Corporate social responsibility.  An Overview

 

The concept of Corporate Social Responsibility has gained recognition and significance with the evolution of the global economy into a borderless and increasingly integrated world. Commercial world gradually has begun to perceive CSR as a value-added strategy enhancing corporate reputation and, more importantly financial performance. The concept of CSR means that organization has moral, ethical and philanthropic responsibilities in addition to their responsibilities to earn a fair return for investors and comply with the law.

 

DEFINITION

While there may be no single universally accepted definition of CSR, each definition that currently exists underpins the impact that businesses have on society at large and the societal expectations of them. Although the roots of CSR lie in philanthropic activities (such as donations, charity, relief work, etc.) of corporations, globally, the concept of CSR has evolved and now encompasses all related concepts such as triple bottom line, corporate citizenship, philanthropy, strategic philanthropy, shared value, corporate sustainability and business responsibility. This is evident in some of the definitions presented below:

The EC[1] defines CSR as “the responsibility of enterprises for their impacts on society”. To completely meet their social responsibility, enterprises “should have in place a process to integrate social, environmental, ethical human rights and consumer concerns into their business operations and core strategy in close collaboration with their stakeholders”.

The WBCSD defines CSR as[2] “the continuing commitment by business to contribute to economic development while improving the quality of life of the workforce and their families as well as of the community and society at large.”

Corporate Social Responsibility is nothing but how the business takes responsibility for social, economic and environmental impacts it produces from its operation or products. It also includes the labor standard, employee relations and human rights.[3]

The Canadian Centre for Philanthropy: CSR is “a set of management practices that ensure the company minimizes the negative impacts of its operations on society while maximizing its positive impacts”.

Peter F. Drucker refers to CSR as “a way companies manage the business processes to produce an overall positive impact on society.”

According to the UNIDO[4] , “Corporate social responsibility is a management concept whereby companies integrate social and environmental concerns in their business operations and interactions with their stakeholders. CSR is generally understood as being the way through which a company achieves a balance of economic, environmental and social imperatives (Triple-Bottom-Line Approach), while at the same time addressing the expectations of shareholders and stakeholders. In this sense it is important to draw a distinction between CSR, which can be a strategic business management concept, and charity, sponsorships or philanthropy. Even though the latter can also make a valuable contribution to poverty reduction, will directly enhance the reputation of a company and strengthen its brand, the concept of CSR clearly goes beyond that.”

From the above definitions, it is clear that:

  • The CSR approach is holistic and integrated with the core business strategy for addressing social and environmental impacts of businesses.
  • CSR needs to address the well-being of all stakeholders and not just the company’s shareholders.
  • Philanthropic activities are only a part of CSR, which otherwise constitutes a much larger set of activities entailing strategic business benefits.

Corporate social responsibility is predominantly considered as a western phenomenon due to strong institutions, standards, and appeal systems which are weak in developing countries of Asia (Chappie and Moon, 2005).

Despite the growing awareness and popularity of the term CSR, there is no general consensus as to what it actually means.[5] In fact, CSR is often used interchangeably with various other terms, such as corporate philanthropy, corporate citizenship, business sustainability, business ethics, and corporate governance.[6] Although these other terms do not all mean the same thing, there is one underlying thread that connects them all – the understanding that companies have a responsibility not just toward shareholders, but also toward other stakeholders, such as “customers, employees, executives, non-executive board members, investors, lenders, vendors, suppliers, governments, NGOs, local com- munities, environmentalists, charities, indigenous people, foundations, religious groups and cultural organizations.”[7] All of these stakeholders are equally important to a corporation, and it should therefore strive with sincerity to fulfill the varied expectations of each.

[A corporation] has a role to play in treating its employees well, preserving the environment, developing sound corporate governance, supporting philanthropy, fostering human rights, respecting cultural differences and helping to promote fair trade, among others. All are meant to have a positive impact on the communities, cultures, societies and environments in which companies operate.[8]

It is a known fact that a corporation is owned by shareholders who provide risk capital in expectation of a financial return. Hence, the primary goal of corporate management is to run the business profitably to maximize shareholder value in the form of dividend and appreciated stock prices.[9] But this is an extremely narrow interpretation of profitability, and one which focuses on one stakeholder while ignoring the contribution of others in the success of the enterprise. Shareholders are important stakeholders as they are the ones who have invested their money in the financial equity. But a modern company has several types of equity in addition to financial equity. Investments in these other equities are made by a variety of stakeholders.

For instance:

  • Intellectual equity: Employees invest their ideas in improving technological processes, product quality, cost management, marketing techniques, and customer service. These initiatives usually go far beyond the call of normal duty for which they are compensated.
  • Goodwill equity: The community around a firm invests its goodwill; it continues to support operations in spite of inconveniences it suffers in the form of, for example, environmental pollution, and traffic congestion.
  • Growth equity: The government’s investment is in the form of law and order, infra- structure development, and economic policies conducive to business growth.
  • Knowledge equity: Educational institutions invest their expertise through their re- search and their students.[10]

CSR is also considered as the commitment of business to con tribute to sustainable economic development by working with employees, their families, the local community and society at large to improve their lives in ways which are beneficial for both business and development (World Business Council, 2002).

Towards developing a rationale for Corporate Social Responsibility[11]
CSR goes by many names, which include: corporate citizenship, corporate philanthropy, corporate giving, corporate community involvement, community relations, community affairs, community development, corporate responsibility, global citizenship, and corporate societal marketing. It makes no difference what this social commitment of companies is called. It is a NEW way of doing business to cater to the needs of the market and its stakeholders. Social responsibility is the responsibility of an organization for the impacts of its decisions and activities on society and the environment, through transparent and ethical behavior that is consistent with sustainable development and the welfare of the society; takes into account the expectations of stakeholders ; is in compliance with applicable law and consistent with international norms of behavior and is integrated throughout the organization.This is a working definition by ISO 26000 working group on social responsibility (Sydney, February 2007)

CSR is the way in which an organization strikes a balance between economic, social and environmental imperatives on the one hand and the expectations and welfare of the shareholders on the other. This implies that social responsibility or rather its execution involves a well planned strategy. Assessment of the social environment, formulation of objectives, devising operational plans and programmes, monitoring social progress, assessment of social and economic impact and summary of outcomes and performances are of utmost importance.In other words CSR implies that the profits of corporate houses should be diverted to socially responsible activities for the benefit of the society. Companies can exert an emphatic influence over the quality and credibility of its products in the market through its CSR activities, which has a great impact on society and also provides better synergy returns to their business. In fact CSR is the impact of organizational activity on society. CSR is becoming an increasingly important activity to businesses nationally and internationally. As globalization accelerates and large corporations serve as global providers, these corporations have progressively recognized the benefits of providing CSR programs in their various locations. CSR activities are now being undertaken throughout the globe.

The rationale for CSR has been articulated in a number of ways. In essence it is about building sustainable businesses, which need healthy economies, markets and communities, which again necessitate all business houses whether private or public to carry out CSR activities. The government has declared it compulsory for industries to be socially responsible. They cannot ignore the society while carrying out production and amassing profit. A vibrant association or a high degree of correlation can be revealed between CSR and good public governance. Earlier this was neither specified nor executed, as the industrial policy resolutions failed to point out the real role of industries in society. Infact the real costs that the society incur, are primarily due to the presence and operation of the industrial houses. Public sector units may have to shell out 2-5% of profit in CSR. CSR for a PSU may no more be a photo opportunity for its chairman but would involve people-centric projects to be funded by 2-5% of the company’s net profit.

Today’s consumers hold companies to a higher standard. They’re looking for more than just material products or quality services when choosing a company to work with: Nine in 10 consumers expect companies to not only make a profit, but also operate responsibly to address social and environmental issues, according to a study by Cone Communications. Eighty-four percent of global consumers also said they seek out responsible products whenever possible.[12]

Recognizing how important social responsibility is to their customers, many companies now focus on and practice a few broad categories of corporate social responsibility (CSR).

  1. Environmental efforts:One primary focus of corporate social responsibility is the environment. Businesses regardless of size have a large carbon footprint. Any steps they can take to reduce those footprints are considered both good for the company and society as a whole.
  2. Philanthropy:Businesses also practice social responsibility by donating to national and local charities. Businesses have a lot of resources that can benefit charities and local community programs.
  3. Ethical labor practices:By treating employees fairly and ethically, companies can also demonstrate their corporate social responsibility. This is especially true of businesses that operate in international locations with labor laws that differ from those in the United States.
  4. Volunteering:Attending volunteer events says a lot about a company’s sincerity. By doing good deeds without expecting anything in return, companies are able to express their concern for specific issues and support for certain organizations.

Examples of corporate social responsibility

While many companies now practice some form of social responsibility, some are making it a core of their operations. Ben and Jerry’s, for instance, uses only fair trade ingredients and had developed a sustainability program for dairy farms in its home state of Vermont. Starbucks has created its C.A.F.E. Practice guidelines, which are designed to ensure the company sources sustainably grown and process coffee by evaluating the economic, social and environmental aspects of coffee production.

 

CORPORATE SOCIAL RESPONSIBILITY (CSR) IN INDIA

The beginning of Twenty first century in India has seen the term CSR coming to the forefront of development discourse. Interestingly, the Indian state is taking lead in defining the meaning, extent and scope of CSR and creating a context within which the on-going CSR discourse is emerging. In the process, it is also providing legitimacy to the role of CSR in development.

Corporate social responsibility (CSR), also known as sustainable responsible business (SRB), or corporate social performance, is a form of corporate self-regulation integrated into a business model. Ideally, CSR policy would function as a built-in, self-regulating mechanism whereby business would monitor and ensure their adherence to law, ethical standards, and international norms.

Corporate Social Responsibility (CSR) Provisions As per Companies Act, 2013, CSR has become mandatory in India. The Ministry of Corporate Affairs (MCA) in exercise of its powers conferred by Section 1(3) of the Companies Act, 2013 (the Act) and vide notification dated 27th February 2014, notified 1 st April 2014 as the date on which the provisions of Section 135 and Schedule VII of the Act shall come into force.

 

Section 135 read with Companies (CSR Policy) Rules, 2014

Applicability

Section 135 is applicable to every Company (including its holding or subsidiary, and a foreign Company having branches/project office in India) which meets any of the following criteria during any financial year-

  • Net worth of Rs. 500 Crore or more
  • Turnover of Rs. 1,000 Crore or more
  • Net Profit of Rs. 5 Crore or more.

Every Company which does not meet the above mentioned criteria for 3 consecutive financial years is not required to –

  • Constitute a CSR Committee; and
  • Comply with provisions of the Section 135 of the Act till such time it meets the criteria mentioned above.

Definition of Net Profit

For an Indian Company Net profit as per the Financial Statements prepared under the Act or Companies Act, 1956 and it shall not include the following-

  • Any profit arising from any overseas branch or branches of the Company, whether operated as a separated company or otherwise; and
  • Any dividend received from other Companies in India which are covered under and complying with the provisions of Section 135 of the Act.

For Foreign Company

Net profit as per the Profit and Loss Account prepared in terms of Section 381(1) (a) read with Section 198 of the Act.

Contribution

Every applicable Company should spend in every financial year at least 2% of the ‘average net profits’ of the Company, made during 3 immediately preceding financial years.

 ‘Average net profit’ shall be calculated in accordance with the provisions of Section 198 (sec 198 relates to calculation of net profits for the purpose of determining the limits for managerial remuneration)

If the Company fails to spend such amounts towards CSR activities, the Board is required to provide reasons for not spending the amount in its report laid before the Company in the Annual General Meeting.

CSR Committee of Board

CSR Committee of Board should consist of 3 or more Directors, out of which at least 1 director shall be Independent Director subject to the following criteria-

  • An unlisted Public Company or a Private Company shall have its CSR Committee without an Independent Director.
  • A Private Company which has only 2 directors on its Board shall constitute its CSR Committee with 2 such directors.
  • A Foreign Company will have at least 2 persons on its CSR Committee out of which one person shall be specified under Section 380(1)(d) of the Act and the other person will be nominated by the Foreign Company.

The Directors Responsibility Statement shall disclose the composition of the CSR Committee.

Role of CSR Committee CSR Committee shall-

  • Formulate and recommend to the Board, a CSR Policy which shall indicate the activities to be undertaken by the Company as specified in Schedule VII.
  • Recommend the amount of expenditure to be incurred on the activities mentioned above. s Monitor the CSR Policy of the Company from time to time. Role of Board of Directors (BoD) in respect to CSR
  • Approve the CSR Policy for the Company after taking into account the recommendations made by the CSR Committee and disclose the contents of the CSR Policy in the Directors Report and also place it on the Company’s website.
  • Ensure that the activities which are included in the CSR Policy of the Company are undertaken by the Company.
  • The Company shall give preference to the local area and areas around it where it operates for spending the amount earmarked for CSR activities.

 

Schedule VII of the Act

MCA in exercise of its power conferred by Section 467(1) of the Act and vide notification dated 27 February, 2013 has amended Schedule VII of the Act.

 

Salient Features of Companies (CSR Policy) Rules, 2014

MCA, in exercise of its power conferred under Section 135 and subsections (1) and (2) of Section 469 of the Act and vide notification dated 27 February, 2013 has notified Companies (CSR Policy) Rules, 2014.(the Rules). These Rules will be effective from 1 st April, 2014.

CSR

CSR means and includes but is not limited to –

  • Projects or programs relating to CSR activities indicated in Schedule VII of the Act ; or
  • Projects or programs relating to activities undertaken the Board in accordance with the recommendations of the CSR Committee as per the CSR policy of the Company. The CSR Companies Act, 2013 Tracker II For Private Circulation CNK & Associates 5 policy shall cover activities specified in Schedule VII of the Act but excludes activities undertaken in the normal course of business of the Company.

 CSR Activities

  • CSR activities undertaken by the Company should be as per its CSR Policy and can be in the form of projects or programs or activities but should not include activities undertaken in its normal course of business.
  • CSR activities may be undertaken through a registered trust or a registered society or a Company established by the Company or its Holding or Subsidiary or Associate Company under Section 8 of the Act subject to the following conditions-
  • If the trust, society or Company is not established by the Company then it shall have an established track record of 3 years in undertaking similar projects or programs; and
  • The Company has specified the project or programs to be undertaken through these entities, the modalities of utilisation of funds on such projects programs and the monitoring and reporting mechanism.
  • A Company may also collaborate with other Companies for undertaking CSR Activities in such a manner that CSR Committees of respective Companies are in a position to report separately on such activities.
  • CSR activities undertaken in India only shall amount to CSR Expenditure.
  • CSR activities which benefit only the employees of the Company and their families shall not be considered as CSR activities.
  • Companies may build CSR capacities of their own personnel as well as those of their Implementing agencies through Institutions with established track records of 3 financial years but such expenditure shall not exceed 5% of total CSR expenditure of the Company in 1 financial year.
  • Contribution to any political party whether directly or indirectly is not considered as CSR activity.

 

CSR Policy

  • CSR activities included in CSR Policy should be related to the activities included in Schedule VII of the Act.
  • CSR Policy of the Company shall specify that the surplus arising out of the CSR activities shall not form part of the business profit of the Company.

CSR Reporting

  • In case of an Indian Company, BoD Report shall include an annual report on CSR activities as per the Annexure
  • In case of a Foreign Company, the Balance Sheet filed under Section 381(1)(b) of the Act shall contain an Annexure regarding report on CSR.

CONCLUSION

Corporations do not exist in isolation. Therefore, they should feel some level of responsibility for the community of which they are a part, and should work for the development and progress of that community and society at large. The idea of being a socially responsible company means recognizing obligations and going beyond simple compliance with the law. It is absolutely essential that corporations make sincere efforts to fulfill their obligations because development based solely on economic growth paradigms is unsustainable, and not conducive.

Thus Corporate Social Responsibility (CSR) is about how companies manage the business processes to produce an overall positive impact on society. Thus companies consider the interests of society by taking responsibility for the impact of their activities on customers, suppliers, employees shareholders, communities and other stakeholders, as well as the environment. This is seen to extend beyond the statutory obligation to comply with legislation as organizations are voluntarily taking further steps to improve the quality of life for employees and their families as well as for the local community and society at large. If a company chooses to follow the way of CSR, it will integrate ethical concerns in its activities and in its interaction with all the stakeholders. This implies that the corporate units function in such a way that their CSR activities in all likelihood actually reach out to the beneficiaries –the society in general. The ethical considerations are aimed at preparing the groundwork for expecting the correct reaction or response of their CSR generated activities

 

[1] http://ec.europa.eu/enterprise/policies/sustainablebusiness/corporate-social-responsibility/index_ en.htm

[2] http://www.wbcsd.org/work-program/businessrole/previous-work/corporate-social-responsibility. aspx

[3] www.ask.com

[4] http://www.unido.org/what-we-do/trade/csr/whatis-csr.html#pp1[g1]/0/

[5] 9. Juno Consulting, Making Sense of Corporate Responsibility 1 (2005), available at http:// wwwJunoconsultingxom.aii/articles/Making_Sense_of_Corporate_Social_Responsibility_Par

[6]Id.

[7] Id.

[8] Id.

[9] 3. See S.K. Chakraborty et al., Management Paradigms Beyond Profit Maximization, 29 Vikalpa: The J. for Decision Makers 97, 106 (2004).

[10]  Id. at 105.

[11]  Chakraborty, Saheli, Corporate Social Responsibility and the Society, businessthatcares.blogspot.com/2010/08/corporate-social-responsibility-and.html visited on 11th April, 2017 at 6:30 a.m.

[12] www.businessnewsdaily.com/4679-corporate-social-responsibility.html visited on April 11 ,2017 at 7:00 a.m.

Admissibility of DNA in Indian legal system

Abstract

DNA is an abbreviation of Deoxyribo nucleic acid. It’s an organic substance which is found in every living cell and gives an indiual a personal genetic blue print.it can be extracted from blood, saliva, semen, hair, bones and other organs of the body. DNA technique now enjoys a legitimacy all over the world. The technique helps the identification of criminals on scientific lines. However the technique require great care and caution. DNA is essentially made up of amino acids and it’s matched with so called bases which provide the key to determining the genetic blueprint. Each and every cell in the human body has a sample of DNA. presently, there is no concrete law, specific law to govern the admissibility of forensic technique however the courts of law derives the validity of forensic technique from various provisions of CRPC and evidence Act. The paper will examine the role of DNA in criminal investigation, the paper will also analyses the increasing role of DNA identification in the Indian criminal justice system, a comparative analysis and the care and caution which a forensic scientist is supposed to take.

Key words. DNA, criminal justice system, forensic science

 

Introduction

DNA is the abbreviation of Deoxyribo Nucleic Acid. It’s a basic genetic material in all human body cells. It’s present in white corpuscles and not in red corpuscles. DNA structure determines human character, behaviour and body characteristics. The structure of DNA varies from personality to personality. Each indiual has a unique DNA. ALEC IFFREYS, pioneer of DNA profiling. DNA analysis, also called DNA typing or DNA profiling, examines DNA found in physical evidence such as blood, hair, and semen, and determines whether it can be matched to DNA taken from specific individuals. DNA analysis has become a common form of evidence in criminal trials. It is also used in civil litigation, particularly in cases involving the determination of Paternity of Identity.

Admissibility of DNA in Indian legal system

DNA test provides perfect identity and is admissible[1]  .The admissibility of the DNA evidence before the court always depends on its accurate and proper collection, preservation and documentation which can satisfy the court that the evidence which has been put in front it is reliable. There is no specific legislation which is present in India which can provide specific guidelines to the investigating agencies and the court, and the procedure to be adopted in the cases involving DNA as its evidence. Moreover, there is no specific provision under Indian Evidence Act, 1872 and Code of Criminal Procedure, 1973 to manage science, technology and forensic science issues. Due to lack of having any such provision, an investigating officer has to face much trouble in collecting evidences which involves modern mechanism to prove the accused person guilty. Section 53 of Code of Criminal Procedure1973 authorizes a police officer to get the assistance of a medical practitioner in good faith for the purpose of the investigation. But, it doesn‘t enable a complainant to collect blood, semen etc. for bringing the criminal charges against the accused. The amendment of Cr. P. C. by the Cr. P. C. (Amendment) Act, 2005 has brought two new sections which authorize the investigating officer to collect DNA sample from the body of the accused and the victim with the help of medical practitioner. These sections allow examination of person accused of rape by medical practitioner and the medical examination of the rape victim respectively. But the admissibility of these evidences has remained in a state of doubt as the opinion of the Supreme Court and various High Courts in various decisions remained conflicting. Judges do not deny the scientific accuracy and conclusiveness of DNA testing, but in some cases they do not admit these evidences on the ground of legal or constitutional prohibition and sometimes the public policy. There is an urgent need to re-examine these sections and laws as there is no rule present in the Indian Evidence Act, 1872 and Code of Criminal Procedure, 1973 to manage science and technology issues. Many developed countries have been forced to change their legislation after the introduction of the DNA testing in the legal system. There are certain provisions which are present in the Indian Evidence Act, 1872 such as Section 112 which determine child‘s parentage and states that a child born in a valid marriage between a mother and a man within 280 days of the dissolution of the marriage, and the mother remaining unmarried shows that the child belongs to the man, unless proved otherwise but again no specific provision which would cover modern scientific techniques. DNA analysis is of utmost importance in determining the paternity of a child in the cases of civil disputes. Need of this evidence is most significant in the criminal cases, civil cases, and in the maintenance proceeding in the criminal courts under Section 125 of the Cr. P. C.

The introduction of the DNA technology has posed serious challenge to some legal and fundamental rights of an individual such as “Right to privacy”, “Right against Self-incrimination”. And this is the most important reason why courts sometimes are reluctant in accepting the evidence based on DNA technology. Right to Privacy has been included under Right to Life and Personal liberty or Article 21 of the Indian Constitution, and Article 20(3) provides Right against Self- Incrimination which protects an accused person in criminal cases from providing evidences against himself or evidence which can make him guilty. But it has been held by the Supreme Court on several occasions that Right to Life and Personal Liberty is not an absolute Right. In Govind Singh v. State of Madhya Pradesh, Supreme Court held that a fundamental right must be subject to restriction on the basis of compelling public interest. It is clear from various decisions which have been delivered by the Supreme Court from time to time that the Right to Life and Personal Liberty which has been guaranteed under our Indian Constitutions not an absolute one and it can be subject to some restriction. And it is on this basis that the constitutionality of the laws affecting Right to Life and Personal Liberty are upheld by the Supreme Court which includes medical examination. And it is on the basis that various courts in the country have allowed DNA technology to be used in the investigation and in producing evidence. To make sure that modern technologies can be used effectively, there is an urgent need of a specific legislation which would provide the guidelines regulating DNA testing in India.

The  refusal of the Supreme Court to dismiss the Delhi High court‘s decision ordering veteran congress leader N.D. Tiwari to undergo the DNA test is very important from the viewpoint of the admissibility of such evidence. In this case, Rohit Shekhar has claimed to be the biological son of N.D. Tiwari, but N.D. Tiwari is reluctant to undergo such test stating that it would be the violation of his Right to privacy and would cause him public humiliation. But Supreme Court rejected this point stating when the result of the test would not be revealed to anyone and it would under a sealed envelope, there is no point of getting humiliated. Supreme Court further stated that we want young man to get justice; he should not left without any remedy. It would be very interesting to see that how courts in India would allow the admissibility of DNA technology in the future.[2]

 

DNA in Civil Cases

The call for DNA test on civil side is generally made to settle the paternity issue involved in cases of divorce, maintenance, inheritance and succession etc. It is noteworthy that Section 112 provides for the legitimacy of a child born during wedlock and the only ground to rebut this presumption is non access of the husband. Thus at one point of time it was an issue before the court dealing with paternity issues whether such test could be ordered.

This issue was discussed at length in Gautam Kundu vs. Bengal[3] where the division bench of apex court, inter alia, held as follows:- ―

 

(1) That courts in India cannot order blood test as matter of course

(2) There must be a strong prima facie case in that the husband must establish non -access in order to dispel the presumption arising under section 112 of the Evidence Act ….

(3) No one can be compelled to give sample of blood for analysis.

However subsequently a full bench of the Supreme Court in Sharda v Dharmpal[4] considered the power of a matrimonial court to order such test and clarified that Goutam Kundu (supra) is not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It, having regard to the future of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. The Court after hefty discussion summed up three significant conclusions,

  1. A matrimonial court has the power to order a person to undergo medical test.
  2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.
  3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.

In Bhabani Prasad Jena v.  Convener Secretary, Orissa State Commission for Women and Another,[5] the Supreme Court sketched the approach for courts while directing DNA test. The apex court observed, ―In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed. DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of ’eminent need’ whether it is not possible for the court to reach the truth without use of such test.

It would be worth to mention the judgment of the Delhi High Court in Shri Rohit Shekhar v. Shri Narayan Dutt Tiwari and Anr.[6] In which the court has gone a step further. In peculiar facts of this case, the petitioner, who was born during a subsisting marriage of her mother, asked for DNA test on the respondent, claiming the latter to be his biological father. The Court has ordered DNA test on the respondent a third party to marriage, primarily recognizing, from various international covenants, the right of a child to know of his biological antecedents. However the Court has been cautious to judgments of the Hon’ble Supreme Court in Sharda (supra) and Bhabani Prasad Jena and justified on reasons a prima facie case for ordering DNA test.

In the case of Anita M/O Eknath katkar vs. Add.commisioner kashik & ors[7] the Supreme Court in this case ordered the DNA and acted on the report and dismiss the petion. The child got relief and court held that the respondent is the mother of petioner.

Legal position of forensic techniques.

Legal position—-In India the legal position of forensic technique has to pass through a three-fold litmus test viz.

  1. What is the constitutional validity of such test?

The constitutional validity can be challenged on the basis of Article 20 (3) of the Indian Constitution which provides that ―No person accused of an offence shall be compelled to be a witness against oneself. The answer can be drawn from State of Bombay Vs Kathikalu[8] where it was held by the Hon‘ble Court that giving the specimen and information for forensic examination is just like providing relevant facts within the meaning of Sections 9 & 11 of Evidence Act and it does not fall under the parameter of evidence against one self.

  1. What is the evidential value of the forensic information obtained from the experts?

A general rule is that opinion of a person having special skill or knowledge in a particular field shall be admissible to the court of law (Article 45 Indian Evidence Act). Thus the expert assists and determines fact in issue and relevant fact to furnish information to judicial officers. Though it is not a conclusive proof but it can be used as corroborative evidence.

In Madan Gopal Kakkad vs. Naval Dubey and Another[9]  it was held that opinion of expert is admissible.

In Machindra vs. Sajjan Galpha Rankhamba,[10] has observed that an expert opinion should be demonstrative and supported by convensing reasons.

 

  1. In the absence of any concrete legislation what stand is taken by judiciary regarding admissibility of DNA forensics?

At present in India there is no concrete law to govern issues of admissibility of forensic technique. Some sections i.e. Sections 53, 54, 53(A), 164(A) of Code of Criminal procedure govern science and technology issue to certain extend.

Therefore it is completely left on judicial discretion either to permit DNA test or to deny any such request. Such a condition creates confusion and uncertainty over subordinate judiciary.

The researcher has made diligent attempt to cover entire legal, scientific, social impact in utilizing this novel forensic technique. Issues of concern and privacy of right is also dealt with.

In Asit Kapoor vs. Union of India[11] it was held that no party to a legal proceeding can be compelled for any scientific test against his/her will as it has effect of infringing upon his right to privacy. Some important guidelines are issued in Gautama Khandu vs. State of West Bengal & Anr[12] which is summed up as follows:

  • Matrimonial court has power to order a person to undergo some medical test.
  • Such order wouldn‘t be considered as violation of Right to personal liberty enshrined under Article 21 of Indian Constitution.
  • Such a power is exercise by court when there is strong prima facie case and sufficient material before the court. If the respondent refuses to medical examination despite of the order of the court, then court will be entitled to draw adverse inference against him.

Thus Indian judiciary had adopted forensic evidence but it is legislative machinery which is lagging behind in assimilating scientific development which plays important role not only to solve high profile cases but rape cases and post-conviction matter also

DNA and self-incrimination:

Before exploring the use of DNA tests in criminal cases it would be pertinent to see if it offends the fundamental right of person against self-incrimination. A Constitution Bench of the Hon’ble Supreme Court, in Selvi v. State of Karnataka,[13] while testing the validity of DNA tests on the anvil of Article 20(3) of the Constitution of India, made following observation, ―.

     The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts. It may also be recalled that as per the majority decision in Kathi Kalu Oghad (AIR 1961 SC 1808), the use of material samples such as fingerprints for the purpose of comparison and identification does not amount to a testimonial act for the purpose of Article 20(3). Hence, the taking and retention of DNA samples which are in the nature of physical evidence does not face constitutional hurdles in the Indian context.

The Constitution of India by Article 51A (h) and (j) commands that it shall be the fundamental duty of every citizen of India ―to develop the scientific temper, humanism and the spirit of enquiry and reform‖ and strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievements. Though there is no specific DNA legislation enacted in India, sections 53 and 54 of the Code of Criminal Procedure, 1973 (Cr PC) provide for DNA tests implied and they are extensively used in determining complex criminal cases. Section 53 deals with examination of the accused by medical practitioner at the request of police officer there are reasonable grounds to believe that an examination of his person will afford evidence as to the commission of the offence. Section 54 of Cr.P.C. further provides for the examination of the arrested person by the registered medical practitioner at the request of the arrested person. By the Amendment Act of 2005, the Cr.P.C. was amended inter alia to add new section 53-A which mandates the examination of a person accused of rape by a medical practitioner. By this amendment, new explanation includes within its ambit examination of blood, blood stains. Semen, sputum, swabs, sweat, hair samples and finger nails by the use of modern techniques in the case of sexual offences including DNA profiling and such other tests which is necessary in a particular case. Though section 53-A refers only to examination of the accused by medical practitioner at the request of the police officer, the court has wider power for the purpose of doing justice in criminal cases, by issuing direction to the police officer to collect blood samples from the accused and conduct DNA test for the purpose of further investigation under sections 173(8) and 293(4)(e) of the Cr PC. Apart from these provisions, section 45 of the Indian Evidence Act, 1872 is more important so far as the admissibility of DNA evidence is concerned. Section 45 deals with the opinion of the expert.

     Application in evidence: Coming to the application in criminal cases, DNA tests can be effectively used in criminal cases for the following purpose. First, it assists in positively identifying the perpetrators of crime, particularly in cases of sexual assault and homicide where identification is often a central issue. Second, to identify the remains of victims of violent crimes. The most suitable application of DNA tests for these purposes is evident in two  popular cases namely, Santosh Kumar Singh v. State[14] (establishing commission of rape by the appellant) and Surendra Koli v State of U.P[15] (to identify dead bodies of victims).

Statutory Recognition: It should be noted that the Explanation to Sections 53, 53A and 54 of the Code of Criminal Procedure, 1973 was amended in 2005 to clarify the scope of medical examination of the accused, especially with regard to the extraction of bodily substances, and in particular to use of DNA Profile technique.

In Krishna Kumar Malik v State of Haryana,[16] the Supreme Court in a rape case observed, ―Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Cr.P.C. prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the prosecutrix to make it a fool proof case.

SC DECISION IN THE NANDLAL WASUDEO BADWAIK, A CASE COMMENT.

The case, Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik & Anr [17]was a special leave petition directed against the order of High court for not allowing DNA test to prove the paternity of child. The appellant Nandlal Wasudeo Badwaik married a Latha on 30th June, 1990 at Chandrapur. According to him, both the husband and wife separated from 1991. They had no physical contact between them after 1991. An application for maintenance under Section 125 of the Code of Criminal Procedure filed by his wife, but the same was dismissed by the learned Magistrate by order dated 10th December, 1993. Thereafter, the wife resorted to a fresh proceeding under Section 125 of the Code of Criminal Procedure, 1973 claiming maintenance for herself and her daughter. She alleged that she started living with her husband from 20th of June, 1996 and stayed with him for about two years and during that period got pregnant. The appellant resisted the claim of his wife and stated that the assertion of his wife that she stayed with his husband since 20th June, 1996 is false. He denied the claim that he is the father of respondent No.2, the girl child. The claim of the wife accepted. The Magistrate granted maintenance to both the wife and daughter. The appellant preferred a revision petition before the High Court to order for DNA test to prove the paternity of child and claimed that no maintenance ought to have been awarded to the child. The High Court denied his claim and dismissed his revision petition. The appellant preferred a Special Leave Petition before the Supreme Court against the order of High Court. The Supreme Court dismissed the order of High court and favored the appellant to order for DNA test on a condition that the appellant petitioner to deposit all dues, both arrear and current, in respect of the maintenance awarded to the wife and child to enable us to consider the prayer for holding of such DNA test on 8th November 2010. The deposit was paid by the appellant on 3rd January, 2011. The Supreme Court allowed the petitioner‘s prayer for conducting DNA test for ascertaining the paternity of the child.

The Supreme Court has ordered the appellant and respondent to make a joint application to the Forensic Science Laboratory, Nagpur, for conducting DNA test. The appellant, the respondent No. 1 shall present themselves at the Laboratory with respondent No. 2. The laboratory is directed to send the result of such test to the Court within four weeks thereafter. The Forensic Science Laboratory has submitted the result of DNA testing and opined that appellant is excluded to be the biological father of respondent no. 2. By the said order, the respondent has not been satisfied so she requested for re-test. The Court directs that a further DNA test be conducted at the Central Forensic Laboratory, Hyderabad. The parties are directed to appear before the Laboratory. The Central Forensic Laboratory submitted its report and opined that the appellant can be excluded from being the biological father of respondent no.2. The respondents counsel submits that the appellant having failed to establish that he had no access to his wife at any time when she could have begotten respondent no. 2, the direction for DNA test ought not to have been given. In view of the aforesaid he submits that the result of such a test is fit to be ignored. To justify his claim the respondent‘s counsel relied on the judgment of Supreme Court in Goutham Kundu v. State of West Bengal, Banarsi dass v.Teeku Dutta, Bhabani Prasad Jena v. Orissa State Commission for Women. In all most all the cases the court ruled that blood test as well as DNA test cannot be ordered as a routine. The result of a genuine DNA test is said to be scientifically accurate. But, that is not enough to escape from the conclusiveness of Section 112 of the Evidence Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. The appellant‘s counsel raised the contention that the DNA test had already been ordered and the respondent had also not denied. It is only after the reports of the DNA test had been received, which was adverse to the respondents, that they are challenging it on the ground that such a test ought not to have been directed. We cannot go into the validity of the orders passed by a Court at this stage. It has attained finality. Before, the Supreme Court proceeds to consider the rival submissions analyzing the DNA test that we deem it necessary to understand what exactly DNA test is and ultimately its accuracy. All living beings are composed of cells which are the smallest and basic unit of life. An average human body has trillion of cells of different sizes.

DNA (Deoxyribonucleic Acid), which is found in the chromosomes of the cells of living beings, is the blueprint of an individual. Human cells contain 46 chromosomes and those 46 chromosomes contain a total of six billion base pair in 46 duplex threads of DNA. DNA consists of four nitrogenous bases – adenine, thymine, cytosine, guanine and phosphoric acid arranged in a regular structure. When two unrelated people possessing the same DNA pattern have been compared, the chances of complete similarity are 1 in 30 billion to 300 billion.

Given that the Earth‘s population is The Supreme Court ruled and evolved a beautiful concept that,“We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 rises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.”

“We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption. The husband‟s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice.”

In the above decision, the Supreme Court has changed the presumption under section 112 of the Indian Evidence Act, 1872 which has been followed still now from its enactment. Section 112 of the Indian Evidence Act, 1872 states that the husband has to prove that he has no access with his wife during the time when the child have been begotten. It can be proved either impotency or far away from his wife. The latter is very difficult because ―Access and non-access mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual cohabitation.‖ This above ruling helps the innocent husband to prove his non-access by way of DNA test. For the first time, the Court favors the innocent husband to prove his paternity claim. Here, the court gives priority to DNA test under Section 45 of the Indian Evidence Act, 1872 over the legitimate presumption under Section 112 of Indian Evidence Act, 1872. It is really a welcoming step and by that way our Supreme Court has enforced the fundamental duties enunciated under Article 51A (h) and (j) of Part IV A of the Indian Constitution.

 

 ADMISSIBILITY OF DNA EVIDENCE IN CRIMINAL CASES IN USA AND IN ENGLAND.

AMERICA

IN USA, all scientific evidence in criminal trials including evidence derived from DNA identification analysis, must satisfy the test of admissibility in effect in a particular jurisdiction. In general, courts use of two tests. The so-called Frye test, which was pronounced by the U.S. Circuit Court for the District of  Columbia in Frye v. United States,( 293 F. 1013, 1014 (D.C. Cir. 1923) or one of its variations, is used in a majority of jurisdictions. Under the Frye test, a novel scientific technique must have gained general acceptance the relevant scientific community before it is admitted by the court. The second rule follows the basic relevancy standard of the federal rule of evidence and is used in a majority of state jurisdictions. For admissibility under the federal rules, scientific evidence must have some relevance to the issues in the case, and its probative value must outweigh the potential for prejudice. In Daubert v. Merrell Dow Pharmaceuticals,[18] the U.S Supreme Court ruled that the federal rules of evidence have replaced the Frye test in federal court trials. Additionally, the court defined a new federal standard under the rules, the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. Determining reliability entails a preliminary assessment of ―whether the reasoning or methodology underlying the (expert) testimony is scientifically valid and whether the reasoning or methodology can be applied properly to the facts in issue.

The court provided a nonexclusive list of factors that may be used to determine scientific validity: (1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of errors in using a particular scientific technique and the existence and maintenance of standards controlling the technique operation; and (4) whether the theory or technique has been generally accepted in the particular scientific field. While the Daubert test applies to federal courts, most state courts continue to follow the Frye test.

In general, state and federal courts have increasingly accepted DNA evidence as admissible. In general, courts that have used the Daubert standard have been more likely to admit DNA evidence, although many jurisdictions that have relied on Frye have also permitted it. Nearly all cases, in which DNA evidence was ruled inadmissible, have been in jurisdictions that have used fyre. In People v. Castro the New York Supreme Court in a 12 week pretrial hearing exhaustively examined numerous issues relating to the admissibility of DNA evidence. Castro was accused of murdering his neighbour and her 2-year old daughter. A blood stain on Castro‗s watch was analysed for a match to the victim. The court held: DNA identification theory and practice are generally accepted among the scientific community. DNA forensic identification techniques are generally accepted by the scientific community. Pretrial hearings are required to determine whether the testing laboratory‗s methodology was substantially in accord with scientific standards and produced reliable results for jury consideration. The Castro ruling supports the proposition that DNA identification evidence of exclusion is more presumptively admissible than DNA identification evidence of inclusion. In Castro, the court ruled that DNA test could be used to show that blood on Castro‗s watch was not, but cou1d not be used to show that the blood was that of his victims.

 

ENGLAND

England is widely recognized as having the most effective and efficient approach to the use of DNA technology in the world. DNA technology and DNA data basing have been central to the process of criminal investigation since the establishment of the National DNA Database in 1995, England has become a world leader in discovering innovative ways to use DNA to identify suspects, protect the innocent to convict the guilty.

Suggestions by Malimath Committee:

  1. More well-equipped laboratories should be established to handle DNA samples and evidence.
  2. A specific law should be enacted giving guidelines to the police setting uniform standards for obtaining genetic information and creating adequate safeguards to prevent misuse of the same.
  3. A national DNA database should be created which will be immensely helpful in the fight against terrorism.

Sec. 313 of the CR.P.C must also be amended so as to draw adverse inference against the accused if he fails to answer any relevant material against him therefore, making it easy for the law enforcers to use DNA tests against him.

 

Conclusion

Thus DNA test as evidence of identity has come to be recognised in our judicial system.. James D Watson one of the discoverers of DNA who was awarded the 1962 Nobel Prize for medicine for the same, has made the following observations about handling of DNA evidence, Keeping track of molecular evidence, as opposed to knives and guns, can be an especially demanding chore; scrapings from a side walk may be visually indistinguishable from scrapings from a gatepost, and subsequently extracted DNA sample will doubtless look even more alike when placed in a small plastic test tubes.

Thus although DNA is an exact science its use in evidence has its concerns, which aggravate in Indian scenario where collection of evidence is shrouded with lack of promptness and conduct of medical test always remains under a question mark. The law, it is said, walks a respectable distance behind Science, but courts try to keep abreast. It is my submission that the court while taking help of such evidence need to be careful so that justice is secured to both the parties. The Supreme Court has come up with observations on the civil side directing courts to be extremely careful while ordering DNA test. However there is void of such guidelines or observation on the criminal side where the degree of guilt and punishment both is high and this is one area which requires our attention.

The researchers found some lacunae in conducting these test on accused. The author has opined that if our system over comes these drawback then this test can become good weapon in the arsenal of investigating agencies to bring justice be done. Some of the suggestions are follows:-

  • Legislators should take necessary step to legislate a uniform and national level law on conducting DNA tests and its admissibility in court rooms. Because in absence of statutory recognition a situation of confusion and uncertainty prevails over investigating agencies and subordinate judiciary.
  • To amend existing laws so as to incorporate provisions regarding permitting blood test for generating DNA profiling.
  • To regulate procedure in Forensic laboratories to increase reliability on its report. Labs should adhere to high quality standard; regularly participate in proficiency test, use of splitting method and uniform standard for DNA testing be adopted.
  • A national commission be created to regulate and monitor DNA profiling laboratories.Process and acceptability to post conviction DNA testing be incorporate in Indian laws. DNA samples should not be collected as a matter of routine and they should be recommended when information is relevant to a specific crime in question. DNA samples should be collected from suspect only after prior approval of a Judge/ Magistrate.
  • Proper training is provided to investigating agencies to overcome contamination issue. Proper chain of custody should be maintained. Proper training and sensitization of legal fraternity is required so as to overcome issues like prosecutor‘s fallacy.

 

[1] Pantangi Balarama Venkata Ganesh vs. state of Andhra Pradesh, 2003 crlj 4508(AP)

[2] International Journal of Humanities and Social Science Invention ISSN (Online): 2319 – 7722, ISSN (Print): 2319 – 7714 www.ijhssi.org Volume 2 Issue 7ǁ July 2013ǁ PP.15-21 www.ijhssi.org The Role of DNA in Criminal Investigation– Admissibility in Indian Legal System and Future Perspectives”

[3] (1993) 3 SCC 418

[4] (2003) 4 SCC 493

[5] (2010) 8 SCC 633

[6] MANU/DE/3701/2010: 2011(121) DRJ 563

[7] Civil Appeal number;- 5588 of 2017, DOJ 25 April 2017.

[8] AIR 1961 SC 1808

[9] 1992 AIR SCW 1480

[10] Criminal appeal number 1794 of 2013,D.O.J April 19,2017.J P.C Ghose and R.F.Nariman

[11] AIR 2004 Del 2003

[12] AIR 1993 SC 2295

[13] (2010) 7 SCC 263

[14] (2010) 7 SCC 263

[15] (2011) 4 SCC 80

[16] (2011) 7 SCC 130

[17] (2014) 2 SCC 576

[18] 509 US 579, 113 S.C. 2786 (1993)

Case Analysis: F. Hoffmann-La Roche Ltd. & Anr. v Cipla Ltd.

OVERVIEW OF THE CASE

Roche, along with Pfizer as  joint applicants, claimed that it had been granted a patent in February 2007 for, the molecule medically termed as a “Human Epidermal Growth Factor Type- 1/Epidermal Growth Factor Receptor” (HER/EGFR) inhibitor, popularly known as Erlotinib. The said drug was a major breakthrough for the treatment of cancer. The drug was in the tablet form and was sold under the trademark name ‘Tarceva’. The said drug was approved by the U.S Food & Drug Administration and thereafter by the European Union. The Controller General of Patents, New Delhi had also granted patent in respect of Erlotinib with a certificated dated 23rd February, 2007. On the record as per the amendments of 2005 in the patents act Erlotinib stood patented.  The patented product, which Roche introduced onto the Indian market in 2006, was marketed under the brand name TARCEVA.

Meanwhile Cipla Limited (`Cipla), a company incorporated under the Companies Act 1956

And having its registered office at Mumbai announced to launch a generic version of Tarceva(Erlotinib). The news regarding this appeared in an English Daily Mint.

The plaintiff alleged that the drug Erlotinib had been developed after long years of research and enormous expenditure had been incurred and moreover the innovation was protected by law. Henceforth the defendant company had no right to opt to manufacture, sell or offer to sell any version of the drug Tarceva (Erlotinib) and that such action of the defendant, as announced by it, would be in blatant violation of the legal rights of the plaintiffs.

The plaintiff had filed a suit for infringement of right on the 15th January 2008, along with it an application seeking ad-interim injunction was also filed. Two major points to be noted at this very stage was that :

  • It was stated that the certificate bearing patent No. 196774 dated 23rd February, 2007 recorded in the Register of Patents on 6th July, 2007 pertained to Erlotinib Hydrochloride which was marketed as Tarceva
  • In the plaint no details of the specification of the aforementioned patent or the x-ray diffraction of the product (tablet) Tarceva or the defendants Erlocip was indicated

 

RESPONSE OF CIPLA TO ROCHE

In response of the claims made by Roche Cipla replied that

  • The generic version of Erlotinib was sold by Cipla under the name Erlocip from October 2007. Also according to the Patents Act, Section 5(2) the right of the patentee accrues only from the date of grant of the patent. Though the certificated gained by Roche Limited was dated February 2007, but the pre grand opposition was disposed off in July 2007 and hence the certificate granted was incorrect.
  • Secondly Cipla said that patent granted to Erlotinib was invalid as Erlotinib was a derivative of a known patent ‘Quinazoline’. Also that the composition of Erlotinib was same as that of Quinazoline except for one substitution which was “obvious to any skilled person”. Under Section 2(1)(ta) of the Patents Act 1970 pharmaceutical meant invloving one or more inventive steps and something which had not been anticipated by any document or publication in any country . Meaning thereby that  Roche’s invention, as disclosed in the complete specification and claims was obvious or did not involve any inventive step, having regard to what was publicly known or publicly used in India, or what had been published in India or elsewhere before the priority date
  • Thirdly they pointed out that for any drug to be qualified as patentable under Section 3(d) it is essential that one shows that there is “any improved efficacy of the said drug.
  • Fourthly, it was specifically averred that “the alleged patented product is nothing but a derivative from Gefitinib of Astrazeneca for which a patent was refused in India” by a decision dated 30th August 2007 of an application of Astrazeneca.
  • Fifthly, what Cipla pleaded was public interest. It pointed out that the huge difference in price between Roche’s drug (Rs.4,800 tablet (approx. US$ 100) and Cipla’s drug (Rs.1,600 (approx US$ 33) should be taken into account when deciding whether or not to grant an interim injunction. Cipla strongly argued that because the drug in question was a life saving drug, the public interest issue was an important factor to be taken into account.
  • Lastly Cipla contended that that the plaintiff has intently withheld important information regarding the drug and that it is actually a mixture of polymorphs and which is useless for pharmaceuticals.

 

SINGLE JUDGE JUDGEMENT

The single judge in the judgement dated 19th March, 2008 mainly pointed out two important issues with the patent to Roche

  1. The claim by Cipla to hold the patent invalid on the ground of obviousness as ‘ Erlotinib’ was a derivative of a know compound and hence the requirement under section 3(d) of the Patents Act was unfulfilled as the ‘increased efficiency’ criteria was also not met forth was out rightly denied by the single judge bench and they held that the plaintiffs contention that is was not obvious for a person skilled in the same art to have replace methyl for ethynyl.
  2. The second claim that was made by Cipla which was in public interest and which was accepted by the single judge bench was that the generic version of Erlotinib which was marketed and manufactured by Cipla was actually available for one their price. Moreover this was a life saving drug and the drugs by Cipla was manufactured in India and not imported from elsewhere. The court had to choose between ensuring life saving drugs at a cheap prise and injunction order during the pendency of the trial. The single judge bench very rightly choose the first over the second and rejected the plea of injunction on Cipla as many innocent person who are not even parties to the suit would be unnecessarily affected.

 

FINAL JUDGEMENT

The division bench finally stated that there was no infringement as the patent which was in question was a mixture of  Polymorphs A and B, whereas the drug Tarceva drug consisted of only Polymorph B. The point here to be noted was that Roche had applied for patent of Polymorph B but was denied by the Indian Patent office as it did not satisfy the criteria of Section 3(d) and the test of patentability was not satisfied. Moreover, the court considered the intent of the legislature in enacting Section 3(d) and anti ever greening laws and held public interest above everything. The court realised that in here a life saving drug was in question, and hence the drug which was made available by Cipla was three times less priced than the drug which was manufactured by Roche.

 

CRITICAL ANALYSIS

The main question was whether denying infringement to the drug of Roche was correct or not, as it highlighted ever greening of patent which has been expressly denied under the section 3(d) of the Indian Patent Act.

Section 3(d) “What are not inventionsThe mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.[1]

If we carefully analyse section 3(d) of the Indian Patent Act we can see that it clearly lays down denial of patent in three circumstances

  • Mere discovery: Mere discovery According to the Webster’s Third International Dictionary of the English Language, the expression “discovery” refers to “the act, process or an instance of gaining knowledge of or ascertaining the existence of something previously unknown or unrecognised.” Therefore discovery would mean simply finding out something which is know in the world whereas innovation involves an inventive step.
  • New form of a known substance: This would mean that the existence substance is being presented in a different manner or in other words other derivatives of a known substance. This would not be patentable unless it is proved that they differ significantly in reference to efficacy.
  • Does not increase efficiency: Meaning thereby that a new form of a know substance will be allowable only when it is shown that they differ in properties and that this difference has led to enhanced efficacy. The efficacy can be in the form of enhanced stability or freedom from specific disadvantages or even perhaps increase in bioavailability but it should not be an eye-wash increment in efficacy but a significant increment[2]

The intent of the legislature behind such a Section was clearly to make Anti- Evergreening laws by restricting obvious forms and substances.

Patent is basically a monopoly right which is given to the inventor as a reward for his hard work and years of research. It is given only when there is an inventor who has invented something useful and non obvious. Patent in India is allotted for a time spam of 20 years after which it is in the public domain to be used. The concept of non obviousness basically men that it should not seem obvious to a person who is an expert in that field.

In the case of Dhanpath Seth& Others v. Nil Kumal Plastic Crates Ltd[3]. where a patent was claimed on the mere fact that the device was made of polymeric material instated of the traditional bamboo material. The court held that there was nothing new in manufacturing a traditional Kilta made of natural material from synthetic material. Similarly in the present case the fact that Roche had derived Polymorph B out of the combination of Polymorph A and B was not an inventive step as the fact that Polymorph B was a more stable form of Erlotinib Hydrochloride was a well know fact to anyone in the same field.

In the present case the application to the Controller for patent on Polymorph B was rejected on the grounds that it did not show enhanced therapeutic efficacy over the closest prior art. Prior art would mean the knowledge existing in the public domain. The existing technologies can be understood to mean prior art. In the case of Garham v. John Deere Co[4]. the U.S Supreme Court had laid down few steps to check whether the patent involves an inventive step or not.

  • the scope and content of prior art
  • whether there is a difference between prior art and the claim which has been made.
  • the level or ordinary skills which is involved in the pertinent art.

The term has no where been defined in the patent act, but the fact that it was common for a person who is an expert in the field would be sufficient to make the claim fall under the connotation of prior art.

The intent of the legislature behind inserting an anti- Evergreening section in the Patents law was to do away with the practice in the medical field where the pharmaceutical companies had a habit to change a small component and gain the patent again, after the expiry of 20 years of the patent term. Patent law provides monopoly to the inventor but it’s not that it gives one a complete monopoly rather it is a restrictive monopoly. Evergreening methods which are used by the industries involve:

  • Meaningless creation next generation Drugs and then patenting it as a new application.

The pharmacy companies have tendency of making inconsequential changes to the existing drug and then basically creating an Evergreening of patent on that drug. In the present case also the fact the application for patenting Polymorph was rejected by the Controller Authority was because of the reason that it was subsumed in the patent of Polymorph A and B that Polymorph B was also included a separate application for the same was not needed as it would then amount to Evergreening of an already existing prior art.

The Controller of Patent had rejected the patent application dated 2008 as the applicant had failed to provide comparative data compared to prior art U.S.498 to show any enhancement in the therapeutic efficacy of the polymorph B. Even for the stability and bioavailability they claimed, no data was provided vis-à-vis the prior art U.S.498 compound. This was also seen in the case of Asian Electronics Ltd. v. Havel’s India Ltd.[5] where the patent  could not be sustained as being an obvious one and that it did not show any difference in the efficacy hence being hit by the exception under Section 3(d)

In the present case the court quoted that “A mere difference in physical property is a well known conventional variation of the same pure substance not showing unobvious properties. Therefore, the changes alleged by the applicant are in the physical properties and not in the therapeutic efficacy. This clearly amounts to Evergreening tendency which has been denied by Section 3(d).

Section 3(d) basically keeps a check on the over ever-greening as it in turn affects the public health of a country, as the manufactures may charge heavy prices which are not affordable by the public at large and still continue to enjoy their monopoly and this is completely against the concept of patents. In the present case also it is quite evident that the drug which was being made available by Roche was three times more expensive than the drug which was available by Cipla. While granting patent and passing injunction orders what is more important to see the public benefit at large. In the present case the drug was a life saving drug which was being manufactured in India and at a comparatively lower price and hence the claim of infringement was rejected.

It is not that a newer version of an already patented drug is not patentable in India it’s just the fact that if the newly developed drug gives better performance to the existing one then it is patentable. But this enhanced efficacy has to be proved experimentally only then will the patent application be eligible for its acceptance. Section 3 (d) promotes subsequent expansion of existing chemical substances, compounds, technologies which are helpful in fulfilling the health requirement of the public and balance public goods.[6]

In the case of Novartis Ag v. Union Of India & Or[7]s it was seen that Section 3(d) was interpreted as to the therapeutic efficacy of the drug and not just the improvements in the physical characteristics or stability of the product. Similarly in the present case also there were signs of only improvement in stability and the physical composition of the drug however there were no statistics which were presented before the court which showed that there is any improvement in efficacy in the drug usage.

The main contention which was raised in the case of Novartis Ag v. Union Of India & Ors [8]was that Section 3(d) ought to be removed as it was against the TRIPs agreement. But what the court instead said was that the main aim of the patent system is to provide benefit to the inventor for a period of 20 years but restrict the expansions of such term once the term has expired. The Court said that the Amendment was intended to:

  • Preventing ever-greening;
  • To provide easy access to the denizens of this country for life saving drugs; and
  • To discharge their constitutional obligation of providing health care to its citizens.[9]

What is to be noted in the present case and in cases which involve the drug is that Right to health is a cause of concern in major parts of the world specially Africa and Asia and in such situations price plays a major role. If the price of these life saving drugs are allowed to be fixed at a higher rate by allowing monopoly and not restricting Evergreening then companies like Roche will keep on creating drugs which are thrice as expensive as that which was created by Cipla. In such cases what is of most important is public concerns which are to be given a upper hand.

 

CONCLUSION

The amendment of 2005 showed that India has adopted an IP regime that showcased the spirit of WTO, but at the same time keeps a provision for prohibiting ‘Evergreening’ by making available expensive medicines available at nominal rates by encouraging market competition. What has been showed by the Indian judiciary through cases like Novartis and Cipla is that Section 3(d) is acting as a guard against Evergreening of patens as the pharmacy companies have a habit of simply changing just one component which does not in any manner change the efficacy of the product and re apply for product, this basically restricts the research and development pace and leads to the downfall of the country. Secondly what has been made clear through these cases is that while granting and considering patents applications what will be of at most importance is the Public benefit at large. Had the patent been granted to Roche by the Controller of Patent in New Delhi then the medicine for treating Cancer would have been out of reach for numerous patents because of the cost of the medicines.

Patent laws in India encourage inventions but are against providing absolute rights, they provide a restrictive right whereby encouraging more research and development and development of better medicine in the market.

[1] India Patents Act, 1970

[2] http://www.ip-watch.org/2007/06/01/scope-implications-of-section-3d-of-the-indian-patents-act-1970-as-amended/

[3] AIR 2008 HP 23, MIPR 2008 (2) 370, 2008 (36) PTC 938 NULL

[4] 383 U.S 1(1966)

[5] 2010 (44) PTC 66(Del.)

[6] Kant A, Section 3(d): ‘New’ Indian Perspective, Journal of Intellectual Property Rights, 14 (9) (2009) 385-396

[7] Civil Appeal No. 2728 Of 2013

[8] Civil Appeal No. 2728 Of 2013

[9] Novartis Ag V. Union Of India & Ors

IS IT LEGAL TO LEVY TAX ON THE PROCEEDS OF ILLEGAL ACTIVITIES IN KENYA?

 

1.0 INTRODUCTION

Section 3 of the Income Tax, Cap 470 of the laws of Kenya (the Act), states that a tax known as income tax shall be charged for each year of income upon all income of a person whether resident or non-resident, which accrued in or was derived from Kenya. The Act provides for the charging of tax on specific types of income which include the following:[1] gains and profits from business and employment; service rendered; rent; dividend; interests; pension charge or annuity and capital gains.

 

The Act has, however, has not come out clearly and explicitly to state that any income earned from unlawful activities can be taxed. The inability of Kenya Revenue Authorities (KRA) to tax income form illegal activities in Kenya is therefore attributable to the partial legal gaps in the Act. This gap is described as partial because section 3(2) of the Act has included gains or income from a business or services rendered as taxable. This could allow income form businesses like drug trafficking, child trafficking or prostitution to fall within taxable incomes under section 3(2) of the Act. The fact that the Act has not differentiated between income from lawful and unlawful businesses opens the doors for possible taxation of income form such unlawful activities. In any event the purpose of both lawful and unlawful business is that they are commercial ventures which are incorporated   to make profits.

 

The big question is whether this was the intention of the legislature when they enacted the Act.  Did parliament intend that income from illegal activities could be taxed under section 3(12) of the Act as read with 3(1) of the Act? The High Court Kenya in Nairobi attempted to answer this questions the case of Republic versus Kenya Revenue Authority (KRA) ex-parte Yaya Towers Limited.[2] This paper shall use the decision of the court in this matter as a springboard to explore whether the Kenya Revenue Authority (KRA) has the legal right to levy tax on income earned from illegal activities

 

3.0       OVERVIEW OF THE DECISION IN REPUBLIC –VS- KENYA REVENUE AUTHORITIES EX-PARTE YAYA TOWERS LIMITED[3] (YAYA CASE)

 

In this case, Yaya towers Limited (Yaya) entered into a consultancy contract with a firm known as Modave Technologies to offer Yaya the services of one David Saunders, who was a partner in the firm. The consultancy fees for Mr Modave was to be paid to the firm. Upon receipt of this consultancy fees from the firm paid income tax that was due therefrom. On is part KRA argued that in addition to the income tax already paid, Yaya was under an obligation to deduct and remit the Pay As You Earn (PAYE) tax from the salary of Mr. Saunders before remitting the balance thereof to Modave Technologies. Considering that this was not done KRA proceeded to assess and demand a PAYE deductions and penalties at Kshs 17,775,190.10. Yaya filed a judicial review application to challenge this administrative decision. The sub strum of its case was that the said Mr. Saunders was an immigrant who could not engage in employment with YAYA without a valid entry permit. And that considering that Mr Saunders did not have a valid entry permit, he could not have been an employee of Yaya. Yaya further submitted that it is criminal for a third party to employ an immigrant unless he has a valid entry permit that allows him to be employed.  In the present case, Mr Saunders lacked a valid entry permit and therefore any purported employment with YAYA (which is denied) is based on an illegality. And that courts should never lend its hands to KRA whose cause of action is premised upon an illegal act.

 

Justice Nyamu held that Mr. David Saunders was indeed an employee of Yaya and the company was therefore obliged to remit PAYE deductions to the taxman. However,   considering the fact that David was employed when he did not have a permit allowing him to engage in employment in Kenya contrary to the Kenyan law,[4] the said employment was illegal and a criminal offence.[5]  The judge concluded by stating as follows:

 

In the view of the court, the Respondent apparently has not acted outside its jurisdiction. However, as I have earlier stated, an illegal contract cannot form any basis for assessment of income tax as that would be against public policy. Collection of taxes arising from unlawful transactions should be discouraged particularly by the courts by refusing to aid any party regardless of any apparent bona fides. In reality, the Respondent has no jurisdiction to assess and levy tax from transactions which have been done in breach of any written law or in furtherance of an illegality under common law.

 

By a stroke of the pen, Justice Nyamu declared and affirmed that the government can’t levy tax on illegal activities as this would be against public policy. In affirming the position of Yaya towers not to deduct PAYE tax from the salary that was paid to him by Yaya, the judge seemed to have been persuaded by the previous case of Omega Enterprises (K) Ltd. v KTDC & Others[6] where the court had held that:

           

            If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.

 

The KRA appealed this judgment and decree to the Court of Appeal, the main ground of its appeal was that any income obtained from unlawful activity or business enterprise should not be taxed under the Act.[7]

 

In its judgment the court of appeal set aside the High court judgment and all consequential orders of Justice Nyamu by stating as follows:

 

In contending that such an illegal business is not subject to taxation, Mr. Oyatsi for the respondent urged us to find that the remedy lies in        prosecution for an offence under Section 109 (1) (f) of the Income Tax Act. Whereas, the Income Tax provides for that alternative remedy, we think the crux of the matter in this appeal is the determination of whether an illegal trade is subject to taxation. Having come to the conclusion,        like we have done that it is indeed taxable, then the issue of alternative remedy may not be called into play, as this remedy would apply to non-compliance of payment of tax, whether from an illegal or honest trade.

 

The following questions emerge from this decision:

  1. a) Is the decision of the court in tandem with literal interpretation of section 3 of the Act?
  2. b) How does one deduct expenditures related to illegal activities?
  3. c) Is the taxation of illegal income in tandem with the country’s constitutional dispensation?
  4. e) Is the Act of levying tax on income earned from unlawful activities in tandem with taxation principles of fairness and equity?
  5. f) What is the international perspective on taxability of illegal activities?

 

  • Interpreting Section 3 of the Act.

The decision on whether to levy tax on all forms of illegal activities or not has been with us for a very long time. In fact as early as 1931, Al Capone, the most publicized fraudster of the 1920s was prosecuted, convicted and sentenced to 11 years for federal income tax evasion in the United States of America (USA).[8] This conviction, became a subject of intense debate in the Congress. The congress was of the view that convicting Al Capone to criminal of a criminal offence while allowing him to keep the proceeds earned from his unlawful activities was wrong and immoral. Consequently, in 1916 Congress passed the Revenue Act which imposed tax on the entire net income from a variety of sources including any business carried on for gain or profit.[9] For avoidance of doubt, the Supreme Court proceeded to interpret and settle meaning of the words contained in section II of the said Revenue Act in United States v Sullivan [10] when it stated that income from unlawful activities is taxable. The court, however failed to clarify whether a taxpayer can be taxed on unlawful income if he returns or is compelled to pay back the stolen asset or income. This position was nevertheless later clarified in Rutkin v United States[11] as follows:

           

            An unlawful gain, as well as a lawful one, constitutes taxable income when its recipient has such control over it that, as a practical matter, he derives readily realizable economic value form it.  

 

The judges in the English case of Mann v Nash,[12] had similar view to their American colleagues Rutkin case when they affirmed that government which levy tax on unlawful income are not condoning crime, instead they are merely recognizing income from what appears to be trade, and that revenue laws provide that such income ought to be taxed.

 

Section 3 of the Act is similar to the provisions of the American Revenue Act which did not specifically state that unlawful activities are taxable. The Act provides that income tax shall be charged upon all income of a person, whether resident or non-resident, which accrued in or was derived from Kenya. The Act has not qualified the type of income which would be taxable. It, therefore, behooves on the Kenyan courts to also give an interpretation on whether income earned from unlawful activities are taxable in Kenya. My view is that interpretation of the Act as explained in the  should not be any different from the views expressed by the American and English cases supreme court  as indicated by the judges of appeal in the Yaya case.

 

Furthermore, the Black Laws dictionary defines an income as the return in money from one’s labour, or capital invested; gains, profits, or private revenue. The Oxford advance Learners Dictionary define it as the money that a person, a region, a country, etc. earns from work, from investing money from businesses, etc. These two definitions are largely consistent with what constitutes an income under section 3 of the Act and the Rutkins case. On the face of it, it seem that the court of appeal was right in its interpretation of section 3 of the Act.

 

The only caution is that such taxation could only take place if said income was accrued or derived in Kenya. If the income is accrued outside the country then the same would not be taxable irrespective of its legality. Ordinarily an income would be deemed to have accrued or derived in Kenya if the payment from that business transaction is made by a Kenyan resident or a person having a permanent establishment in the country. This view was affirmed by the courts in the case of  Motaku shipping Agencies Limited Vs Commissioner for Income Tax[13] where it was elucidated that for an income to be deemed to have accrued or been derived in Kenya, that payment must be made by a resident person or a person having a permanent establishment in the country. And that the payment must be incurred in the production of income accrued in or derived from Kenya, or in connection with a business carried on or to be carried on, in whole or in part, in Kenya.

 

This qualification of accrual or derivation in Kenya can easily be met by several enterprises that could be carrying out illegal activities in the country. The question that remains is whether this was the intention of the legislature in enacting the Act. And if the response is in the affirmative, then, did they provide sufficient safeguards to protect the tax system from the possible pitfalls of taxing illegal activities. For example would KRA allow a taxpayer to deduct the expenditure incurred in obtaining the unlawful income for purposes of ascertaining the total taxable income of a thief, a fraudster or a corrupt civil servant?

 

In conclusion, the world has today moved away from this traditional mode of interpreting statutes which favoured literal interpretation of the laws as was captured by Lord Cairns in Partington v. Attorney-General in 1869:[14]

 

As I understand the principle of all fiscal legislation, it is this: if the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be. In other words, if there be admissible, in any statute, what is called an equitable construction, certainly such a construction is not admissible in a taxing statute, where you can simply adhere to the words of the statute for a very long time the courts have relied on this literalist approach in interpreting tax laws.

 

The world has instead embraced anew and purposive way of interpreting a tax statutes in a manner that gives effect to the intention of parliament. This is intended to insulate the courts from reading absurd judgments which are likely to reduce courts of law into a laughing stock.  It encourages the interpretation of the laws by discerning the intention of the legislature and remedying the mischief that parliament intended to cure.[15] This current method of interpreting tax statutes was discussed by the courts in in Austin v The Commonwealth[16]. Where it was stated as follows:

 

In earlier times it used to be said that legislation imposing taxation was subject to a strict construction, in favour of the taxpayer. However, in more recent times, this Court has departed from the narrow and literal interpretation of words appearing in legislation including that imposing         taxation in favour of an Interpretation that seeks to achieve the apparent purposes or objects of the enactments as expressed in the enactment as expressed in its terms.

 

Greenberg confirms that the English courts have today adopted this method of interpreting tax statutes where the court is expected to find out the intention of the taxpayer and not the narrow literal meaning in the Act.[17] Steven,[18] welcomed the new approach adopted by the courts by stating as follows:

 

In many ways the most dramatic change of direction during the period was    in tax law….A third of the Houses’ work was in tax law…… Yet a dramatic     change had     taken place. In the mid-fifties the accepted approach to tax            legislation was that, being in the penal nature the legislation had to be read            narrowly and unless the       actual transaction or income was ‘charged’, i.e.,             covered by the exact words of this section, taxation was not payable. By mid-  nineteen sixties the situation had changed noticeably.  ….The House had      come to read tax legislations like other legislations and while still charry of           taxing by analogy, the law Lords sought the meaning of tax provisions by looking to the whole purpose of the section or the Act, rather than at the         actual words used. 

 

The foregoing shows that there has been a definite transition towards the adoption of the purposive approach in interpreting fiscal legislations. This does not mean that that literal interpretation of fiscal statutes should be ignored, it is only that they ought to be negated in only in cases where literal interpretation does not bring out the true intentions of the legislature in a tax statute.

 

It is clear that in the Yaya case, the court opted to interpret section 3 of the Act purposively by stating that income in the present context under the Act included income realised from unlawful activities. Could this mean that the Kenyan judiciary has abandoned the old system of literal interpretation of tax statutes in favour of current best practice? The available evidence on his matter shows that courts still insist on interpreting tax statutes literally as was shown in the cases of Republic v KRA Ex-parte Bata shoes Company (Kenya ) Limited[19]and Republic v Commissioner of Domestic Taxes Large Taxpayers Office Ex-parte Barclays Bank of Kenya Ltd[20] and Republic v KRA Ex-parte Fontana Ltd .[21] in all these cases the court relied on literal interpretation of a fiscal statue as a matter of course  and without giving a reason why they opted to rely on this mode of interpretation. Perhaps this is a typical case of the judiciary making one step forward and two steps backwards in embracing the world best practice in interpretation of tax statutes. What is even more worrying is the fact that the world has changed and adopted this purposive method of interpreting tax statues for the last thirty years and yet our judiciary is still partially stuck in the wheels of cold justice which was served in the previous century.

 

  • Deduction of Expenses

It is a settled principle of taxation that tax can only be levied on the net income of a taxpayer. The net income can only be realised after deducting all the allowable expenses from the gross income of a taxpayer. Section 15 of the Act has outlined the amounts that can be deducted from the gross income of a person for purposes of ascertaining his taxable income. These allowable deductions are not specific on whether the gross income that may have been raised thereof emanated from lawful or unlawful activities. Furthermore, section 16 of the Act has outlined the deductions that shall not be allowed in determining a person’s taxable income. Expenses incurred in carrying out or facilitating an illegal activity have not been specifically excluded therein. This could, therefore, mean that the expenses specifically incurred in carrying out a legal or illegal activities are wholly and exclusively allowed as deductions in ascertaining the total net income of a person for tax purposes. The big question is whether, for example, it was the intention of the taxpayer that a thief who bribed a bank manager to access the codes to bank safe could be allowed to deduct this expense from his stolen bank heist in the event that the taxman demands that he must pay tax on this stolen money. Even more poignantly, can a convicted fraudster or robber be allowed to deduct the fines and penalties imposed on him by the courts from the value of his stolen money which may have been taxed by the KRA?

 

In my view, the issuance of blank cheque for deduction of all expenditures that are incurred in the course of carrying out an illegal trade may lead to great embarrassment to the government because the public may form the view that the state is giving a thumb of approval to criminal activities. There are, however, no cases on which the Kenyan courts have interpreted whether all expenses incurred in obtaining an unlawful income form a business enterprise can deduct the expenses incurred thereon. South Africa has a few cases dealing with the deduction of expenditure relating to illegal receipts. Kenya could use the principles laid in this cases as a springboard to determine the limit to which deductions from illegal activities can be allowed.

 

In COT v Rendle,[22] the Commissioner allowed the deduction of costs and legal fees incurred when an embezzler. This was allowed as the expense was seen as closely related to the business operations of the taxpayer. In ITC 952 a partner in a partnership stole  funds from the partnership and the partners attempted to deduct the stolen funds for tax purposes the court ruled out the deductions because it was not an inherent risk of the business. In ITC 1383, the taxpayer, a commercial bank, attempted to deduct an amount that was stolen by one of its senior employees. In this case the court allowed the deduction because there was a close link between the theft and the normal business activities of the company.

 

The Australian position is a bit different from the South African position. The Australians are of the view that deductibility of career criminal expenses should never be allowed.[23] The basis upon which this is premised is that:  the illegality severs the conduct from the business; there are public policy reasons to prevent deductibility because illegal business expense like fines are meant to punish illegal behaviour and not limit exposure to tax; and that those costs or expenses are private in nature and were not intended to be deductible from the moment when the illegal businesses were commenced.

 

Furthermore, a person engaged in illegal trade would face the following challenges which would impede his ability to claim for deductible expenses from his income.

 

  1. The fear of exposing his partners who helped him facilitate or carry out the illegal activity.
  2. The difficulty of obtaining accepted proof of expenditure like an invoice or receipt to confirm that the expenses claimed were actually incurred.
  3. The difficulty in proofing that all the expenses incurred prior to the commission of the illegal activity was an expenses exclusively intended to facilitate the successful commission of an illegal activity.
  4. The fact that most people involved in illegal trade value secrecy and they therefore don’t keep proper and ascertainable records of their expenses and even income..

 

Which way should Kenya go, should it adopt the liberal position DOPTED BY South Africa, or the conservative position adopted by Australia. It is hoped that the Legislature, treasury or the courts will have the chance to give the country a guidance on this matter in the not too distant future.

 

  • Constitutionality of Taxing Illegal Income

Kenya is a constitutional democracy. This means that the constitution of the country is the supreme law, and that any law or regulation which contradicts it is null and void to the extent of its inconsistency.[24] There seems to be a general consensus that all the proceeds of crime should be subject to taxation.[25] If this was not done, then, tax experts would immediately opine that the Act is discriminative and unfair on the hard working Kenyans who are taxed on all their income earned, while the people who commit unlawful activities are allowed to retain their entire gross income untaxed. Besides, taxing all person on all their income would be an opportunistic way that could be used by the State to fill its coffers with the much needed revenue. Some scholars have even suggested that those involved in illegal activities should be allowed to continue with their activities provided that they pay their fair share of tax.[26]

 

The Latin maxim ‘nemo tenetur seipsum accusare,’ which means ‘no one is bound to accuse himself’ is the source of today’s right against self-incrimination. This right is premised on the belief that if someone is to be accused of some wrongdoing, then he should not be forced or induced to provide the evidence that is required to convict him of that wrong doing.[27] This Latin maxim is intended to protect taxpayers constitution al right to a fair trial[28] and preservation of privacy from unwarranted government snooping.[29]

 

Section 3 of the Act should therefore be interpreted in a manner that is consistent with the constitution and also respects the taxpayer’s right not to incriminate himself or gave his right to privacy violated. It is, therefore, unconstitutional for any tax authority to rely on the self-assessment income declaration form or return of any taxpayer in prosecuting him against any crime as this would amount to self-incrimination if the government that privileged information to criminally prosecute him for commission of an illegal activity.  The KRA is hence behooved to ensure that it strikes a balance between its right to collect tax and the rights that all taxpayers have not having an tax information filed with the KRA being used against them at criminal trial for alleged self-confessed crimes like theft, robbery, frau or racketeering

 

The courts have affirmed that the right to privacy can only be taken away from a taxpayer for very good reasons. Indeed in Keroche Industries Limited vs Kenya Revenue Authority and 5 others[30]  the court stressed that the right to privacy is an important pillar in Kenyan’s constitutional dispensation. And that any deprivation of this fundamental right in the constitution must accompanied by sufficient procedural safeguards that ensure certainty and regularity of law. It is clear that the Act and the Treasury or the KRA have not provided any regulations attendant to the Act or the Tax Procedures Act No 29 of 2015 on how to limit this fundamental right to help KRA realise the country’s taxation goals. In fact, contrary to this constitutional right, section 58 of the Tax Procedures Act No. 29 0f 2015 provides that an authorized officer of the KRA may inquire into the affairs of a person and in the process he shall have the unbridled right and access to all lands, buildings, equipment, devices and records of such a taxpayer from whichever place. In addition, such an officer can also extract and keep such records. This means that a revenue officer while in the course of his duty can access any person’s bank account, property records at the land registry, shares held in any company, employment records and whatever information that it may require from whatever source without any reference to the affected taxpayer. The retrogressive nature and invalidity of this provision in the Act which limits the constitutional right of privacy is apparent from the followings facts:

 

  1. The officer is not limited in what he can do with this information by the Act.
  2. The KRA does not have to notify the taxpayer of their actions.
  3. There is no laid down procedure or guidelines that such an officer is supposed to follow while accessing such private information.
  4. The consent and guidance of the court is not required when the taxpayer is carrying out this gross abuse of privacy.
  5. It has reduced a constitutional right into a mere footnote without even providing for limitations in an Act of Parliament.

 

It is not in doubt that the KRA should be allowed to access records and other information about the taxpayers to ensure that everyone pays his fair share of tax. The contention of this article is that such powers of access and enforcement should be exercised within the constitutional prism to ensure that there is a balance between the rights of taxpayer and the obligations of the revenue authority. And that the provision in the Act which seem to limit a taxpayer’s right to privacy are prima facie unconstitutional. This was affirmed AIDS Law Project –Vs- the Honourable Attorney General and 2 others[31]  where it was held that any Act of parliament which offends the constitution ought to be invalid.

 

Secondly, both the Act and the Tax Procedures Act No. 29 0f 2015 also lacks any relevant provision which endeavour to protect the privacy of the content of any documents submitted to the KRA. This provision which compels tax authorities to keep taxpayers tax information secret is a signature provision in a fair tax statute. It is believed that while it constitutionalize the Act, it may also help the KRA increase its tax base by encouraging people to make complete and honest income disclosures to KRA with the full knowledge that such information will not be passed over to third parties or the prosecutorial authorities.[32] The courts had a similar view in a celebrated South African case of Sackstein v SARS[33] where the court stated that protection of the tax information provided by taxpayers can help a tax authority to collect more revenue from taxpayers who are willing to make full disclosure of their affairs, including possible income earned from illegal activities on the understanding that the information they have provided will not be used against them.

 

 

This right ought to be clear and explicit in law. Just like the right to privacy, this right could also be limited in a manner that shall be clearly provided in law. For example the KRA could be allowed to disclose a taxpayer’s tax information only after obtaining the consent of the taxpayer or pursuant to a court order. As presently prescribed, the Act falls short of these constitutional protections to which every taxpayer is rightfully entitled. The country should remedy this situation by finding a better balance between the constitutional rights of each taxpayer to disclose all income, irrespective of the legality or otherwise of the manner in which it is derived, as required by the Yaya case, on one hand, and the taxpayers constitutional right to privacy which protects a taxpayer from disclosing information which could lead to breach of his privacy or exposing himself to the possibility of self-incriminating.

 

  • Fairness, Equity and Purposive Interpretation of the Act

In his famous work The Wealth of Nations Adam Smith stated that:

 

The subjects of every State ought to contribute towards the support of the

Government as nearly as possible to their respective abilities that is in

Proportion to the revenue which they respectively enjoy under the protection of the State in the observance or neglect of this maxim consists what is called equality or inequality of taxation[34]

 

It is submitted that the failure to tax income derived from illegal activities can have far reaching implications for any country in that those involved in criminal business activities will gain a competitive edge over those engaged in lawful business practices. The result is that the people running unlawful businesses will produce products at a reduced cost, and then sell them at a lower rate than those businesses that pay their taxes. This forms the thinking of criminals generate better gains and expect such gains not be subject to tax on the grounds that they originate from illegal activities.[35] If this is allowed to continue unabated it would kill the moral of other citizens to work hard and honestly declare their wealth to KRA.

 

It is for this reason that most states endevour to have a fair tax system which would tax income by all citizens irrespective of the source of such incomes. If this is done then the State would be said to be ‘keeping its revenue eye open and its eye of justice closed’.[36] This could partially explain why the court of appeal opted to tax income form illegal sources to ensure that all citizens who make income from within the country are taxed on all their income indiscriminately and irrespective of its source.

 

 

4.0 COMPARATIVE STUDY

This work has identified the following there countries for comparative study. The Republic of South Africa (RSA), it has been chosen because it has well developed tax law and it’s one of the foremost democracies with a robust, dynamic and pretty effective tax system which has aligned itself to the best practices in the world. The United States of America (USA), because it is the leading democracy in the world with a very advanced and effective tax code. The United Kingdom (UK), because the country was a former British colony and adopted most of its tax laws from the country.

 

In the RSA a taxpayer who has obtained any income through unlawful means can be bound to pay tax on such income. There are no constitutional safeguards to protect him from invoking the defence of self-discriminating within the South African Income Tax Act of 1958 as amended. And an exparte order obtained by the Commissioner for the South Africa Revenue Service could allow him to share the taxpayers’ information with third parties. And any court can direct ta the evidence so obtained from the taxpayer could be admitted and used as evidence against the taxpayer in a case against the taxpayer.[37]

 

In the USA the Inland Revenue Code (IRC) compels taxpayers to disclose all information regarding their income, including information regarding income that derives from illegal activities. The IRC does this by inter alia making it a misdemeanor punishable by prescribed fines and imprisonment to fail to pay tax, file a return or keep records where these actions are required by law.[38] The fifth amendment of the USA constitution however protects the taxpayer from giving any self-incriminating evidence or disclosures to the IRC. USA case law has demonstrated that the courts in that jurisdiction have been prepared to give effect to the constitutional protection afforded the taxpayers by the Fifth Amendment, in striving to struck the required balance between the duty to disclose income derived from illegal activities and the constitutional right against self-incrimination.[39]

 

The UK legal system also propagates for the taxation of all income including the any income earned from possible illegal activities. The courts in the UK also recognize the constitutional right of taxpayers to be protected against use of the information in their tax returns that may amount to self-incrimination.[40] The UK has thus been able to strike the balance between the duty to disclose income derived from illegal activities and the constitutional right against self-incrimination.

 

5.0 CONCLUSION

 

It has been seen from the discussion above that taxation of income from illegal activities is taking root in Kenya, notwithstanding the fact that it is tainted with illegality This article makes it clear that a taxpayer who has income derived from unlawful activities, can elect one of three possible courses of action: Firstly he can disclose the income but not state the illegal means by which it is derived; secondly he can elect not to disclose the illegal income in his tax returns; finally he can fully comply by disclosing the illegal income as well as the manner in which it is derived.

 

If the taxpayer choses  the first possible course of action, he would have to state false means by which the income is derived, thereby exposing himself to a possible charge of refusing or neglecting without just cause to reply or answer truly and fully to the details of the tax returns.[41] To make things worse for the taxpayer, he would then be burdened with the onus of showing the existence of a just cause for such refusal or neglect or else he shall. Secondly, if he chooses the second option he could be prosecuted for failing or neglecting to furnish, file or submit a return and, in terms of section 110 of the Income Tax Act, face a fine one hundred thousand shillings or imprisonment for a period of up to six months, or to both.  If he opts for the third alternative he faces possible self-incrimination as the information in the tax returns can, if considered relevant to the director of public prosecution constituted a serious non-tax criminal offence.

 

Although the constitution protects a taxpayer against giving the taxpayer any information which is self-incriminating the Act has does not extend him similar protection. In the same manner, the Act also does not protect the privacy rights of a taxpayer in these same way that the constriction extends similar rights. It therefore becomes difficult for a taxpayer to obtain the desired constitutional protections. This is perhaps attributable to the fact that the Act has not been amended to align it to the constitution.

 

Overcoming the challenge of taxing illegal income is never easy because most criminal don’t employ accountants to keep their books of accounts, nor do they invite auditors to audit the books of accountants. Furthermore, these taxpayers don’t keep a paper trail of their illegal transactions. On the flipside there could be the dilemma that taxpayer may face if the court orders for the restitution of the stolen loot on which tax had already been paid. Would the KRA allow such a person to recover any tax that has already been paid from the stolen loot?

 

6.0 RECOMMENDATIONS AND WAY FORWARD

This study proposes the following recommendations to the legislature, the Government of Kenya and the national treasury as a way forward in dealing with the present challenge of levying income on unlawful activities:

 

  1. Adopt the Australian system of not allowing deductions in relation to any illegal activity from the taxable income from unlawful activities.
  2. Align the Act to the constitution by amending the relevant provisions within the Act which can allow for protection of privacy rights and protection of the employee rights against self-incrimination. This alignment shall include the provision of prosecutorial immunity to any taxpayer who discloses the sources of his criminal income in his income tax returns. This immunity should extend to content of the details of the taxpayers tax return to ensure that they are never used by the Director of Public Prosecution in any criminal trial.
  3. The treasury, KRA or the legislature could formulate regulations which could guide the KRA on the procedures to be followed in the event that it intends to access private records of any taxpayer.at the very least, the KRA ought to be compelled to obtain an ex parte court order before it can access such records.
  4. Tax law is dynamic and complex. The judges who are stationed at the Commercial division of the High court should be exposed to continuous training on new developments in the field of tax law.
  5. Any ill-gotten wealth should be deemed to have accrued to the criminal taxpayer. If this proposition is adopted, then, tax that has been paid by a person from an unlawful transaction would not be refundable even if the court orders for a restitution of the ill-gotten wealth. At the same time the argument by some criminals that they lack legal claim to ill-gotten income or benefit shall be forestalled.
  6. To bring certainty, equity and fairness in the taxation of income, section 3 of the Act should be amended and aligned to the decision in Yaya case so as to make it clear that all income irrespective of their source is taxable.

[1]*** Section 3(2) of the Income Tax Act, Cap 70 of the Laws of Kenya (the Act)

[2] [2008] eKLR

[3] Nairobi, Misc. civil Application No 374 of 2006 (reported [2008] eKLR

[4] Section 13(2) of the Immigration Act, Cap 172 of the Laws of Kenya.

[5] Section 13(2) (f) of the Immigration Act, Cap 172 of the Laws of Kenya

[6]Nairobi Civil Appeal No. 59 of 1993

[7] Civil Appeal No. 55 of 2009 (reported [2016] eKLR

[8] J. Kobler, Capone: the Life and World of Al Capone (1971); K. Allsop The Bootleggers and their Era (1961).

[9] Section II of the Revenue Act of 1913.

[10] 15 F. 2d 809 ( 4th circuit 1926)

[11] 343 U.S 130 (1952)

[12][1932] 1 KB 752, 16 TC 523

[13] [2014] eKLR

[14] (1869) LR 4 E. & I. App. HL 100, 122.

[15] Commissioner of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355,375.

[16] (2003) 51 ATR 654.

[17] Greenberg D  Craies on legislation (2004) 8th edition, London: sweet and Maxwell pages 562-564

[18] Steven R In law and politics- the House of Lords as a Judicial Body 1800 – 1976(1979) London Weidenfield and Nicolson pp 600

[19] Nairobi JR No 36 of 2011 [2014] eKLR

[20] [2012] eKLR

[21] [2014] eKLR

[22] 26 SATC 326 1965 (1) SA 59 (SR AD).

[23] Ranjana Gupta “ Taxing Income From Unlawful Activities” Taxation of Australasian Tax Teachers Association (2008) vol. 3 No. 2

[24] Article  2(4) of the Kenyan Constitution(2010)

[25] G Goldswain ‘Illegal Activities – Taxability of its Proceeds’ (2008) 22 Tax Planning 143

[26] H Donaldson ‘Hansie and the Taxman – Funds for the Fiscus’ (2000) 14 Tax Planning 81

[27] Article  49 (1) (d) of the Constitution of Kenya(2010)

[28] Article  50 of the Constitution of Kenya(2010)

[29] Article  31of the Constitution of Kenya(2010)

[30] Nairobi HCMA No. 743 of 2006 {2007} 2 KLR 20

[31] [2015] eKLR

[32] B Croome ‘Sounds of Silence – Secrecy Provisions’ (2009) 23 Tax Planning 2;

[33] 2000 (2) SA 250 (SE) 62 SATC 206.

[34]Smith A “An Inquiry into the Nature and Causes of the Wealth of Nations” (1776) Vol. 2 Oxford University Press at 350-351, edited by Campbell RH, Skinner AS and Todd WB.

[35] O Ogunnsanwo ‘A comparative study and analysis of the taxability of illegal income in South Africa and United States of America’ (Unpublished LLM thesis, University of Pretoria 2013)

[36] Mann v Nash (H M Inspector of Taxes) [1932] 1 KB 752, 16 TC 523 at 530

[37] Section 4(1B) the South African Income Tax Act No 58 of  1962 as amended.

[38] Sec 7203 the Inland Revenue Code

[39] E.g. Garner v United States and United States v Barnes

[40] The DPP v Michael Collins, Unreported Circuit Court judgment delivered on 27 September 2007.

[41] Section 110 of the Income Tax Act, No. 470 of the Laws of Kenya.

Economic Justice

ECONOMIC JUSTICE

By Shree Krishna Singh

Abstract

In present era a social welfare state is the need of hour and no state can become a welfare state unless and until it provides socio, economic and political justice to its subjects. The draftsman of the Indian Constitution enshrined provision in Constituion with keeping in mind view of a welfare state. Even language of preamble of the Indian Constituion contain the word which states that it is the obligation upon the state to secure to all its subjects social, economic and political justice, however mere inscription of these words will not suffice the interest of the peoples. To ensure the object of the preamble Indian Constitution provides many provisions which secure economic justice for its citizen. Some of the Fundamental rights and Directive principle of state policy carries the provision to provide economic justice to its subjects. Even Indian State is also tends to become social welfare state and the provisions enshrined under fundamental rights and directive principle of state policy helps the state to achieve such status. Researcher used the Doctrinal type of research to gather ample data for the research and accumulated them in a systematic way to create work which deifnes how Indian Constitution is working a protector of the peoples right. Constituion of Indian prescribed some fundamental rights to its citizen which are right in rem (available against the whole word) and these rights tend to promote economic justice to its subjects. Therefore Indian Constituion is the guardian of the rights of the people and tends to promote economic justice to its citizen for the development of the state.

 

KEYWORDS- Economic Justice, Fundamental Rights, Directive Principle of State Policy.

Introduction

Under International Law a State defined as “an Independent political entity, occupying a defined territory, the members of which are united together for the purpose of resisting external force and the preservation of internal order.” We can infer from this definition that it only lying emphasis upon the police function of the state however in modern era no state rests with such limited functions. It is tends to become a social welfare state and no state can become a welfare state unless and until it protects the economic interest of its subjects. Even Indian Constituion is tends to make a social welfare state through the economic justice. Preamble of the Indian Constituion contain the word which stated that it is the obligation upon the state to secure to all its subjects social, economic and political justice, however mere inscription of these words will not suffice the interest of the peoples. This research paper mainly focused upon the provisions related to the economic justice and seeks to explain different rights ensured by the Indian Constituion to promote economic justice to its subjects. Constitution of India provides different fundamental rights to the peoples of India and even ascribed some duty on the part of state under directive principle of state policy through which it ensures the economic justice to its people. This research paper can be divided in three parts first part have detailed analysis upon the fundamental rights of peoples which are important to ensure economic justice and second part dealt with directive principle of state policy to provide economic justice and last part consist of right to property (constitutional right) to ensure economic justice to the peoples of India. Researcher seeks to explain the importance of economic justice under a state with the help of different judicial pronouncements and tries to explore the different notions of economic justice. Right to equal pay for equal work, right to equality in opportunity in public employment, right to freedom of trade and commerce and living wage for the workers are the example of notions of economic justice which covered under this detailed analysis.

 

  1. Economic Justice under Indian Constituion

What is Economic Justice?

When we think about the economic justice what comes to in our mind, may be equal opportunity to all in matter of public employment, equal pay scale irrespective of caste, gender etc. we can say that economic justice is the component of social justice because it is a much bigger concept than economic justice, many of the time through social justice economic justice is done to peoples like equality of opportunity in public employment ensures not only economic justice but also social justice, somehow both of them interrelated with each other. We can also say that the main objective of the economic justice is to create foundation upon which all people have equal opportunity to live a dignified and productive life without any discrimination. [1]

Economic justice ensured how a person is going to produce an independent material foundation for his or her economic sustenance and provide them equal opportunity to do this. The ultimate purpose of economic justice is to free each person to engage creatively in the unlimited work beyond economics, that of the mind and the spirit.[2]

Fundamental rights ensuring Economic justice

Preamble considered as soul of the Indian Constitution where it enunciates the main objectives of the Indian Constitution which is to secure to all its citizens social, economic and political justice.[3] Fundamental rights provided in Part (iii) of the Indian Constitution, there are several articles contained under this part which ensures the economic justice to its all citizens like Art 16, 19, 23 and 24 etc.

Article – 16 (Equality of opportunity in Public Employment)

Article 16 can be divided in two distinct parts, where in first parts it is ensured that every person irrespective of his religion, race, caste, sex, decent, place of birth and residence will get the equal opportunity in matters relating to employment or appointment of any office under state.[4] On the other hand in second part article 16 have the notion of equity and stated that state have the power to make reservation for the backward class. The main reason behind reservation is the heterogeneity and multifarious population because many of the peoples of country are lagging behind in terms of culture, economy and education in comparison to others. Under Art–16 it is given that there should be equality of opportunity for all citizens in matters relating to employment or appointment of any office under the state, it also prohibits the discriminatory process in respect of any employment under the state. However state is free to make any provision for the reservation of appointments or posts in favor of nay backward class of citizens which, in opinion of the state, is not adequately represented in the services under the state. In simpler words Art-16 of the Indian constitution ensures that all its citizens will get the equal opportunity to earn their livelihood in terms of economy. Main object of this article is to facilitate the economic justice between peoples and eradicate the inequality in terms of employment. Equality of opportunity of employment means equality as between members of the same class of employees and not equality between members of separate, independent classes.[5] Basically it means that backward class peoples can be provided some sort of extra privilege in respect of employment. If we look at the structure of the Article 16 of constitution, one can clearly say that this article is fully devoted towards ensuring economic justice to its subjects. In Indra Sawhney V. Union of India[6], known as the Mandal Commission case, is a very significant pronouncement of the Supreme Court of India on the question of reservation of posts for backward classes. In this case court held that reservation cannot exceed 50% in any one year.[7]

Article – 19 (Right to Freedom regarding certain rights)

Article 19 of the Indian Constitution can be divided into two distinct parts from the point of view of economic justice. The first one is relates to article 19 (1) (g), where it is given that all citizen have the right to practise any profession, or to carry on any occupation, trade or business. Before the 42nd amendment Indian constitution also have the right to property as fundamental right however it repealed after the amendment. On the other hand second part comprised of article 19(6). Where state has the power to impose reasonable restriction upon the right ensured by the 19(1) (g). After 42nd amendment under Indian Constitution a new world was added in preamble which is the ‘Socialist’. if we look at the strict meaning of socialist in terms of economy, it will reflect that complete and rigorous state ownership as a matter of policy. However it does not mean that total exclusion of private ownership from the means of production, In India there has always been emphasis upon mixed economy which means that state will have ownership in matters relating to means of production however it can only impose reasonable restriction upon the private ownership.[8] In different cases like Excel wear v. Union of India[9]Supreme court clarifies that the word socialist will not recognizes the complete state ownership and government will work as a mere facilitator rather than as a controller. However it does not mean that government do not have the power to create it supremacy; in different cases like Akadasi Padhan v. State of Orissa,[10] the Supreme Court upheld the validity of and Orissa law conferring monopoly rights on the state in matter of trade in kendu leaves. State can create the monopoly in the favor of its own but not in the favor of the third party[11], the profits arising from the sale must be for the public benefits not for the benefits of the third party, Monoply in a commodity may be valid if it is only for the benefit of the state. It should not serve the private interests of any one person or classes of person.[12]

Article 19 (6) stated that state can impose reasonable restrictions, however there is question comes to one’s mind is that what are there reasonable restrictions. Indian judiciary with the help of different cases pronounced the valuable judgments where it laid downs the limit to which extent a restriction can be posed by state. The factors which determine the reasonableness of a restrictions are differ in every case according to its circumstances, there is no hard and fast rule is there, however a restriction cannot be impose arbitrarily on the persons. In chintaman Rao[13] The Supreme Court laid down the test for reasonable restriction as follows “ the phrase reasonable restriction connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the intrest of the public. The word reasonable implies intelligent care and deliberation, that is, the choice of a course which reason dictates legislation which arbitrarily or excessively invades the right cannot said to contain the quality of reasonableness and unless it strikes the proper balance between the freedom gurantted by article 19 (1) (g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality”[14] In Indian history there are cases where street hawkers claim the right enshrined under Article 19(1) (g), however Court pronounced the some rich judgments regarding to the right of street hawker to carry on their trade on public streets. Cases like Bombay Hawakers Union v. Bombay Municipal Corporation[15], Sodan Singh v. New Delhi Municipality[16], Supreme Court draw out some points rights of Street Hawkers.

  • No one has a right to do business so as to cause annoyance or inconvienece to members of public. Public streets are meant for use by the general public; they are not mean to facilitate the carrying on of private trade or Business.[17]
  • Right to carry on trade or business mentioned under art 19 (1) (g) on street pavements. They are meant for use by pedestrians, these pavements cannot used in any other manner. Court stated that Street hawkers don not have fundamental right to occupy a particular place on the pavement where they can squat and can do business. However court directed that there should be hawking zones in the city where licenses should not be refused to a Hawker.[18]

Article – 23 and 24 (Right against exploitation)

Whenever we look at the Article 23 and 24 of the Indian Constitution, all we have got is that both of them one way and other prohibiting something, the first one is prohibiting human forced labour and second one prohibiting employment of children in factories. Both of these section on the outer side looks like that they are serving social justice more than anything, however if we pierce their shells we will get to know they are serving economic justice too. It is not explicitly given there but manifested inherently.

Indian Constitution under article 23 seeks to prohibit the forced labour which ultimately leads to economic justice to the peoples because no one has the right to exploit others economically. Forced Labour refers to a person who is forced to render his service without any remuneration at all. In People’s Union for Democratic Rights v. Union of India,[19] Supreme Court of India prohibited the every form of forced labour and provided justice to peoples economically. In this case Supreme Court of India broadened the horizon of term Forced labour, prohibiting the every form of it. A forced labour arise from different forms “The word ‘Force’ must therefore be construed to include not only physical or legal force but also force arising from compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than minimum wage.”[20]

In the words of Bhagawati, J,:

“Where a person is suffering from hunger or starvation, when he has no means to feed his wife and children or even to hide their nakedness, where utter poverty has broken his back and forced him into the state of helplessness. In such kind of situations if any time of work comes his way irrespective of its remuneration, he have to accept it because he is not in the position to bargain with employer. And in doing so he would be not acting as free agent but under such compulsion of economic circumstances and the labour or service provided by him would be clearly Forced Labour’.[21]

Article 23 is also seek to prohibit bonded labour which means that one person is bonded to provide labour to another for years and years until a debt is supposed to be wiped out. The bonded labour is designed to enable a few socially and economically powerful persons to exploit weaker section of the society which ultimately lead to economic injustice to the exploited peoples.[22] There are the cases where Indian judiciary pronounced the valuable judgments regarding to bonded labour. In Bandhua Mukti Morcha v. Union of India[23] Supreme Court observed that “the concept of bonded labour is totally incompatible with the new egalitarian socioeconomic order which we have promised to build and it is not only an affront to basic human dignity but also constitutes gross and revolting violation of constitutional values.”

We can say that Article 23 is the best article to securing economic justice because it tries to put weaker section of society to equal footing as other section of society and ensuring them economic justice. Judiciary interpreted this article in such a way that this article not only prohibits the bonded labour but also making obligation on the state for the rehabilitation of the freed bonded labourers.[24]

Article 24 is also dealing with Economic exploitation however it is limited to children’s. This article seeks to ban the child labour in the country however it is realized that a total ban on child labour may not be socially feasible to the Indian society because of its gross poverty. It only prohibits the employment of the child below the 14 year to work in any factory or mine, or in any other hazardous employment. In cases like Laborers Working on Salal Hydro project v. State of Jammu and Kashmir[25] and M.C. Mehta v. State of Tamil Nadu[26] Indian Judiciary have made his stand against the Child Labour and seeks to alleviate the condition of poor child’s. This article is also serving people to economic justice, because of child labour prohibition, child will not go to work and he will receive free education by the state which ensures economic justice because they are getting equal opportunity to create economic means to survive.

  1. Ensuring Economic Justice through Directive Principle of State Policy

Art – 38 (State to secure a social order for the promotion of welfare of the people)

The directive principle of state policy seek to give direction to the government and legislatures in India as to how and in what manner and for what purpose, they are to exercise their power however these principles are non-enforceable against state unlike fundamental rights. Article 38 (1) directs the state to strive “To promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, socio, economic and political, shall inform all the institutions of the national life.” Somehow article 38 is reaffirming the main object of the preamble of Indian Constitution viz,. The function of the republic is to secure social, economic and political justice for its citizen and it clearly enshrined in our preamble.[27]

Article 38 (2) putting the obligation upon the state to minimize the inequalities in income, inequality in status and facility and opportunity to everyone without any discrimination. We can infer from the structure of Article 38(2) that it clearly framed to provide economic justice because it seeks to eliminate income and opportunities inequality to the peoples of India. In Sri Srinivasa theatre v. Govt. of Tamil Nadu,[28] Supreme Court envisaged the notion of equality under article 38 “Equality before law is a very dynamic concept having many facets and it will not be possible to ensure equality before law without equality in society.” Supreme Court has pointed that state has all power to equalize the society including taxation and other policies. The great burden of taxation is put upon the rich to equalize the society. Article 38 is mainly dealing with the social justice however it serves economic justice too like providing equality in income have two facets, first one is that it will leads to the economic justice on the other hand impliedly it ensuring social justice because equality in income will bring equality in status.

Art – 39 (Certain Principles of policy to be followed by state)

Article 39 of the Indian Constitution, explicitly showing traces of economic justice, this article requires the state, to direct its policy toward securing some of the rights of people which can benefit them economically. Supreme court has taken recourse to Article 39(a) to interpret with Article 21 and observed that “Any person who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation of the as offending the right to life conferred by article 21[29]

Article 39(b) and (c) is ensuring distribution of ownership or distributive economic system, these provisions are so significant as they can affect entire economy of India. This article is the classic example of the socialism under the Indian constitution where it seeks to provide economic justice. The expression material resources of the community under article 39(b) covers the land held by private owners also. Government can take the private lands for the development of the community like in making roads, drains, playground etc.[30]A socialistic state always seeks to provide socio-economic justice to its subjects.

Article 39(d) is also ensuring the principle of equal pay and equal work. It stated that it is the duty of the state to provide equal wages for equal work irrespective of gender. Supreme Court stated that though the principle of equal pay for equal work is not expressely declared by the constitution to be a fundamental right yet it may be deduced by construing article 14, 16 and 39(d). The word socialist at least mean equal pay for equal work for the people. In a case Girh Kalyan Kendra v, Union of India,[31] it is observed that “Equal pay for equal work doctrine will be applied widely to stop discriminatory practices.” Men and women both will receive equal pay for their equal work and no one can discriminate between them in terms of gender Court also made clarification that doctrine of equal pay and equal work was originally propounded in directive principle of state policy, however this doctrine has assumed the status of a fundamental right under article 15 and 16 of the Indian constitution. Even in Randhir Singh v. Union of India[32] the Supreme Court of India was held that doctrine of equal pay for equal work though not a fundamental right is certainly a constitutional goal and, therefore, capable of enforcement through constitutional remedies under article 32 of the Indian constitution. We can lucidly infer from this article is that it is devoted to it people to ensure economic justice.

Art – 43 (Living wage, etc., for worker)

Principles which enunciated by the draftsman of Indian constitution in Article 43 shows that they felt a deep concern for the welfare of the workers in terms of economic matter. This article require the state to endeavor to secure, by suitable legislation, or economic organization, or in any other way, to all workers, agricultural, industrial or otherwise, work, a living conditions or work ensuring descent lifestyle and social and cultural opportunities.[33] This provision enunciates the revolutionary doctrine that employees have right to certain reliefs and saving them from any kind of economic exploitation. Article 43 refers to a “living wage” and not “minimum wage”. The concept of living wage includes in addition to the bare necessities of life, such as food, shelter and clothing, provision of education of children and insurance.[34] Supreme Court of India gave much more importance to this article in D.S. Nakara v. Union of India[35], the constitution bench of the Supreme Court has held that “Pension is not only compensation for loyal service rendered in the past, but also by the broader significance it is a social welfare measure rendering socio-economic justice by providing economic security in fall of life when physical and prowess is ebbing corresponding to aging process.[36]

Under this Article Court bring the idea of socialism again to ensure economic justice to its people. According to the court, the principle aim of the socialism state is to eliminate economic inequality prevailing under the state and if the state is not able to provide living wage to the employees how it is going to setup a welfare state. This article also seeks to prevent economic exploitation of the employer. In a case M.R.F. Ltd. v. Inspector, Kerala Government[37] before Supreme Court observed that it is not the philosophy of the article 43 that industrial or agricultural workers should work on all days. It is necessary that they also enjoy some holidays. As human beings, they are entitled to a period of rest which would enable them to fully enjoy their leisure and participate in social and cultural activities.[38]

Art – 46 (Promotion of educational and economic interests of Scheduled castes, Schedule tribes and other weaker sections)

India is a country of religion. There exist multifarious religious groups in the country and there population of India is so heterogeneous. Article 46 of the Indian constitution made obligation upon the state to promote weaker section of the society with utmost care and to protect them from social and economic injustice and all forms of exploitation.[39] Supreme court observed that expression ‘weaker section’ in article 46 is much broader than ‘backward classes’ because the last one includes people who are socially, educationally and economically backward and people who are not represented adequately in the service under the state. However term weaker section can also take within its compass individuals who constitute weaker section or weaker parts of the society.[40]Supreme Court also observed that Article 46 has notion of distributive justice because it seeks to protect and preserve the economic interests of persons belonging to schedule castes and schedule tribes.

In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan[41], Supreme court clarified that “Article 38, 39 and 46 mandate the state, as its economic policy, to provide socio economic justice to minimize inequalities in income and in opportunities and status and further stated that state is under the obligation to work for the welfare of the society and to make socio-economic justice a reality, meaningful and fruitful so as to make the life worth living with dignity.[42]” There is nothing to infer from this article because everything explicitly is given in the article even Supreme Court, also gave the utmost importance to this article and consider this article as a sign of economic justice to its subject.

Conclusion        

After completing the research, it can be concluded that Indian Constitution provides detailed analysis regarding to promotion of economic justice throughout the territory of India between its citizens. Constituion of Indian prescribed some fundamental rights to its citizen which are right in rem (available against the whole word) and these rights tend to promote economic justice to its subjects. Main object of article 16 is that to facilitate the economic justice between peoples and eradicate the inequality in terms of employment. Even in our preamble the word socialist was incorporated through the 42nd amendment which means that state have the complete power to control the economic affairs however in India there is a difference because we have mixed economy where both private and state ownership exist side by side and Supreme court clarifies that the word socialist will not recognizes the complete state ownership and government will work as a mere facilitator rather than as a controller. Article 19 also promote economic justice because 19 (1) (g) provide peoples to practise any profession, or to carry on any occupation trade or business however state can impose some reasonable restriction. One might think that on one hand it giving a right and another hand restricting, the answer is that these rights are no absolute in terms, if these restriction will not imposed it will lead to the destruction of justice to the peoples because one can use them as arbitrarily. Article 23 and 24 also are the way to ensure economic justice because they tend to prohibit bonded labour which economically exploited by the strong section of society and prohibit child labor to save children from the exploitation. These prohibitions helped the state to promote economic justice the peoples. Even directive principle of state of policy contain of some duty which are obligatory in nature on the state tend to promote welfare among its subjects. Article 38(2) state that state will strive to minimize the economic inequalities prevailing among its subjects and article 43, this provision enunciates the revolutionary doctrine that employees have right to certain reliefs and saving them from any kind of economic exploitation. Article 43 refers to a “living wage” and not “minimum wage”. The concept of living wage includes in addition to the bare necessities of life, such as food, shelter and clothing, provision of education of children and insurance. Therefore Indian Constituion is the guardian of the rights of the people and tends to promote economic justice to its citizen for the development of the state.

 

 

[1] Economic Justice, available from http://www.investopedia.com/terms/e/economic-justice.asp?layout=infini&v=4A&adtest=4A, accessed on 3/7/2016.

[2] Economic Justice, available from https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=11&cad=rja&uact=8&sqi=2&ved=0ahUKEwiDjqOq-a7LAhWHCo4KHZauBOUQFghTMAo&url=http%3A%2F%2Fcondor.depaul.edu%2Fjwillets%2Faeseminar%2FEconomic%2520%26%2520Social%2520Justice.rtf&usg=AFQjCNGoOouqqlRykcIOkCflCE0pl428wQ&bvm=bv.116274245,d.c2E, accessed on 3/03/2016.

[3] M.P. Jain, Indian Constitutional Law, LexisNexis, 12 (7th ed.2016).

[4] Ibid,p.967.

[5] Ibid,p.965.

[6] AIR 1993 SC 477: 1992 Supp (3) SCC 217.

[7] M.P. Jain, Indian Constitutional Law, LexisNexis, 997 (7th ed.2016).

[8]Ibid,p.14.

[9] AIR 1979 SC (36).

[10] AIR 1963 SC 1074 : 1963 Supp (2) SCR 691.

[11] State of Rajsthan v. Mohanlal, AIR 1971 SC 2068 : (1971) 3 SCC 705.

[12] M.P. Jain, Indian Constitutional Law, LexisNexis, 1067 (7th ed.2016).

[13] Chintaman Rao v. state of Madhya Pradesh, AIR 1951 SC 118

[14] M.P. Jain, Indian Constitutional Law, LexisNexis, 1071 (7th ed.2016).

[15] AIR 1985 SC 1206 : 1985 (3) SCC 528.

[16] AIR 1989 SC 1988 : (1989) 4 SCC 455.

[17] M.P. Jain, Indian Constitutional Law, LexisNexis, 1075 (7th ed.2016).

[18] Ibid.

[19] AIR 1982 SC 1473 : (1982) 3 SCC 235.

[20] M.P. Jain, Indian Constitutional Law, LexisNexis, 1235 (7th ed.2016).

[21] M.P. Jain, Indian Constitutional Law, LexisNexis, 1235 (7th ed.2016).

[22] Ibid,p.1238.

[23] AIR 1984 SC 802 : (1984) 3 SCC 161.

[24] Neeraja Chaudhary v. State of Madhya Pradesh AIR 1984 SC 1099 : (1984) 3 SCC 243.

[25] AIR 1984 SC 177 : (1983) 2 SCC 181.

[26] (1996) 6 SCC 756 : AIR 1997 SC 699.

[27] M.P. Jain, Indian Constitutional Law, LexisNexis, 1416 (7th ed.2016).

[28] AIR 1992 SC 999, 1004 : (1992) 2 SCC 643.

[29]M.P. Jain, Indian Constitutional Law, LexisNexis, 1418 (7th ed.2016).

[30] Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 445 (52nd edition 2015).

[31] AIR 1991 SC 1173, 1176 : (1991) 1 SCC 619. .

[32] Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 447 (52nd edition 2015).

[33] M.P. Jain, Indian Constitutional Law, LexisNexis, 1428 (7th ed.2016).

[34] Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 52nd edition, Allahabad, 2015,p.449.

[35] AIR 1983 SC 130 : (1983)  1 SCC 305.

[36] M.P. Jain, Indian Constitutional Law, LexisNexis, 1429 (7th ed.2016).

[37] AIR 1999 SC 188 : (1998) 8 SCC 227.

[38] M.P. Jain, Indian Constitutional Law, LexisNexis, 1430 (7th ed.2016).

[39] Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 449 (52nd edition 2015).

[40] M.P. Jain, Indian Constitutional Law, LexisNexis, 1433 (7th ed.2016).

[41] AIR 1997 SC 152 : (1997) 11 SCC 121.

[42] M.P. Jain, Indian Constitutional Law, LexisNexis, 1434 (7th ed.2016).

Interpretation Of The Constitution And The Constitutional Bench: Issues And Challenges

INTERPRETATION OF THE CONSTITUTION AND THE CONSTITUTIONAL BENCH: ISSUES AND CHALLENGES

Written by Anamika Dass

Introduction:

“Constitutional bench verdicts in the Supreme Court are now an endangered species, and the court has embraced the role of an appellate adjudicator more than its traditional and primary role of being a constitutional arbiter or as perennial source of authoritative law of comparatively greater longevity,” said a senior advocate Govind Goel[1].

Chief Justice of India T.S. Thakur’s highlighted the ‘burden’ being placed on the Indian judiciary by way of judicial delays and backlogs in India.

In May 2016, CJI, Thakur quantified this inadequacy with a claim that India needs 70,000 judges to clear the pending cases. The basis of his speech indicates the benchmark of having 50 judges per million population. The origin of the parameter of “50 judges per million” lies in the 120th report of the Law Commission of India.

With India’s population being pegged at 1.34 billion[2] as of February 2017 and applying this benchmark, India should have approximately 65,000 judges is going to be herculean, if not impossible, the task in next few decades.

The current judicial strength stands at 28, short of three judges.

What was the intention of the framers of the constitution behind Article 145(3) and the creation of the constitution bench? In this paper, I would discuss the change in the trend that has been observed since Independence in the creation of the constitution benches and disposing of the cases and what can be the way ahead to deal with the pendency of the cases.

 

 The Idea: Constituent Assembly Debate:

Volume VIII; Monday, the 6th June 1949

The need for five or more judges sitting in judgment over questions of constitutional importance traces its history from the deliberations of the Drafting Committee in October1948 where it was recommended that the proviso to Article 121(2) (now Article 145(3)) read that “it shall be the duty of every judge to sit for the said[3] purposes”, the purpose herein being “deciding any case involving a substantial question of law as to the interpretation of this Constitution.”

Shri T. T. Krishnamachari was putting his argument in the Parliament before Dr. B.R Ambedkar that “That for the proviso to clause (2) of Article 121, the following be substituted: ‘Provided that it shall be the duty of every judge to sit for the said purpose unless owing to illness he is unable to do so, or owing to personal interest or other sufficient cause he considers that he ought not to do so[4].

While, Shri Alladi Krishnaswami Ayyar said “That concerning amendment No. 1964 of the List of Amendments, for clause (2) of Article 121, the following clause be substituted

2) Subject to the provisions of the next succeeding clause, rules made under this article may fix the minimum number of judges who are to sit for any purpose, and may provide for the powers of only Judges and Division Courts.

2(a)The minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution, or for the purpose of hearing any reference under Article 119(before amendment) of this Constitution shall be five:

Provided that where the Court hearing an appeal under Article 111(before amendment) of this Constitution consists of less than five judges and in the course of the hearing of the appeal the court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal such court shall refer the question to a court constituted under this clause for opinion and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.'”

Further, he said that there is no need to comment on the subclause (2), and (2a) which speak for themselves. The only clause which requires some elucidation is the proviso[5].

“The main idea of the proviso is that judicial time need not be unnecessarily wasted.”

While this suggestion was not adopted in its entirety, we do have Article 145(3) in place which mandates that “the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution shall be five.”

There are many situations where the constitutional question has been raised along with the other questions, conclusion that the constitutional point that is raised is not necessary for the disposal of the appeal, and that the case can be easily disposed of on the other aspect that has been raised. Under those circumstances, it will be the sheer waste of judicial time that a Bench of five Judges should hear this case if otherwise, a Bench of three Judges can under the rules of the Court dispose of the appeal.

  • The important question that comes to mind is what substantial question of law is? What are the parameters that define the term Substantial?

Some of the possible interpretations could be:

1) Any case involving the interpretation of the Constitution. After all, it’s probably a “substantial” question for the parties involved, even if to no one else.

(2) Any case that turns on the interpretation of the Constitution (i.e. the interpretation of the Constitution is of substantial, not secondary, importance to the case).

(3) A case that is of general importance to the country (i.e. a case of “substantial” importance)

(4) A new or novel question of the interpretation of the Constitution (i.e. a question that has not already been decided by five judges which a smaller bench could then use as precedent )

  • Does any other provision of the Constitution tell us anything about how to interpret 145(3)?

Article 133, discussing the Court’s appellate jurisdiction for certified civil matters, the Constitution states that one of the criteria for a case to be appealed is “that the case involves a substantial question of law of general importance.” This provision seems to indicate that not all substantial questions of law are of general importance. So we have a good first clue about what the intent of the framers might have been. “Substantial question” seems to mean something different than “general importance”[6].

  • The Interpretation of the Constitution should involve:

(1) a plain meaning reading of the Constitution;

(2) an attempt to harmonize the meaning of different sections of the Constitution;

(3) an examination of the intent of the framers;

(4) an examination of relevant jurisprudence; and

(5) an examination of what is good policy.

 

The Practice: last six decades

These Constitution Benches were known to give India’s best known and the important judgments like A.K. Gopalan vs. State of Madras[7]  (Right to life), Keshavananda Bharati vs. State of Kerala[8] (Basic structure doctrine) and Ashok Kumar Thakur vs. UOI[9] (Reservations)

Despite their Central role in the Constitutional Jurisprudence yet their number has been declined dramatically.

During 1960’s court averaged about 100 five- judge bench or more which surprisingly came down to about nine in a year during 2000’s that means that the Supreme Court produces less jurisprudence involving the substantial question of law during this decade.

Other than this decline in the number of the benches there were other changes also that were occurring in the bench which can be traced from the shift in the pattern over the years. It is evident that ever since Independence the Constitution Benches has become less frequent, their judgments became lengthier and significantly delayed[10].

Especially after the emergency, there was more access to the courts which resulted in the increase in the pendency of the cases. There were on average 71 five- judge bench or larger bench per year before the emergency which reduced to 11 per year after that[11].

There was a decline despite the fact that the court increased its number of judges in 1956 from 8 to 11 and then 14 in 1960, 18 in 1977, 26 in 1986, 31 in 2008, however, it is 23 in the present year i.e. in 2017.

In 1950’s about 13 % of the court decisions were given by the five- judge bench or larger bench. As the number of backlog cases increased, they usually sat on the smaller benches. Though according to Article 145(3) there should be at least five- judge bench to decide the case involving the substantial question of law, however, by the 1970’s the number of the reported judgment delivered by two- judge bench is more than that of three- judge bench.

Jurisdiction: About 60% of the Constitution Benches were receiving appeals. On the other hand, only 30% they were directly brought to the court under its writ jurisdiction, 6% in some cases where appealed and brought under writ jurisdiction while the remaining 4% were brought under Article 131 of the Constitution.[12]

 

The Issues:  Constraints of a number of judges and increasing pendency.

The Chief Justice Warren Burger once said,

All litigations are inherently clumsy, time-consuming business”

 Issue 1-

What judiciary is facing is the constraints of the number of the judges, presently in 2017, we have 28 sitting judges in the Supreme Court and is short of three.

Issue 2-

Increasing pendency of the cases which further rose by 3% in 2016 as compared to 2015. The number of the judgment given by the Constitution Bench since independence is 2294 till 2016. Nick Robinson a legal researcher, who has compiled and analyzed the data of 50 years of the Supreme Court and found out that the number of the cases decided by these Constitution benches has been falling steadily from an average of 134 cases during the 1960s to an average of 6.4 cases per year in 2000s.

Reason:

A possible cause of this increase in the pendency of the cases is that over the years the Supreme Court has started taking up routine matters and has become a court of appeal and rectifying the errors made by the High Courts or other tribunals. Court has taken too much of its plate by allowing any litigant and entertaining all kinds of petitions/applications that come before it and somewhere the main reason behind the creation of the Constitution Bench to decide the cases involving a substantial question of law has lost eventually over the years. They had lost its character and had become an apex court solving the disputes of the litigants, and the cases involving the substantial question of law or general importance has been kept aside.

Further, as substantial questions relating to the interpretation of the Constitution were of the utmost importance, the Constitution provided that such questions should be decided by large benches of judges and the minimum number of judges who were to sit for deciding such questions should be five, but in contrast this kind of cases are generally decided by the two-judge bench.

Progressive Dilution:

Presently, all this has changed. The Supreme Court of India has lost its original character and has gone far away with the main idea of the frames behind the creation of the Constitution Bench by self-enlargement of its jurisdiction making itself a general court of appeal by routinely entertaining special leave petitions between litigants which do not involve important constitutional issues or issues of law of general importance. The number of the SLPs and PILs was pending before the court which does not involve any substantial question is increasing every year. And between all these pendency the cases of Constitution and the National importance has been sidelined and not heard for many years. In 2015 only 4 cases were decided.

Presently, the cases of significant importance are decided by the two-judge bench in contrast to the minimum requirement of a five-judge bench; the example can be seen in the case where the Supreme Court nullified Section 8(4) of the Representation of the People Act, 1951. This important decision on the interpretation of Parliament’s legislative powers on members of legislatures convicted of offenses was delivered by a bench of two judges of the Court despite the Constitutional requirement that substantial questions of interpretation of the Constitution should be decided by not less than five judges[13]. A similar situation is in 2G Spectrum case.

 

The Way ahead:

Considering the entire scenario and the evolution of the new jurisprudence and law over the years and with the possible interpretation of the provisions of the Constitution, the main idea of the framers of the Constitution behind the creation the Constitution Bench was to decide upon the case which involves the substantial question of the law, so that the time of Judiciary is not wasted.

Therefore, the possible interpretation is that the “Article 133 should be read with Article 145(3) i.e. whenever the case under Article 133 involves a substantial question of law or general importance it should be heard and decided by the Constitution Bench consisting of the minimum five-judge bench.”

The Supreme Court should embrace its original role perennial source of definitive judgment and the interpreter of law rather than an apex court taking up all routine cases.

By this way, only the main idea behind the creation of the Constitution Bench can be sustained which will not allow the valuable time of the judiciary be unnecessary wasted and there will be no pendency of the cases as well as they will only take up the cases involving the substantial question of law.

Other important points to be concluded-

  1. If the Court gives a sound judgment about what amounts to a “substantial question,” that would be immensely helpful in providing some level of certainty to the jurisprudence around Article 145(3).
  2. Need to constitute a separate Constitution bench that would sit throughout the year to deal only with matters of the kind mentioned in Article 145(3) is already pending as a part of the suggestion.
  3. Constitution bench should be selected randomly to ensure that CJI does not have much power in which judge will sit on which bench.
  4. The discretion of the CJI should also be decreased about when these benches will be heard.
  5. Many of the cases can be clubbed together and can be heard together which are creating the backlog.

 

 

 

 

 

Constitution Benches were known to give India’s best known and the critical judgements like A.K. Gopalan vs. State of Madras (Right to life), Keshavananda Bharati vs. State of Kerala (Basic structure doctrine) and Ashok Kumar Thakur vs. UOI (Reservations) as still are jurisprudence is developing with the judicial pronouncement and the judgements given by higher bench has more definite authority.

In the end, I would like to conclude what had been prevailing in the society cannot be changed overnight. The loss and the pendency can be mitigated together with the help of Judiciary, Government and its people discharge their respective obligations so that the justice delivery system is strengthened to achieve a vibrant rule of law.

[1] http://www.business-standard.com/article/pti-stories/sc-constitution-bench-judgements-since-inception-compiled

[2] http://www.indiaonlinepages.com

[3] parliamentofindia.nic.in/ls/debates/vol8p16b.htm

[4] Shri T. T. Krishnamachari was speaking in Constituent Assembly Debate on 6th June 1949

[5] Shri Alladi Krishnaswami Ayyar was talking in Constituent Assembly Debate on 6th June 1949

[6] Constitution of India

[7] AIR 1950 SC 27

[8] AIR 1973 SC 1461

[9] (2008) 6 SCC 1

[10] http://www.thehindu.com/news/national/casesdecidedbyconstitutionbenchesdropping/ article5348431.ece

[11] Supreme Court of India Annual Report (2009) and All India Reporter (AIR).

[12] Economic & Political Weekly February 26, 2011, Vol XLVI No 9

[13] K.Prabhakaran vs. P.Jayarajan SC, 2005