014, Web.
9. http://www.slideshare.net, Last updated on
November 18, 2013, Web.

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

CASE COMMENT
MINOR R THR MOTHER H V. STATE NCT OF DELHI & ANR.

ISBN: 978-81-957018-5-8
8
CHAPTER

Author: 1.INTRODUCTION:
ABINAYA. N, B.COM LLB (HONS) – II Right to Life which includes right to live with
YEAR dignity is not only a Fundamental Right, but a
Human Right as well. In this case, the boundaries
of legal considerations are challenged whereby a
minor child/victim of sexual assault was raped
BRIEF: resulting in pregnancy. The victim approached the
present Court for seeking direction to medical
1.Introduction
termination of her pregnancy wherein she was
2. Facts
beyond the prescribed gestation limit of 24 weeks
3.Issue
under MTP Act, 1971. However, the Court granted
4. Provisions
permission for the termination, emphasizing on
5. Precedents
protecting the dignity of the victim rather than
6. Judgement
merely sticking to the provisions of law.
7. Case Analysis
8. Conclusion
2. FACTS:
The facts of this case pertain to a minor victim
NEUTRAL CITATION NO: 2023/DHC/000570 child and the petitioner, R of age 14 years, who
PETITIONER0: Minor R Thr Mother H was sexually assaulted and raped by the accused
resulting in unwanted pregnancy. The child
RESPONDENTS: State Nct Of Delhi & Anr.
pursued primary education up to the 5th grade and
BENCH: Hon'ble Ms. Justice Swarana Kanta has not been able to study further owing to their
Sharma poverty, though the child wished to continue her
education. Her parents worked as construction
JUDGEMENT: 25.01.2023
workers.In September 2022, the victim was sexually

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

assaulted when her mother had gone to work. She II. Section 5 of the MTP Act
neither sought help nor disclosed this incident due III. Article 21 of the Indian Constitution
to fear of its consequences. Despite missing her
periods for four months, she concealed the same 5. Precedent:
since she was scared. Upon her mother noticing The Court placed its reliance on the following cases

ISBN: 978-81-957018-5-8
the physical changes taking place on her body, the whereby the respective Benches in each case issued
victim disclosed about the sexual assault and directions for the medical termination of pregnancy
explained what had happened. At this instance, an of the rape victims beyond the permissible
FIR was registered and the child was taken to gestation period of 24 weeks:
Hospital to conduct Urine Pregnancy Test which Venkatalakshmi v. State of Karnataka: The
was found to be positive. The child was found to appellant was a victim of rape who was 26 weeks
be 24 weeks and 5 days pregnant. She was then pregnant with mild anaemia. The Court found her
taken to the Child Welfare Committee whereby the to be competent of expressing her consent and she
victim along with her mother was brought before wished to terminate her unwanted pregnancy. As
the Board. They stated that they did not wish to such, the Court issued an order directing the same.
continue her pregnancy and the victim wanted to R. v. Union of India Represented by Secretary,
pursue further education. However, the facts Ministry of Women and Child Development & Ors:
revealed that the victim was beyond the The mother of a minor child who was a rape victim
permissible gestation limit mentioned under the of age 16, approached the Court for the medical
MTP Act of 1971 which allowed termination of termination of her daughter’s unwanted pregnancy.
pregnancy exceeding 20 weeks but not exceeding The child was found to be 28 weeks pregnant. The
24 weeks. Hence the victim was directed to Court issued an order to terminate her pregnancy
approach the Court and seek judicial intervention. under Section 5 of the MTP Act, 1971, which
In this regard, the victim’s mother approached the permits termination of pregnancy beyond the said
Court under Article 226, praying to issue gestation limit prescribed under Section 3, when
directions for the medical termination of her the termination is necessary to save the life of the
child’s unwanted pregnancy under the “Medical pregnant woman.
Termination of Pregnancy Act, 1971, as amended
in 2021.” 6. Judgement:
Due to the urgency of the matter, the Court
3. Issue: directed the IO to take the victim before Medical
The Court dealt with the following issue- Board who was requested to submit the medical
I. Whether the Court exercising its power under examination’s report on the same day. A six
Article 226 permit the termination of the member board was formed who observed the
pregnancy of a rape victim of 14 years, when the following:
gestation period is around 25 weeks. a. Ms. R alleges rape and the pregnancy is of 24
weeks (+/-) 1 week by clinical examination and
4. Provisions: Ultrasound
I. Section 3 of the MTP Act, 1971 b. Ms. R expresses her desire to terminate her

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

pregnancy. other rules, regulations and guidelines prescribed

c. Ms. R is physically and mentally fit to give for the purpose. The Court also directed the State
consent for MTP to bear all the medical expenses of the victim for
d. Ms. R was explained the procedure and related the termination of her pregnancy and ensured to be
complications of MTP including need for admitted to a nearby Government School.

ISBN: 978-81-957018-5-8
hysterectomy.
e. Ms. R is having competence to give consent for 7. Case Analysis:
MTP. According to Section 3 of the MTP Act, which
The Medical Board opined that the victim shall be deals with the circumstances wherein pregnancies
allowed to terminate her pregnancy as she is may be terminated by registered medical
physically and mentally fit to undergo the same. practitioners, Section 3(2)(b) states that the
Hence she may be admitted to carry out the termination of pregnancy exceeding twenty weeks
necessary formalities. In this instance, the Court but not exceeding 24 weeks could only be allowed
relied on the precedents stated earlier, wherein in special cases where the continuance of the
termination of pregnancy beyond 24 weeks has pregnancy would result in causing grave injury to
been carried out in case of rape victims. Although the woman’s physical or mental health. In the
the provision under MTP Act of 1971 do not Explanation 2 given under this section, pregnancy
provide for termination of pregnancy exceeding 24 of a woman caused due to rape is presumed to
weeks except in the case of foetal abnormalities, constitute a grave mental injury. Further, the
the High Courts and even the Supreme Court in Central Government through the MTP
several instances had allowed the termination of Amendment Act 2021, laid down the seven
pregnancies exceeding even 24 weeks. The present categories of women under Rule 3B who can
court lay emphasis on the decision made in the terminate their pregnancy between 20 to 24 weeks.
case of Suchita Srivastava v. Chandigarh It includes survivors of sexual assault, rape or
Administration wherein the choice of reproduction incest and minors. In the present case, the victim is
of a woman was regarded as a right to liberty covered under both these categories and hence
under Article 21 of the Indian Constitution. The Section 3(2)(b) is applicable here. When the
Court emphasizes on the fact that the right to life question regarding the termination of the victim’s
dealt under this article includes right to live with pregnancy, who was pregnant beyond 24 weeks
dignity as well and that denying the right to came before the Court, it referred to the previous
terminate the pregnancy amounts to affecting the judgements and focused on upholding the dignity
dignity of the victim in the present case. Further, of the victim. The Court opined that a woman has
the Court recognizes the termination of pregnancy full and complete right to saying Yes or No to
as not just a mere right of a woman sexually motherhood and forcing the victim here, who is a
assaulted, but also regards it as a human right. minor child herself, to continue her pregnancy and
Therefore, the Court granted permission for the deliver the baby would amount to grave miseries.
medical termination of pregnancy of the victim Therefore the Court permitted the medical
and directed the Medical Board to act in termination of the victim’s pregnancy and also laid
accordance with the MTP Act, its rules and all down the guidelines to be adhered to, in cases

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

where the gestation period exceeds 24 weeks, incident of sexual assault has impacted and
which are as follows: affected the lives of the entire family of the victim,
i. Mandating Urine Pregnancy Test while leaving the victim impregnated who is just a minor
examining a victim of sexual assault, which is not child. It is distressful to realise the fact that the
conducted in most of the cases. victim’s parents, who worked as security guards at

ISBN: 978-81-957018-5-8
ii. The victim shall be produced before such construction sites ensuring safety of the place
Medical Board prescribed under Section 3 of the couldn’t provide a safer environment to their very
MTP Act on the same day, when she is found own daughter. The magnitude of pain and
pregnant due to the sexual assault and she is a sufferings the victim would have gone through
major and fit to express her consent for the both physically and mentally, being just a child,
termination of pregnancy. leaves a deeper sense of sadness. However, this case
iii. Where the victim is a minor, she shall be stands as an example in proving that the judiciary
produced before such Board for the termination of aims at protecting and upholding the rights of the
pregnancy upon the consent of her legal guardian. victims despite the presence of certain lacunae in
iv. Submission of medical reports to the Court the statutory provisions.
after examining the victim to save time and pass
on the order expeditiously.
v. The State Government/Union Territory should
ensure that in compliance with the MPT Act, such
Boards are mandated to be constituted in all
Government Hospitals with proper MTP Centres.

When the victim expressed her wish to study

despite not being able to get access to education
due to their poverty, the Court observed that a
majority of the population are not aware of the
implementation of various Government Schemes
from which they could be well benefitted. The
Court ensured that the victim shall be placed in a
Government School nearby, to continue her
education. The Court observed that law and facts
are not the mere things a judge should take into
account while passing an order. It highlighted
taking cognizance of the social contexts, suffering
of the victim’s family and the psychological
trauma of the victim as well, passing the order with
significant importance.
8.Conclusion:
The present case speaks volumes on how a single

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

CASE COMMENT
DOBBS V. JACKSON WOMEN'S HEALTH ORGANIZATION 142 S. CT. 2228 (2022)

ISBN: 978-81-957018-5-8
9
CHAPTER

The Republican party strongly advocated for the

Author:
implementation of anti-abortion laws, with the aim
Saumya Verma,
of persuading the US apex Court to overturn Roe
Ph.D. Scholar, Rajiv Gandhi National
v. Wade. June 24th, 2022 will be remembered as a
University of Law (Punjab),
black day in world human rights’ history, as it
saumyaverma.phd@rgnul.ac.in
decided to revoke the constitutional right to seek
abortion.
BRIEF: In the landmark ruling of “Dobbs v. Jackson
1.Introduction women's health organisation”, the U.S. Supreme
2. Facts Court overturned Roe v. Wade and Planned
3.Issues Involved Parenthood of South eastern Pennsylvania v.
Casey (1972). This verdict was reached by a 5-1-3
4. Judgement
vote. The Supreme Court of the United States,
5. Analysis
which is predominantly conservative, recently ruled
6. Conclusion
that the US constitution does not guarantee the
7. References
right to abortion.The reversal of “Roe v. Wade”
has sparked avid responses not only in the United
1.Introduction States, but also globally, regarding the restriction
In the landmark case of “Roe v. Wade (1973)”, the of a woman's autonomy in making choices about
US Supreme Court recognised the existence of a her reproductive health.The decision has faced
constitutional right to abortion, which was strong condemnation from the EU parliament and
grounded in the implied right to privacy. During other entities. In response, an amendment to
the political climate of the mid-70s in US, the Article 7 of the EU Charter of Fundamental Rights
Republican Party underwent a transformation and has been passed, aiming to include the “Right to
emerged as a staunch advocate against abortion. have safe and legal abortion”.

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In “International Conference on population and foetal abnormality. The act also imposed penalties,
development” held in 1994 in Cairo followed by including licence suspension, on abortion
the “fourth World Conference on Women in providers. Jackson A women's health organisation,
Beijing” in 1995, countries reached a consensus to an abortion clinic, and one of its doctors have
safeguard gender rights and advocate for the raised concerns about the constitutionality of the

ISBN: 978-81-957018-5-8
decriminalisation of abortion. In 2020, abortion Act in federal district court. They claimed that it
was legalised in Argentina, with Uruguay having went against previous rulings of the Court that
done so in 2012. Just three months after the Dobbs recognised a constitutional right to abortion,
v. Jackson case, the apex court of India, in civil specifically “Roe v. Wade” and “Planned
appeal no. 5802 of 2022, made a significant Parenthood of Southeastern Pa. v. Casey”. The
decision. Judges D Y Chandrachud, A.B. District Court ruled in favour of respondents and
Bopanna, and Pardiwala ruled that even issued a permanent injunction against the
unmarried women have the right to seek an enforcement of the Act. The court's reasoning was
abortion within the 20–24-week timeframe if they based on the precedent set by the Court's previous
are in a live-in relationship. cases, which prohibit states from banning abortion
The remarkable change in cultural attitudes before viability. The Fifth Circuit upheld the
globally and the decriminalisation of abortion is decision. The petitioners lodged an appeal,
quite noteworthy. In international arena, “Dobbs contending that the pronouncements in Roe and
v. Jackson” seems to be a regressive move. The Casey were incorrect and asserting that this law
global trend is focused on the legalisation of was constitutional as it met the requirements of
abortion and the provision of safe abortion care rational-basis review.
for women. However, “Dobbs v. Jackson” restricts
the bodily autonomy of women and undermines 3. Issues Involved:
their fundamental right to make decisions about Whether the U.S. Constitution safeguards a
their reproductive health. Not only does this woman's right to undergo an abortion prior to
decision violate the fundamental right to bodily foetal viability, as determined by the significant
autonomy, but it also goes against the democratic “Roe v. Wade” ruling and subsequently upheld in
credentials of the USA. This case commentary the “Planned Parenthood v. Casey” case?
provides a comprehensive examination of the legal
issues and judgement in Dobbs v. Jackson, 4. Judgement
offering a thorough analysis. The Court made a decision to overrule “Roe v.
Wade” and “Planned Parenthood of Southeastern
2. Facts: Pa. v. Casey”. It distinguished that the constitution
The facts revolve around the Mississippi of USA does not explicitly state that women have a
Gestational Act passed in 2018. According to this fundamental right to abortion. The Court also
act, a person is prohibited from intentionally determined that the constitutional challenge to
aborting an unborn human being if the probable Miss. Code Ann. 41-41-191 (2018) was
gestational age of the foetus is over 15 weeks, unsuccessful, as the State's valid concern for
unless it is a medical emergency or there is a severe safeguarding the life of the unborn was taken into

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account. amendment did not entail the right to abortion.

The dissenting opinion was put forth by Justices
5. Analysis: Stephen Breyer, Sonia Sotomayor, and Elena
The given case assesses of the constitutional Kagan. It is lamentable that countless American
validity of the Mississippi Gestational Act, 2018. women have been deprived of their essential

ISBN: 978-81-957018-5-8
According to this act, a woman is prohibited from constitutional rights, according to their
aborting a foetus beyond 15 weeks, unless there is statement.They argue that the majority's decision
a medical emergency or severe abnormality.The to overturn 50 years of historic ruling in Roe v.
Jackson Women’s Health organisation questioned Wade is morally wrong and harms the interests of
the constitutional validity of the subject Act in American women.They argued that the decision to
federal district court.They claimed that it violated continue or terminate a pregnancy should rest
the right to abortion, as established in “Roe v. solely with the individual, rather than being
Wade” and “Planned Parenthood of Southeastern dictated by the government. The government has
Pa. v. Casey”. The district court ruled in favour of an obligation to recognise and uphold a woman's
the Jackson Women's Health organisation. The autonomy, ensuring that she is granted the freedom
petitioners filed an appeal, contending that the and equality to make choices vis-à-vis her
decisions in Roe and Casey were incorrect and that reproductive health.
the Act was constitutional as it met the The overturning of "Roe v. Wade" is a big shift in
requirements of rational-basis review. The how US court’s view things. It really impacts
question at hand was whether it is unconstitutional women's rights to decide about having kids. This
to impose any restrictions on elective abortions ruling against Roe and Casey shows a gap between
before the foetus is able to survive outside the what judges want and key US principles. Looking
womb. at women's gender and reproductive rights is
In its ruling, the US Supreme Court deemed the important in US law. But the new abortion ruling
Mississippi Gestational Act, 2018 to be has people worried about risks to women's
constitutional, noting that the US constitution reproductive freedom in the US. It especially
does not overtly remark the “right to affects marginalized indigenous women's civil
abortion”.Justice Samuel Alito wrote the majority liberties. Recently, research conducted by Diana
opinion, which was supported by Justices Clarence Greene Foster has brought to light the potential
Thomas, Neil Gorsuch, Brett Kavanaugh, and dangers that women may face if they choose to
Amy Coney Barrett.The majority ruled against have abortion in their own homes. Although this
Roe v. Wade and concluded that the 14th method is easy for some people, it can lead to grave
amendment does not ensure an individual's right consequences on the health as well as safety of
to abortion.It maintained this stance without women. It is feared that banning abortion could
delving into the potential impact on women's potentially result in more incidents of domestic
health, lives, and personal autonomy. It argued violence. The ruling against abortion does not
that abortion had been made illegal under prioritize the well-being of women’s mental health.
common law. According to this historical This decision might force the victims of rape to go
proposition, it was argued that the 14th through torturous psychological experiences by

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carrying unwanted foetuses. Such situations can Examining the American legal system reveals a
see females harm themselves. There are conservative judicial approach that does not
congressmen who have suggested laws that would regress on the fundamental right to abortion in
charge a woman who gets an abortion with murder USA.
in America today. Under the proposed law, if a The American Medical Association, in

ISBN: 978-81-957018-5-8
woman miscarried there would be an inquiry into collaboration with the American College of
what killed her foetus. Obstetrics and Gynaecologists, has emphasised the
As an example, in 2021, Britney Poolaw received a importance of providing women with safe and
4-year prison sentence for the unfortunate loss of accessible options for abortion. They voiced their
her 4-month-old foetus. What happens if a woman dissatisfaction with this restrictive ruling.
is suffering from a disease and her baby is lost as a
result? Should she face an investigation for an 6. Conclusion
action in which she has not commit any faults? In This ruling had a significant impression on the
today's society, many working women face American constitutional system, causing concern
significant challenges when it comes to balancing about other rights that the Court has connected to
their careers and the anxieties of pregnancy. Is it the “due process clause of the fourteenth
the answerability of women if miscarriage occurs amendment” using reasoning similar to that in
in that situation? It would be excessive for “Roe v. Wade”. It is crucial for individuals,
lawmakers to exert control over every aspect of academics, legal professionals, and decision-
women's lives. Wealthy women have the means to makers to unite and chart a progression of action
seek abortions in other countries, while those who to advocate for women's right to bodily autonomy.
are less fortunate will be disproportionately It is the accountability of the state to guarantee
impacted by this court ruling due to financial women's reproductive rights and ensure safe access
constraints. to abortion. Ensuring the health and well-being of
The fourth amendment to the U.S. constitution womankind is an absolute priority that cannot be
affirms the importance of safeguarding individuals' compromised.
personal privacy and property from unwarranted
intrusion. The 4th amendment has not been taken 7. References:
into account in the present case. The court has also 1. M McKeegan, The Politics of Abortion: A
failed to consider “Article 5 of the European Historical Perspective, 3 Womens Health Issues
Convention on Human Rights”, which guarantees 127 (1993).
the “Right to security of person”. The 2. Marge Berer, Challenging the US Supreme
infringement upon bodily autonomy goes beyond Court’s Majority Ruling on Roe v. Wade at the
a mere violation of property rights, delving into a International Human Rights Level, 25 Health and
much deeper and more significant form of human rights 195 (2023).
interference. Prohibiting abortion is a violation of 3. Human Rights Crisis: Abortion in the United
a person's own wellbeing. The “equal protection States After Dobbs, (2023),
clause” under American law inherently prohibits https://www.hrw.org/news/2023/04/18/human-
any infringement upon bodily autonomy. rights-crisis-abortion-united-states-after-dobbs.

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4. [1] Planned Parenthood of Se. Pa. v. Casey, 505 news/europe-passes-non-binding-resolution-to-

U.S. 833 (1992). make-abortion-fundamental-right-5420418 (last
5. Lawrence Hurley & Andrew Chung, U.S. visited Apr 22, 2024).
Supreme Court Overturns Roe v. Wade, Ends 11. Mindy Jane Roseman & Laura Reichenbach,
Constitutional Right to Abortion, Reuters, Jun. International Conference on Population and

ISBN: 978-81-957018-5-8
28, 2022, https://www.reuters.com/world/us/us- Development at 15 Years: Achieving Sexual and
supreme-court-overturns-abortion-rights- Reproductive Health and Rights for All?, 100
landmark-2022-06-24/ (last visited Apr 22, 2024). American journal of public health 403 (2010).
6. Risa Kaufman et al., Global Impacts of Dobbs 12. Cora Fernández Anderson, Legalising
v. Jackson Women’s Health Organization and Abortion in Argentina: Social Movements and
Abortion Regression in the United States, 30 Multi-Party Coalitions, 14 Journal of Politics in
Sexual and reproductive health matters 2135574 Latin America 143 (2022).
(2022). 13. Dipika Jain, Supreme Court of India
7. Nora Delaney, Roe v. Wade Has Been Judgement on Abortion as a Fundamental Right:
Overturned. What Does That Mean for America?, Breaking New Ground, 31 Sex Reprod Health
Harvard Kennedy School (Jun. 28, 2022), Matters 2225264 (2023).
https://www.hks.harvard.edu/faculty- 14. Supreme Court Of The United States In
research/policy-topics/fairness-justice/roe-v-wade- Dobbs, State Health Officer Of The Mississippi
has-been-overturned-what-does-mean (last visited Department Of Health, Et Al. V. Jackson
Apr 22, 2024). Women’s Health Organization Et Al. Certiorari To
8. Resolution on the US Supreme Court decision The United States Court Of Appeals For The Fifth
to overturn abortion rights in the United States Circuit, (2021),
and the need to safeguard abortions rights and https://www.supremecourt.gov/opinions/21pdf/19-
Women’s health including in the EU, 1392_6j37.pdf (last visited Apr 22, 2022).
2022/2742(RSP), 15. Roe v. Wade, 410 U.S. 113 (1973).
https://oeil.secure.europarl.europa.eu/oeil/popups/f 16. Elizabeth Chloe Romanis, The End of
icheprocedure.do? (Reproductive) Liberty as We Know It: A Note on
lang=en&reference=2022/2742(RSP) (last visited Dobbs V. Jackson Women’s Health 597 USC __
Apr 22, 2024). (2022), 23 Medical Law International 71 (2023).
9. Include the right to abortion in EU Charter of 17. Mississippi Gestational Age Act, Mississippi
Fundamental Rights, demand MEPs, European Code Ann. §§ 41-41-191 to 41-41-199 (2018)
Parliament, 2022, 18. Introduction, 137 Harvard Law Review
https://www.europarl.europa.eu/news/en/press- (2024), file:///C:/Users/saumy/Downloads/137-
room/20220701IPR34349/include-the-right-to- Harv.-L.-Rev.-1621%20(1).pdf (last visited Apr 22,
abortion-in-eu-charter-of-fundamental-rights- 2024).
demand-meps (last visited Apr 22, 2024). 19. Dobbs v. Jackson Women’s Health
10. Europe Passes Non-Binding Resolution to Organization, Centre for Reproductive Rights
Make Abortion Fundamental Right, NDTV (2018), https://reproductiverights.org/case/scotus-
World, 2024, https://www.ndtv.com/world- mississippi-abortion-ban/ (last visited Apr 22,
2024).

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20. Dobbs V. Jackson Women’s Health

Organization, Legal information Institute, Cornell
Law School (2021),
https://www.law.cornell.edu/supremecourt/text/19-
1392 (last visited Apr 22, 2024).

ISBN: 978-81-957018-5-8
21. Human Rights Crisis: Abortion in the United
States After Dobbs, supra note 3.
22. Dobbs V. Jackson Women’s Health
Organization, supra note 20.
23. Erwin Chemerinsky, Justice Blackmun Got It
Right in Roe v. Wade, Roe v. Dobbs: The Past,
Present, and Future of a Constitutional Right to
Abortion 67 (2024).
24.Fewer rights than their grandmothers’: read
three justices’ searing abortion dissent, The
Guradian, 2022,
https://www.theguardian.com/commentisfree/2022/
jun/24/supreme-court-roe-v-wade-breyer-
sotomayor-kegan (last visited Apr 22, 2024).
25. Linda Greenhouse & Reva B. Siegel, Before
(and After) Roe v. Wade: New Questions About
Backlash, 120 The Yale Law Journal 2028.
26. Josephine Taylor, Sajeel A Shah & Nikolas P
Lemos, The Criminalisation of Miscarriage
Associated with Illicit Substance Consumption
Whilst Pregnant, 63 Medicine, science, and the law
260 (2023).
27. Steven C. Douse, The Concept of Privacy and
the Fourth Amendment, 6 University of Michigan
Journal of Law Reform 154 (1972).
28. rhonda Powell, The Legal Right To Security
Of Person’, Rights As Security: The Theoretical
Basis Of Security Of Person (Online Edition ed.
2019).

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

CASE COMMENT: EQUAL PAY FOR EQUAL WORK: IN REFERENCE TO THE

STATE OF GUJARAT AND ORS. V. DR JA BHATT AND ORS.

ISBN: 978-81-957018-5-8
CHAPTER

ALLOPATHY = AYURVEDA?10
Further, there is only 1 allopathic doctor per 834
Author: Indians, signifying the heavy workload of these
Muskan Suhag, Student, NUSRL Ranchi doctors. However, does the dearth of and lopsided
workload on MBBS doctors entitle them to better
pay as compared to non-MBBS doctors, even though
BRIEF: they belong to the same cadre as BAMS-qualified
1.Abstract doctors? Does such discrimination strike at the heart
2.Introduction of the right to equal pay or does it uphold its true
3.Facts of the Case spirit and acknowledge practicalities? The Hon’ble
4.Arguments Put Forth Supreme Court dealt with such issues in a recent
4.1 The Tikku Pay Commission case. Till now, the majority of cases involving the
5.Prominent Issues right to equal pay dealt with discrimination based on
6.Judgement and Rationale gender, caste, and other arbitrary grounds. This
7.Analysis case, however, is certainly a landmark, since it
8.Conclusion answers the aforementioned questions which deal
9. References with the fundamental tenets of this right and takes
into consideration both practicability and justice.
I.Abstract
In contemporary times, traditional medicine is KEYWORDS: Right to Equal pay; Ayurveda;
recovering its lost sheen, especially due to the allopathy; different educational qualifications;
renewed thrust of the government. However, lopsided workload
traditional medicine cannot match the technological
advances made in allopathy over time. Also, certain 2.Introduction
functions like trauma care, post-mortems, etc. are Ayurveda has been practised and revered in India
carried out only by qualified allopathic doctors. and abroad since time immemorial. It is also

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

believed that surgeries were first executed by the to the same pay benefits as their MBBS
ancient Indian surgeon Sushruta. However, over counterparts. The matter went to the honourable
the years, allopathy took over and with improving HC which upheld the prior decision and further
technologies, better recognition and faith in stated that:
allopathy, Ayurveda lost its sheen due to rapid - ·MBBS and non-MBBS doctors fall within the

ISBN: 978-81-957018-5-8
technological advancements in allopathy, same cadre and are not to be discriminated against
especially in complex treatments and surgical solely based on their educational
operations. Though a renewed emphasis on degrees/qualifications;
traditional medicine by the Ministry of AYUSH - Non-MBBS discharge the same duties as the
created for the purpose and the founding of the MBBS doctors and are therefore entitled to equal
world’s first WHO Centre of Traditional Medicine pay and benefits.
at Jamnagar is noteworthy, the edge and Henceforth, the aggrieved state filed appeals in the
subsequent workload of MBBS doctors cannot be apex court.
matched by the Ayurvedic doctors as of yet.
However, is it right to discriminate against certain 4.Arguments put Forth
professionals based on their qualifications or The appellants contended that the Tikku Pay
workload? A related question of whether Commission’s recommendations for enhancement
Ayurvedic doctors are entitled to the same pay and of the scales of pay applied only to MBBS doctors
benefits as MBBS doctors was recently dealt with and aimed to attract allopathic doctors, to improve
by the honourable Supreme Court in this case. the lacking health infrastructure suffering from a
shortfall of allopathic practitioners. However, there
3.Facts of the Case never was any scarcity of non-MBBS doctors and
The current case involves civil appeals resulting hence, the purpose of the very recommendation is
from an honourable High Court of Gujarat not met and is therefore, inapplicable to AYUSH
common order that upheld the learned Single doctors. Also, it must be noted that the nature of
Judge's decision and stated that respondents with duties and responsibilities performed by Allopathy
BAMS degrees are to be equally treated to medical doctors and AYUSH doctors are completely
professionals with MBBS degrees and are different. Therefore, the order of the honourable
therefore entitled to the benefits of the Tikku Pay HC is erroneous on both facts and right to equal
Commission's recommendations. The respondents, pay for equal work.
who had initially been hired on an ad-hoc basis The respondents argued that once persons with
under the "Community Health Volunteer Medical different educational qualifications are a part of
Officers Scheme" put forth by the GoI before the same cadre, governed by the same rules, (with a
being absorbed by the State of Gujarat in May common pay scale) then the Government cannot
1999, filed writ petitions to extend their eligibility make a classification at a later stage. Also, both
for higher pay scales based on the MBBS and AYUSH doctors perform equal duties
recommendations of Tikku Pay Commission. The and should thus, get paid equally. They also
learned judge of the honourable High Court held, brought attention towards a case wherein the
in favour of the respondents, that they are entitled honourable High Court had held that Allopathy

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

doctors and Ayurved doctors should be treated on 6. Judgement and its Rationale
par insofar as all service conditions are concerned. With regards to the first issue, the hon’ble court
However, the court had not taken up the question relied on the judgements of several cases, including
of whether the AYUSH doctors and Allopathy several cases, signifying the consistent view of the
doctors were performing equal duties and apex court on the matter. For instance, in the

ISBN: 978-81-957018-5-8
responsibilities to be entitled to equal pay (taken former case, it was opined by the hon’ble court,
up in the instant case). that,
4.1.The Tikku Pay Commission: A High-Power “…It is thus clear that in the field of rendering
Committee was constituted with Shri R.K. Tikku professional services at any rate the principle of
as its Chairman, to make better the conditions for equal pay for equal work would be inapplicable. In
service of Government doctors in the year 1990. the instant case, Medical Officers holding the
The recommendations contained in the Report qualification of G.C.I.M., or the qualification of
prepared by the committee were confined only to L.I.M. or the qualification of D.A.M., though in
service doctors holding MBBS degrees and PG charge of dispensaries run by Zilla Parishads,
degrees and degrees in super-specialities and those cannot, therefore, be created on par with each other
on the teaching and non-teaching sides. and if the State Government or the Zilla Parishads
Subsequently, another committee under the prescribe different scales of pay for each category of
chairmanship of the same leader was formed the Medical Officers no fault could be found with such
next year, to consider career improvement and prescription. …”
cadre restructuring. This Committee submitted a Moreover, the hon’ble court negated the argument
separate Report pertaining to practitioners of of the respondents who relied on the judgement of
alternative Systems of Medicine. These were State of Haryana vs. Ram Chander, stating that in
adopted by the state of Gujarat in 1994. Further, the concerned case, the state had itself ignored
equal benefits were bestowed upon MBBS and educational differentials. Therefore, the hon’ble
non-MBBS doctors by the state. The respondents court upheld the high court’s decision since “the
argued based on the adoption of this committee’s appellants themselves in their wisdom thought it fit
recommendations by the state of Gujarat, to ignore this difference in the educational
demanding equal pay for non-MBBS doctors as qualifications”. Henceforth, it was opined by the
well. hon’ble court that such educational qualifications-
based classification, is not in violation of articles 14
5.Prominent Issues and 16 of the Indian constitution.
A couple of main issues dealt with in this case With regards to the second issue, the hon’ble court
were: essentially considered the fact that due to the
1.Whether there can be different pay scales based nature of allopathy and the modern technologies
on educational qualifications even though officers involved, allopathic doctors are required to provide
belong to the same cadre? trauma care, perform emergency duties, carry out
2.Whether the work performed by AYUSH post-mortems, attend to patients in out-patient
doctors is equal to that of allopathic doctors, to be department (OPD) which ayurvedic doctors cannot
entitled to equal pay? carry out. The training of allopathic doctors is

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

rigorous, who have to keep up with upcoming allopathic or non-allopathic, are required to work
technologies and health concerns. However, the in tandem and serve concerning the best remedies
education and scope of ayurvedic doctors are they can provide. Every medical science has its
limited as compared to allopathic doctors. loopholes which another science may rectify. Thus,
Accordingly, the hon’ble court held that India requires a holistic medical system inclusive of

ISBN: 978-81-957018-5-8
“Therefore, even while recognizing the importance all recognized, proven-to-be-effective techniques,
of Ayurved doctors and the need to promote and they deserve an equal amount of reverence.
alternative/indigenous systems of medicine, we Moreover, to bring back traditional medicine to
cannot be oblivious to the fact that both categories the glory it had in the past, the role of the WHO
of doctors are certainly not performing equal work GCTM is of vital importance. With the
to be entitled to equal pay. Hence, Issue No.2 has to improvement of technologies and artificial
be answered in favour of the appellant-State and intelligence in traditional medicine therapies in
against the respondents.” recent years, the centre envisages “integrating the
benefits of traditional medicine with the
7.Analysis achievements of modern science and creating a
The present case establishes a clear landmark comprehensive health strategy.” This would prove
about the right to equal pay. Before this, cases very helpful and cost-effective in catering to the
dealt with peripheral and associated issues. The indigenous and common populace.
majority of cases about this right were concerned
with discrimination based on gender, race, caste, 8.Conclusion
etc. However, this particular case reinstates the This case is salient with regard to the right to equal
essence of the right and clearly demonstrates that pay for equal work. Every right is subject to the
equal pay cannot be demanded if the actualities of fundamental tenets it is based upon and the
the work are disparate. The court aptly noted, circumstances it has been invoked in. The hon’ble
“…We do not doubt that every alternative system of court reiterated the importance of the practicability
medicine may have its pride of place in history. But of the rights bestowed on citizens. The number of
today, the practitioners of indigenous systems of allopathic doctors in India (even across the globe)
medicine do not perform complicated surgical is limited. As per the statistics of the government of
operations. A study of Ayurved does not authorise India, the doctor-people ratio in India is 1:834.[i]
them to perform these surgeries.” Therefore, allopathy alone cannot cater to the
Furthermore, there is no doubt that in needs of the poor populace (since allopathy is often
contemporary times, allopathic doctors have a lot costlier than traditional medicines) and vast
more workload than non-allopathic doctors. As expanses of rural settlements in India (since the
mentioned before, there are many functions health infrastructure is limited and government
delivered by MBBS doctors that BAMS doctors resources are scarce). Also, since AYUSH
cannot. This is not to say that one medical methodologies are indigenous to Indian
methodology is superior to the other. Instead, in communities, people have inherent faith in them
order to cater to the needs of the vast and diverse and resort to them often in common maladies.
populace, all types of medical sciences, be they However, traditional medicines treat gradually.

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

They may not be as effective and efficient as accessed 29 April 2023

allopathy in complex diseases nor can ayurvedic 9.3 PIB, ‘Prime Minister Shri Narendra Modi lays
doctors perform as complex surgeries as allopathic foundation stone of WHO Global Center for
doctors in today’s time. Therefore, the promotion Traditional Medicine at Jamnagar, Gujarat’ (New
of AYUSH methodologies is called for. However, Delhi, 19 April 2022)

ISBN: 978-81-957018-5-8
though the thrust on AYUSH methods is much 9.4 North Delhi Municipal Corporation vs. Dr
needed and must be furthered swiftly, in Ram Naresh Sharma Civ. Ap. No. 4579/2021
contemporary circumstances, the work, its @SLP(C) No. 10159/2019
complexity and duration, for allopathic doctors 9.5 Dr C. Girijambal v. Government of Andhra
are way different from non-allopathic doctors, Pradesh (1981) 2 SCC 155; Shyam Babu Verma vs.
even though both categories belong to the same Union of India (1994) 2 SCC 521; Mewa Ram
cadre. Kanojia vs. All India Institute of Medical Sciences
It is important to remember that the right to equal (1989) 2 SCC 235
pay exists where there is an equal amount of work. 9.6 (1997) 5 SCC 253 p.13
In the instance of MBBS and non-MBBS, 9.7 The Constitution of India, art. 14
however, the workload is lopsided, rightfully 9.8 The Constitution of India, art. 16
entitling allopathic doctors to better pay. The case 9.9 Rishika Gupta, ‘Supreme Court: Allopathy
discussed was not of some arbitrary and Ayurveda Doctors not Entitled to Equal Pay’
discrimination. Instead, in question here was the (Asiana Times, 27 April 2023)
crucial feature of the right to equal pay. The court <https://asianatimes.com/supreme-court-allopathy-
rightfully considered all practical aspects and and-ayurveda-doctors-not-entitled-to-equal-pay/>
delivered the judgement accordingly. Henceforth,
the judgement of the Hon’ble Supreme Court and
the rationale behind it is veracious and apt. With
an increasing thrust on traditional medicine
globally, which India is geared to be a hub of,
would certainly and gradually bring back the
sheen of ayurveda in the medical system and soon
enough, India might see ayurvedic doctors
performing all operations at par with allopathic
doctors. Yet, till then, the instant ruling rings true.

9. References:
9.1 State of Gujarat And Ors. Etc. v. Dr. J.A.
Bhatt And Ors. Etc. [2023] Livelaw SC 350, Civ
Ap. Nos. 8553-8557 2014
9.2 The Editors of Encyclopaedia, "Ayurveda"
(Britannica, 21 September 2022)
<https://www.britannica.com/science/Ayurveda>

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CASE COMMENT: DR. KAVITA YADAV VS SECRETARY, MINISTRY OF HEALTH

AND FAMILY WELFARE DEPARTMENT AND ORS

ISBN: 978-81-957018-5-8
CHAPTER

11
1.Abstract
Author:
This paper delves into the recent judicial
Sakshi Sinha,
pronouncement in the case of "Dr. Kavita Yadav Vs
(2nd-year law student at Chanakya National
Secretary, Ministry of Health and Family Welfare
Law University)
Department and Ors." (2024 (1) SCC 421:2023
Shivika Sharma,
SCC OnLine SC 1067), which addresses the
(2nd-year law student at Chanakya National
contentious issue of maternity benefits for
Law University)
contractual workers under the Maternity Benefit
Act, 1961. The case involves Dr. “Kavita Yadav”, a
Senior Resident (Pathology) appointed on a
contractual basis, who was denied maternity benefits
upon the termination of her contract.
The concerned issue revolves around whether a
BRIEF:
female contractual employee can avail of maternity
1.Abstract
benefits if her claim period surpasses the tenure of
2.Introduction
her contract. Analysis of relevant provisions of the
3. Concerned Issue
“Maternity Benefit Act”, 1961, including Sections 5,
4.Concerned Laws 12, and 27, forms the crux of the legal debate. The
5.Concerned Raised by the Appellant appellant contends that fulfilling the requirements of
6.Contentions Raised by the Respondent Section 5(2) entitles her to maternity benefits,
7. Judgement of the Court irrespective of contract termination, while the
7.1 Lower Court respondent argues against extending benefits beyond
7.2 Supreme Court the contract's duration.
8.Analysis and Conclusion The Supreme Court's verdict, overturning the lower
9. References courts' decisions, holds significance. The court

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upholds the entitlement of contractual workers to Kavita Yadav started her work at the hospital on 6
full maternity benefits, emphasizing Section 27's June 2014 and her employment was extended for 1
overriding effect and Section 12(2)(a)'s protection year on 12 June 2015 and another year on 16 June
against dismissal during pregnancy. While the ruling 2016. From 12 June 2016 to 11 June 2017 her
safeguards women's rights and social security, it employment was extended for 1 year for the last

ISBN: 978-81-957018-5-8
poses challenges for employers, potentially time. On 24th May 2017, she applied for maternity
escalating financial burdens. benefits under the “Maternity Benefit Act, of
This paper critically analyses the implications of the 1961”.
judgment, balancing the interests of employees and The employer informed her that her employment
employers. It highlights the necessity for legislative was terminated on 11 June 2017 under a residential
clarity to mitigate unintended consequences and scheme and it cannot be further extended food she
foster equitable workplace practices. is entitled only to 11 days of maternity benefit. She
approached the Central Administrative Tribunal
KEYWORDS – Maternity Benefit, Contractual (CAT) and Delhi High Court but her contention
Employment, Pregnancy. was rejected by both. It was held by the Delhi High
Court that extending the contract of maternity
Citation: benefit and its duration is not the purpose of the
2024 (1) SCC 421:2023 SCC OnLine SC 1067 “Maternity Benefit Act, of 1961”.
Appellant:
“Dr. Kavita Yadav” 3. Concerned Issues
Respondent: Can a female contract employee avail of maternity
“Secretary, Ministry of Health and Family benefits if her period of claim surpasses the period
Welfare Department and Others”[i] of the contract?
Coram:
“HON'BLE MR. JUSTICE ANIRUDDHA 4. Concerned Laws
BOSE” - Section 5 of Maternity Benefit Act, 1961-
“HON'BLE MR. JUSTICE SANJAY KUMAR” According to the section a woman is entitled to
“HON'BLE MR. JUSTICE S.V.N. BHATTI” maternity benefits if she has worked for 80 days
during 12 months from expected birth.
2. Facts of the Case; - Section 12 of the Maternity Benefit Act, 1961-
Dr. Kavita Yadav was appointed as a Senior emphasizes that any dismissal or discharge of a
Resident (Pathology) by the Government of NCT woman during pregnancy is unlawful if the woman
Delhi at an independent institution named absents herself from work in accordance with “the
Janakpur Super Speciality Hospital. In her letter provisions of the act” and such employer can be
of appointment, it was mentioned that her punished under Section 21 of the Act. Section
appointment was transitory in nature and 12(2(a)) of the Act also contemplates that an
subjected to a residential scheme. It stated about 1 employee who is dismissed or discharged during
year of initial employment that can be renewed pregnancy is still entitled to benefits, extending
after 1 year for a maximum period of 3 years. Dr. them beyond the term of employment.

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- Section 27 of the Maternity Benefit Act, 1961- appellant's claim on the same reasoning of the
According to this section, it has an overriding employer that after the end of the contractual
effect on any agreement or contract of service, law period, she is not entitled to get maternity benefits.
and award that is inconsistent with the provisions The High Court opined that first of all the reliance
of this act. placed by the appellant on Section 5(2) of the Act

ISBN: 978-81-957018-5-8
to assert that a female employee is entitled to
5. Contentions Raised by the Appellant maternity benefits after rendering continuous
a. Requirements that are mentioned under section service for 180 days prior to the expected date of
5(2) of the Maternity Benefit Act,1961 like delivery is irrelevant since the respondents did not
duration of job and number of days employees dispute the petitioner's eligibility for maternity
worked before expected delivery were fulfilled by benefits. The pivotal issue at hand pertains to
doctor Kavita Yadav as a contractual worker. whether the petitioner remains entitled to such
b. At the time of her earlier pregnancy, she had benefits post the expiration of her employment
received maternity benefits from her employer contract on 11-6-2017.
therefore it can be inferred that she was entitled to Secondly, the court said that Sub-section (1) of
similar benefits previously. Section 5 of the Act stipulates that every woman is
c. Dr Kavita Yadav has worked for more than 80 entitled to maternity benefits, with her employer
days during 12 months before the delivery date being liable for payment at the rate of her average
therefore fulfilling another requirement stated in daily wage for the duration of her actual absence
section 5(2) of the Maternity Benefit Act, 1961 due to maternity leave. The use of the term "actual
d. In previous judgments, the court has opined absence" implies that absence during maternity
that even a contractual employee is entitled to leave follows her being “present” at work before
maternity benefits. such leave is granted as mentioned in section 5 (2)
of the act. However, in cases where a woman's
6. Contentions Raised by the Respondent contractual employment has a defined time limit
a. Since the contract period has ended therefore and expires during her pregnancy or maternity
the employer is not liable to pay maternity benefits leave period, there is no concept of her being
under the “Maternity Benefit Act, of 1961”. "actually absent" since she wouldn't be expected to
b. There cannot be a notional extension of a continue working after the termination of her
contract after its term or tenure has ended contract. The purpose of the Act isn't to extend the
providing the employee with all of the benefits of duration of the contract of service. Accepting the
the 1961 Act, as stated in section 5(2) of that act. appellant's argument for granting her 180 days of
The appellant is entitled to any advantages only leave despite her contract ending shortly after
during the contractual period and not after it has starting maternity leave would amount to an
ended. “unintended extension” of her contractual
employment.
7. Judgement of the Court’ 7.2 Supreme Court: The supreme court in the
7.1 Lower Court: Central Administrative first section of the judgment held that employees
Tribunal and High Court, both rejected the are entitled to receive maternity benefits if they

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fulfil the requirement of section 5(2) of the social security aspect of the “Maternity Benefit
Maternity Benefit Act, 1961 irrespective of her Act” and passed the verdict in favor of the female
dismissal. The court while referring to the cases of employee and her child. Whereas in the case of
Deepika Singh vs Central Administrative Tribunal Artiben Thakkar Vs Delhi University of
and Municipal Corporation of Delhi vs Female Pharmaceutical Sciences and Research, the court

ISBN: 978-81-957018-5-8
Worker (Muster Roll) supports its view that held that once the period of the contract ends the
maternity benefits can be given after dismissal of employee is not entitled to any maternity benefit
employment. The court held that section 27 of the under the “Maternity Benefit Act 1961”.
Maternity Benefit Act, 1961 states that maternity These conflicting views were resolved in the case of
benefits prevail over the services and all other Dr. Kavita Yadav Vs Secretary, Ministry of Health
contracts. and Family Welfare Department and Ors, the
In the case that was presented before the court, Dr court is of the view that even though the
“Kavita Yadav” who was the appellant was denied contractual period has ended the employee is
maternity benefits after her dismissal. The court legally entitled to full maternity benefit under
interpreted the laws and stated that although her maternity benefit act.
maternity benefits surpass her period of contract The court stressed the need for financial resources
then also, she is entitled to receive full maternity required at the time of pregnancy and therefore
benefits. As per section 12(2) (a) of the Maternity gave preference to the interest of the employee and
Benefit Act, 1961 the employer's attempt to refuse her infant. It is extremely appreciable that the
maternity benefits on the ground of the duration Supreme Court protects the rights of working
of the contract was considered an exemption. The women by granting maternity benefits beyond their
earlier verdict of the High Court was set aside by period of contract but the liberal interpretation of
this judgment, the employer was asked to pay the court may create difficulties for employers who
maternity benefits within three months of the hire employees on short-term contracts it will
passing of the judgment and all the earlier increase the financial burden on employers.
judgments rejecting the claim of maternity benefits Although the decision of the court is praiseworthy
by applicants were quashed. it can have unintended consequences. so, to
balance the interests of both employee and
8. Analysis and Conclusion of the Case employer legislation is needed to clarify the
The court in the recent judgment of Dr. Kavita position regarding this matter.
Yadav Vs Secretary, Ministry of Health and
Family Welfare Department and Ors. has cleared 9. References
the position of contractual workers claiming i. Dr. Kavita Yadav Vs Secretary, Ministry of
maternity benefit under the “Maternity Benefit Health and Family Welfare Department and Ors. ,
Act,1961”. This decision will assist the employers 2024 (1) SCC 421:2023 SCC OnLine SC 1067
in assigning work to contractual employees. ii. Maternity Benefit Act, 1961, sec. 5
Earlier in the judgment of Dr. Babasaheb iii. Maternity Benefit Act, 1961, sec 12(2)(a)
Ambedkar Hospital, Government of NCT Delhi iv. Maternity Benefit Act, 1961, sec. 27
vs. Krati Mehrotra, The court emphasized the v. Maternity Benefit Act, 1961, sec. 5(2)

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

vi. Maternity Benefit Act, 1961, sec. 5(2)

vii. Deepika vs Central Administrative Tribunal,
2022 SCC OnLine SC 1088
viii. Municipal Corporation of Delhi vs. Female

ISBN: 978-81-957018-5-8
Workers (Muster Roll) and Ors., AIR 2000 SC
1274, (2000) 3 SCC 224
ix. Maternity Benefit Act, 1961, sec. 27

x. Maternity Benefit Act, 1961, sec 12(2)(a)

xi. Dr. Kavita Yadav Vs Secretary, Ministry of
Health and Family Welfare Department and Ors. ,
2024 (1) SCC 421:2023 SCC OnLine SC 1067

xii. Dr. Baba Saheb Ambedkar Hospital,

Government of the NCT of Delhi v. Krati
Mehrotra,2022 SCC OnLine Del 742: (2022) 1
CLR 882

xiii. Artiben R. Thakkar v. Delhi Pharmaceuticals

Science and Research University, 2019 SCC
OnLine Del 10520
xiv. Dr. Kavita Yadav Vs Secretary, Ministry of
Health and Family Welfare Department and Ors. ,
2024 (1) SCC 421:2023 SCC OnLine SC 1067

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CASE COMMENT: JOSEPH SHINE V UNION OF INDIA

Supreme
Court of
India

ISBN: 978-81-957018-5-8
TER Y
DUL
A
CHAPTER

12
1.Introduction
Author:
In India, the concept of adultery was founded on
Gnaneswari S,
masculine chauvinism and patriarchy. Any guy
B.COM LL.B. (Hons) -II
who engages in sexual contact with a woman who
is another man's wife is guilty of this offense.
BRIEF: Additionally, it won't be considered adultery if the
1.Introduction husband approves of or helps to carry out the
2. Background of Section 497 of IPC conduct. A woman has no rights if her husband has
3. Facts an extramarital affair. Adultery was viewed as an
4. Issues immoral behavior in the past, committed by either
5. Provisions a married man or woman. In India, a woman who
commits adultery is not viewed as the offender but
6. Judgement
rather as a victim who has allowed herself to be
7. Case Analysis
lured into it by a man. Our fundamental values of
8. Conclusion
equality, nondiscrimination, and the freedom to
9. References
live with one's dignity. Up to 60 nations, including
South Korea, South Africa, Uganda, Japan, and
others, have made adultery a criminal offense due
CITATION: AIR 2018 SC 4898 to its discriminatory nature toward women and
PETITIONER: Joseph Shine invasion of their right to privacy. Even Lord
RESPONDENT: Union of India Macaulay, the man who drafted the penal code,
BENCH: Dipak Mishra, R.F.Nariman, disagreed with its inclusion as an offense and said it
A.M.Khanwilkar, D.Y.Chandrachud, Indu would be better to leave it as a civil violation. The
Malhotra legal system is always developing, and numerous
JUDGEMENT: 27.09.2018 recent rulings have expanded the scope of
[ ]

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fundamental rights to reflect shifting social norms of Section 497 in this case has not come up, but it
and growing individual liberties. Together with says that the mere fact that the applicant is a
them, this ruling makes history by overturning a woman makes her completely immune to the
158-year-old statute that has become obsolete due charge of adultery and cannot be charged with that
to shifting social and moral norms. crime.

ISBN: 978-81-957018-5-8
2. Background of Section 497 of IPC
The constitutional validity of Section 497 of the 3. Facts
Indian Penal Code and Section 198 of the Criminal The petition was filed by Joseph Shine, a non-
Procedure Code has been debated several times by resident of Kerala who has raised questions on the
the Supreme Court of India. constitutionality of section 497 of IPC. The main
It started with the case of Yusuf Abdul Aziz v. State reason for this petition was to protect Indian men
of Bombay, where a man was charged with from being punished by vengeful women or their
adultery under Section 497 of the Indian Penal husbands for extramarital affairs. A close friend of
Code. But when the appeal was filed, the husband the petitioner in Kerala committed suicide after a
approached the Bombay High Court to review the female colleague accused him of malicious rape.
constitutional validity of the provisions of Article Furthermore, Section 497 is an obvious
228 of the Constitution of India. The case was manifestation of gender injustice, authoritarian
decided against the husband and judge Chagla imperialism and male patriotism. The traditional
observed based on the presumption in section 497. framework in which Section 497 was drafted is no
longer applicable in today's society.
In another case of V Revathi v. The Union of India
The court held that this section did not allow the 4. Issues
offending husband to sue her or the offending a. Whether section 497 of Indian Penal Code is
spouse for disloyalty to him. Because no spouse unconstitutional?
can press charges against disloyal or abusive b. The petitioner wanted certain problems with
spouses. Therefore, this section does not section 497 to be addressed:
discriminate on the basis of sex. c. Adultery law provides that man to be
punished in case of adultery but no action is
In the case of Sowmithri Vishnu v. Union of India suggested for the women. Hence, it made the
where the court was challenged on three grounds - gender neutral.
Section 497 does not give a woman the right to d. As per section 497, there is no legal provision
present her husband with whom her husband has that a woman can file a complaint of adultery
committed adultery. That section does not give a against her husband.
woman the right to prosecute her husband for e. According to section 497, if the husband gives
adultery. This section does not include cases where his consent for such an act then such act is no more
the husband had sexual relations with an considered as a crime. Therefore, women are
unmarried woman. treated as an object under adultery law.
In the case of W. Kalyani v. State through Inspector 5. Provisions
of Police and another, where the constitutionality a. Section 198 (2) of The Code of Criminal

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

Procedure – defines that only the husband can be relationship of man and woman. Sexual autonomy
the aggrieved party. falls within the area of personal liberty under
b. Section 479 of the Indian Penal Code – defines article 21 of Constitution of India. It is very much
punishment for adultery. important in a relationship to have the
c. Article 14 – Right to equality – Adultery only expectations that one has from another. When

ISBN: 978-81-957018-5-8
prosecuted men and women and hence, it was both the spouses respect each other with equality
considered to be a violation of Article 14. and dignity then only the respect for sexual
d. Article 15(1) – prohibits the State from autonomy is established.
discriminating on the grounds of sex – The law b. Adultery is no longer a criminal offence: A
only considered the husbands as the aggrieved crime is committed against the society as a whole
party and no charges against women. whereas adultery is a personal issue. Adultery does
e. Article 21 – protection of life and personal not fit into the ambit of crime as it would otherwise
liberty – Women were treated as the property of invade the extreme privacy sphere of marriage.
their husbands under this law, which is against However, adultery can be considered as a civil
their basic dignity and individuality. wrong and is a valid ground for divorce
c. Section 497 is arbitrary: The entire judgment
6. Judgement declared that Section 497 is arbitrary. As a
In this case, The Hon’ble Supreme Court struck husband, he can give his consent to allow his wife
down Section 497 in this landmark case and held it to have relations with another person. Therefore,
unconstitutional and violative of Articles 14, 15 the section does not protect the "dignity of
and 21 of the Constitution of India. It also marriage." This section preserves the property
asserted that Section 198(2) of the CrPC was rights of a husband over his wife. This section does
unconstitutional to the extent as and when it is not allow a wife to file a petition against her
applied to Section 497 of the IPC. This decision husband. This section does not contain provisions
has revoked a lot of prior judgments that about a married man having an affair with an
criminalized adultery. unmarried woman.
The court had observed that law is based on d. Freedom of an individual to make choices in
certain ‘Societal presumption’. In four different respect of his/her sexuality is the most intimate
judgments. The judgment held the following choice of life and thus should be protected from
things: public censure and criminal sanction.
a. Section 497 is archaic and is constitutionally e. Wrongs punishable from penal sanction must
invalid: Section 497 disposes women from her be public wrong not merely act committed against
autonomy, dignity and privacy. It is considered as an individual victim.
the encroachment on her right to life and personal f. There can’t be masculine dominance in
liberty by accepting the notion of marriage which community or patriarchal monarchy or husband
overthrows the true equality. Equality is monarchy over wife.
overthrown by adopting the sanctions of penal g. Right to live with dignity also includes the
code to a gender based approach to the right not to be subjected to public censure and

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 AMUCM LAW SOCIETY REVIEW, SECOND EDITION | 2024

------
punishment by the state when absolutely of societal norms and legal interpretations,
----- necessary. If there can be civil remedy to serve the highlighting the judiciary's role in promoting
purpose then that should be ought to be enforced. inclusive and rights-based approaches to intimate-----
If the purpose can be served by civil sanction, then relationships. The Supreme Court's nuanced
why penal sanction. analysis in this case reflects a broader shift towards

ISBN: 978-81-957018-5-8
h. Criminal law should be in consonance with a rights-centric legal framework, signaling a
constitutional morality; the provision of adultery departure from moral policing and towards a more
enforces the construct of marriage where the modern understanding of personal liberties and
partner has to surrender sexual autonomy to equal treatment under the law. This case not only
another. addresses the constitutional validity of adultery
i. Section does not pass the test of laws but also sets a precedent for future cases
constitutionality and it is opposed to the involving issues of gender justice, privacy, and
constitutional guarantee of liberty and dignity. individual freedoms, thereby contributing
The Supreme Court by this judgment has significantly to the progressive evolution of Indian
discriminated adultery as an offense but the court legal jurisprudence."
added that adultery will still remain a ground for
divorce. Undoubtedly this historic verdict of the 8. Conclusion
Supreme Court is based on securing dignity of In this case, the Hon’ble Supreme Court struck
people, obviating punishment when civil remedy down the archaic provision of the IPC- Section 497
like divorce is available to the aggrieved husband, that considered adultery an offense. The main
thus dispensing with the post millennial archaic problem with the Section was that it treated
law. The Supreme Court finally held that Section women as victims of an offense and like the
497 is unconstitutional hence it is struck down as a property of their husbands. As per Section 497, it
penal provision for women and treated them as was not an offence if a man engaged in sexual
“chattel of husbands”. relations with a woman after obtaining consent
from her husband. The judgment decriminalized
7. Case Analysis adultery. After this judgment was passed, adultery
The Supreme Court's decision in this case marks a was one of the grounds for divorce but no longer a
watershed moment in Indian jurisprudence, as it criminal offense that attracted a punishment of up
strikes down the archaic Section 497 of the IPC, to 5 years of imprisonment. The Central
recognizing the fundamental rights of equality and Government in the affidavit before the Apex Court
privacy within intimate relationships. By had said that it would be against the sanctity of
decriminalizing adultery and emphasizing the marriage to dilute the offense of adultery.
principle of individual autonomy, the court's
judgment in Joseph Shine v Union of India aligns
with global trends towards progressive legal
reforms that prioritize personal freedoms and
gender equality. It underscores the evolving nature
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DEPARTMENT OF LAW

AMUCM

ALIGARH MUSLIM UNIVERSITY

CENTRE MURSHIDABAD