The Background of Pardon Power: An Introduction

The relevant constitutional provisions regarding the grant of pardon, remissions,  suspension of sentence, etc. by the President of India and the Governor of a State are as follows:

“Article 72: Power of President to grant pardons, etc. and to suspend,  remit or commute sentences in certain cases –

(1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court martial.

(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.”

“Article 161 Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases –

The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”

The provision corresponding to Article 72 in the Government of India Act 1935 was section 295 which read as follows:

(1) Where any person has been sentenced to death in a Province, the Governor-General in his discretion shall have all such powers of suspension,  remission of commutation of sentence as were vested in the Governor-General in Council immediately before the commencement of Part III of this Act, but save as aforesaid no authority in India outside a Province shall have any power to suspend, remit or commute the sentence of any person convicted in the Province. Provided that nothing in this sub-section affects any powers of any officer of His Majesty’s forces to suspend, remit or commute a sentence passed by a court-martial.

(2) Nothing in this Act shall derogate from the right of His Majesty, or of the Governor-General, if any such right is delegated to him by His Majesty, to grant pardons, reprieves, respites or remissions of punishment.” There was no provision in the Government of India Act 1935 corresponding to Article 161 of the Constitution.

The above constitutional provisions were debated in the Constituent Assembly on 29th December 1948 and 17th September 1949. The grounds and principles on which these powers should be exercised were not discussed nor debated.

Power under Criminal Procedure Code:

In addition to the above constitutional provisions the Criminal Procedure Code 1973 provides for power to suspend or remit sentences – Section 432 and the power to commute sentence. Section 433A lays down restrictions on provisions of remission or commutation in certain cases mentioned therein. Section 434 confers concurrent power on the central government in case of death sentence. Section 435 provides that the power of the state government to remit or commute a sentence where the sentence is in respect of certain offences specified therein will be exercised by the state government only after consultation with the central government. Sections 54 and 55 of the IPC confer power on the appropriate government to commute sentence of death or sentence of imprisonment for life as provided therein. For the sake of convenience a comparative table showing the provisions relating to pardon and commutation of sentence is enclosed.

Philosophical Justifications to Pardon Power:

The philosophy underlying the pardon power is that “every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy.” The rationale of the pardon power has been felicitously enunciated by the celebrated Justice Holmes of the United States Supreme Court in the case of Biddle v.Perovich in these words “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that the publicwelfare will be better served by inflicting less than what the judgment fixed”.

In the case of Kehar Singh v. Union of India these observations of Justice Holmes have been approved. The classic exposition of the law relating to pardon is to be found in Ex parte Philip Grossman where Chief Justice Taft stated: “Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or the enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies,  to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments.”

The dicta in Ex parte Philip Grossman were approved and adopted by the Apex Court in Kuljit Singh v. Lt. Governor of Delhi. In actual practice, a sentence has been remitted in the exercise of this power on the discovery of a mistake committed by the High Court in disposing of a criminal appeal.

From the foregoing it emerges that power of pardon; remission can be exercised upon discovery of an evident mistake in the judgment or undue harshness in the punishment imposed.

03. Legal Effects of Pardon Power:

However the legal effect of a pardon is wholly different from a judicial supersession of the original sentence. In Kehar Singh’s case this Hon’ble Court observed that in exercising the power under Article 72 “the President does not amend or modify or supersede the judicial record. … And this is so, notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him”. The President “acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it”. This ostensible incongruity is explained by Sutherland J. in United States v. Benz in these words: “The judicial power and the executive power over sentences are readily distinguishable. To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua a judgment”. According to the Report of the U.K.  Royal Commission pardon can be granted where the Home Secretary feels that despite the verdict of the jury there is a “scintilla of doubt” about the prisoner’s guilt.

Judicial decisions, legal text books, reports of Law Commission, academic writings and statements of administrators and people in public life reveal that the following considerations have been regarded as relevant and legitimate for the exercise of the power of pardon. Some of the illustrative considerations are: (a)  interest of society and the convict; (b) the period of imprisonment undergone and the remaining period; (c) seriousness and relative recentness of the offence; (d) the age of the prisoner and the reasonable expectation of his longevity;  (e) the health of the prisoner especially any serious illness from which he may be suffering; (f) good prison record; (g) post conviction conduct, character and reputation; (h) remorse and atonement; (i) deference to public opinion. It has occasionally been felt right to commute the sentence in deference to a widely spread or strong local expression of public opinion, on the ground that it would do more harm than good to carry out the sentence if the result was to arouse sympathy for the offender and hostility to the law It is necessary to keep in mind the salutary principle that:

“To shut up a man in prison longer than really necessary is not only bad for the man himself, but also it is a useless piece of cruelty, economically wasteful and a source of loss to the community.”

04. Introductory Remarks:

The power under Article 72 as also under Article 161 is of the widest amplitude and envisages myriad kinds and categories of cases with facts and situations varying from case to case. The exercise of power depends upon facts and circumstances of each case and the necessity or the justification for exercising that power has therefore to be judged from case to case. According to the Law Commission in its aforesaid report stated that it would not be desirable to attempt to lay down any rigid and exhaustive principles on which the sentence of death may be commuted. This Hon’ble Court in Kehar Singh’s case did not accept the petitioners contention that in order to prevent an arbitrary exercise of power under Article 72 this Court should draw up a set of guidelines for regulating the exercise of the power. The Court opined that specific guidelines need not be spelled out and it may not be possible to lay down any precise clearly defined and sufficiently channelized guidelines. It is respectfully submitted that in view of the passage of time since the ruling in Kehar Singh’s case and having regard to various instances of arbitrary exercise of power of pardon it is desirable that this Hon’ble Court should lay down broad principles or criteria to guide the exercise or non-exercise of the pardon power, it is submitted that though the circumstances and the criteria for exercise or non-exercise of pardon power may be of infinite variety one principle is well settled and admits of no doubt or debate, namely that the power of pardon “should be exercised on public considerations alone. An undue exercise of the pardoning power is greatly to be deplored. It is a blow at law and order and is an additional hardship upon society in its irrepressible conflict with crime and criminals”.

05. Constitutional position regarding exercise of pardon power:

This Hon’ble Court in the case of Maru Ram v . Union of India ruled that the President and the Governors in discharging the functions under Article 72 and Article 161 respectively must act not on their own judgment but in accordance with the aid and advice of the ministers. This legal position was re-affirmed by this Hon’ble Court in the case of Kehar Singh v. Union of India.  It was held in Maru Ram’s case that the constitutional power under Article 72 and Article 161 cannot be fettered by any statutory provision such as sections 432-433 and 433-A of the Criminal Procedure Code and the said power cannot be altered,  modified or interfered with in any manner whatsoever by any statutory provisions or prison rules.

06. Judicial review of exercise of pardon power under Articles 72 and 161:

It is well settled that the exercise or non-exercise of pardon power by the President or Governor is not immune from judicial review. Limited judicial review is available in certain cases.

(a) This Hon’ble Court in the case of Maru Ram, held that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guide-lines for fair and equal execution are guarantors of the valid play of power. It is noteworthy that this Hon’ble Court has in Kehar Singh’s case unequivocally rejected the contention of the Attorney General that the power of pardon can be exercised for political consideration. This Hon’ble Court in Maru Ram ruled that consideration of religion, caste, colour or political loyalty are totally irrelevant and fraught with discrimination.

(b) This Hon’ble Court in Kehar Singh’s case ruled that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined Maru Ram’s Case.  The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power is a matter for the court.

(c) It was also submitted on behalf of the Union of India, in Kehar Singh’s case, placing reliance on the doctrine of the division (separation) of powers,  that it was not open to the judiciary to scrutinize the exercise of the “mercy”  power. In dealing with this submission on behalf of the Union of India this Hon’ble Court held that the question as to the area of the President’s power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review.

(d) As regards the considerations to be applied to a petition for pardon/remission in Kehar Singh’s case this Hon’ble Court observed as follows : “As regards the considerations to be applied by the President to the petition, we need say nothing more as the law in this behalf has already been laid down by this Court in Maru Ram.”

(e) In the case of Swaran Singh v. State of U.P. after referring to the judgments in the cases of Maru Ram and Kehar Singh this Hon’ble Court held as follows: “We cannot accept the rigid contention of the learned counsel for the third respondent that this Court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercisedarbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it. In Swaran Singh’s case the one Doodh Nath was found guilty of murdering one Joginder Singh and was convicted to imprisonment for life. His appeals to the High Court and Special Leave Petition to the Supreme Court were unsuccessful. However, within a period of less than 2 years the Governor of Uttar Pradesh granted remission of the remaining long period of his life sentence. This Hon’ble Court quashed the said order of the Governor on the ground that when the Governor was not posted with material facts, the Governor was apparently deprived of the opportunity to exercise the powers in a fair and just manner. Conversely, on the impugned order  “fringes on arbitrariness” it was held that if the pardon power “was exercise arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism,  the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it”. The Court further observed that when the order of the Governor impugned in these proceedings is subject to judicial review within the strict parameters laid down in Maru Ram case and reiterated in Kehar Singh case: “we feel that the Governor shall reconsider the petition of Doodh Nath in the light of those materials which he had no occasion to know earlier.”, and left it open to the Governor of Uttar Pradesh to pass a fresh order in the light of the observations made by this Hon’ble Court.

(f) In the case of Satpal v. State of Haryana this Hon’ble Court observed that the power of granting pardon under Article 161 is very wide and does not contain any limitation as to the time on which and the occasion on which and the circumstances in which the said powers could be exercised. Thereafter the Court held as follows: “the said power being a constitutional power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor transgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in question is mala fide one or the Governor has passed the order on some extraneous consideration.” The principles of judicial review on the pardon power have been restated in the case of Bikas Chatterjee v. Union of India. X. It is submitted that on a proper reading of the aforesaid judgments of this Hon’ble Court it is clear that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds: (a) that the order has been passed without application of mind; (b) that the order is mala fide; (c)  the order has been passed on extraneous or wholly irrelevant considerations; (d) that the order suffers from arbitrariness. This Hon’ble Court in its decision in Government of A.P. v. M.T. Khan stated that if the government consider it expedient that the power of clemency be exercised in respect of a particular category of prisoners the government had full freedom to do so and also for excluding certain category of prisoners which it thought expedient to exclude. The Court further observed that “to extend the benefit of clemency to a given case or class of cases is a matter of policy and to do it for one or some, they need not do it for all, as long as there is no insidious discrimination involved”.

07. Judicial Review in Commonwealth Countries:

The Court of Appeal of New Zealand in the case of Burt v. Governor General held as follows: “it would be inconsistent with the contemporary approach to say that, merely because it is a pure and strict prerogative power, its exercise or non-exercise must be immune from curial challenge. There is nothing heterodox in asserting, as counsel for the appellant to, that the rule of law requires that challenge shall be permitted in so far as issues arise of a kind with which the Courts are competent to deal. … It is more a matter of a value or conceptual judgment as to the place in the law and the effectiveness or otherwise of the prerogative of mercy at the present day. In attempting such a judgment it must be right to exclude any lingering thought that the prerogative of mercy is no more than an arbitrary monarchial right of grace and favour. As developed it has become an integral element in the criminal justice system, a constitutional safeguard against mistakes”. The aforesaid judgment of the New Zealand High Court was referred to with the approval in the case of R v. Secretary of State, ex p Bentley. Dealing with the plea that the power of pardon is a royal prerogative of mercy and immune from judicial review, the Court of Appeal held that “it would be surprising and regrettable in our developed state of public law were the decision of the Home Secretary to be immune from legal challenge irrespective of the gravity of the legal errors which infected such a decision”. The Court further ruled that “the CCSU case made it clear that the powers of the court cannot be ousted merely by invoking the word ‘prerogative’. The Court of Appeal in England concluded that “the Home Secretary failed to recognise the fact that the prerogative of mercy is capable of being exercised in many different circumstances and over a wide range and therefore failed to consider the form of pardon which might be appropriate to meet the facts of the present case. Such a failure is, we think, reviewable”.

II.] THE ISSUES AND THEIR REPLIES

1. Whether it is open to rescind or cancel an order of pardon which has been granted on a basis which is subsequently found to be unfounded or which has been obtained by misrepresentation or fraud?

a. Articles 72 and 161 do not expressly provide for rescission or cancellation of an order of pardon. However, recourse can be had to section 14 and section 21 of the General Clauses Act, 1897, in appropriate cases. Section 14 and Section 21 of the General Clauses Act, are set out in these terms:

14. Powers conferred to be exercisable from time to time.— (1) where, by any Central Act or Regulation made after the commencement of this Act, any power is conferred then unless a different intention appears that power may be exercised from time to time as occasion requires. (2) This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January, 1887.

21.  Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-law— Where, by any Central Act or Regulation, a power to issue notifications orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.

b. The aforesaid rule of interpretation as embodied in section 14 and section 21 of the General Clauses Act, 1897, has been applied to the Constitution of India in S.V.G. Iyengar v. State of Mysore and Sampat Prakash v. State of J & K AIR.

In Sampat Prakash v. State of J & K it was held that: “This provision is clearly a rule of interpretation which has been made applicable to the Constitution in the same manner as it applied to any Central Act or Regulation.  On the face of it, the submission that section 21 cannot be applied to the interpretation of the Constitution will lead to anomalies which can only be avoided by holding that the rule laid down in this section is fully applicable to all provisions of the Constitution.” Reference is invited to the Division Bench Judgement of the Mysore High Court in S.V.G. Iyengar v. State of Mysore where it has been held that section 14 and section 21 of General Clauses Act, 1897,  by virtue of article 367 of Constitution apply to exercise of powers under the Constitution as well. “It is clear from the proviso to Article 309 that the rules which shall be effective until the appropriate Legislature makes a law are not only the rules made for the first time under that provision but include also those which are made from time to Page 16 time in the exercise of power conferred by S. 14 of the General Clauses Act, 1897 and also those rules as modified, amended or varied in the exercise of the power conferred by Sec. 21 of the General Clauses Act.” Accordingly, if subsequently it comes to the knowledge of the President or the Governor, i.e., the Central or State Government, that pardon has been obtained on the basis of a manifest mistake, or patent misrepresentation or fraud, the same can be rescinded and cancelled.

c. Attention is invited to section 432 of the Code of Criminal Procedure, 1973,  which lays down the consequence for non-fulfillment of any condition on which remission has been granted.

Section 432 (3): - (3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may, cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.

d. The position in U.S.A. is summed up as follows: “There is authority for the view that a pardon may be held void where it appears from the pardon that the pardoning power was misinformed; but there is also authority for the view that intentional falsehood or suppression of truth is necessary, and that misinformation given in good faith and in the belief in its truth is insufficient to avoid a pardon…..A pardon procured by false and fraudulent representations or by intentional suppression of the truth is void, even though the person pardoned had no part in perpetrating the fraud.”  It has often been broadly stated that a pardon obtained by fraud is void, as, for instance, where it may be reasonably inferred from the language of a pardon, considered in connection with the record of the cause in which it was granted, that the executive was deceived or imposed upon by those procuring it, by false statements or omissions to state relevant facts, or by the suppression of the fact that the judgment of conviction has been appealed from. Other courts, however, hold that the term “void” as thus used means simply that a pardon obtained by fraud may be declared to be void in a proceeding authorized by law, before a court having jurisdiction for the purpose, with ample opportunity to the person holding the pardon to defend.

2. Judicial review when no reasons are assigned for granting pardon

a. In Kehar Singh’s case this Hon’ble Court has made an observation at p. 216 that, “There is no question involved in this case of asking for reasons for the Presidents’ order”. It is respectfully submitted that this observation must be understood in the context of the contention that the petitioner or party must be given reasons. The question whether reasons can or cannot be disclosed to the Court when the order is challenged was not discussed. In any event, it is submitted that absence of obligation to convey reasons to the petitioner does not mean that there should not be legitimate and relevant reasons for passing the order.

b. Obligation to give reasons to a party is entirely different from obligation to apprise the Court about the reasons for the action when the action is challenged in court. This aspect was considered by this Hon’ble Court in the case of S.R. Bommai v. Unionof India, in the context of exercise of power under article 356 of the Constitution.

Attention is drawn to the observations of the judgment which are as follows: “When the Proclamation is challenged by making out a prima facie case with regard to its invalidity, the burden would be on the Union Government to satisfy that there exists material which showed that the government could not be carried on in accordance with the provision of the Constitution. Since such material would be exclusively within the knowledge of the Union Government, in view of the provision of Section 106 of the Evidence Act, the burden on proving the existence of such material would be on the Union Government.”

c. The position if the Government chooses not to disclose the reasons or the material for the impugned action was stated in the words of Lord Upjohn in the landmark decision in Padfield and Others v. Minister of Agriculture,

Fisheries and Food and Others “if he does not give any reason for his decision it may be, if circumstances warrant it, that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion..”

d. The same approach was adopted by Justice Rustam S. Sidhwa of the Lahore High Court in Muhammad Sharif v. Federation of Pakistan where the learned judge observed as follows: “I have no doubt that both the Governments are not compelled to disclose all the reasons they may have when dissolving the Assemblies under Articles 58 (2)(b) and 112(2)(b). If they do not choose to disclose all the material, but only some, it is their pigeon,  for the case will be decided on a judicial scrutiny of the limited material placed before the Court and if it happens to be totally irrelevant or extraneous, they must suffer.” Justice Sidhwa’s aforesaid observations have been approvingly referred to in the Supreme Court decision in S.R. Bommai’s case.

e. Justice Hansaria as a judge of the Gauhati High Court in the case of Vamuzzo v. Union of India adopted the approach of Justice Sidhwa. The learned judge gave time to the Government of India to inform the Court about the materials upon which the President’s Proclamation under article 356 was passed in the case of the State of Nagaland. The relevant portion of para 47 at p. 517 are set out below: “For this purpose we grant 10 days’ time. If the (sic) within this period they would fail to produce the material we shall have to render our opinion on the basis of the materials made available to us. If they would fail to do so, this Court would have no other alternative but to decide the matter on the basis of the materials placed before it. In this connection reference may be made to what was stated by Rustam Sidhwa J. in the aforesaid case of Lahore High Court. It may be mentioned that Justice Hansaria’s views were not shared by the other judge, Chief Justice A. Raghuvir. It is significant that Justice Hansaria’s view has been approved by this Hon’ble Court in S.R. Bommai,:

“Hansaria, J., however, took a contrary view. The learned Judge held that the material which formed part of ‘other information’ but has not been produced before the court, does not form part of the advice tendered by the Council of Ministers to the President. The court is, therefore, entitled to see the said material and for that purpose the Union of India must be given ten days’ time for producing the same. If, however, they decline to do so, the court would have no alternative but to act upon the present material and the Union of India will have to take consequences of such a course…..the view taken by Hansaria J. (as he then was) must be held to be the correct one and not the view taken by the learned Chief Justice.”

f. It could be thus observed that if the government chooses to maintain an inscrutable face of the sphinx in a case where the court on account of surrounding facts and circumstances is prima facie satisfied that impugned action is apparently not in conformity with the constitution, the burden shifts on the Government and if it fails to give reasons or disclose the material on which the impugned action is based, “it is their pigeon”. The court’s power of judicial review which is a basic feature of the Constitution cannot be incapacitated by a studied and deliberate silence on part of the government.

g. Article 74(2) does not debar disclosure of relevant material on which the order is based. See Bommai: “Article 74 (2) is not a bar against the scrutiny of the material on the basis of which the president had arrived at his satisfaction. “Article 74 (2) merely bars an enquiry into the question whether any and if so, what advice was tendered by the Ministers to the President. It does not bar the court from calling upon the Union Council of Ministers (Union of India) to disclose to the court the material upon which the President had formed the requisite satisfaction. The material on the basis of which advice was tendered does not become part of the advice. Even if the material is looked into by or shown to the President, it does not partake the character of advice.”

3. Scope of judicial review regarding power of remission

a. It could be observed that the grounds on which an executive decision under article 72 or article 161 can be challenged, have been authoritatively laid down in Maru Ram v. Union of India and Kehar Singh v. Union of India. In view of this settled legal position the contention that administrative law principles are inapplicable to exercise of powers under article 72 and article 161 is futile. b. It is submitted that the exercise of power of remission is subject to judicial review to the same extent and manner as exercise of the power of pardon. The contention that as remission is different from pardon. And therefore, different considerations ought to apply, is fallacious and would lead to an inconsistent application of constitutional provisions. Acceptance of this submission will permit the executive to grant a pardon in effect and substance under the guise of remission or reprieve. Such a contention should therefore be rejected.

4. Non–exercise of the power of pardon

a. Articles 72 and 161 confer a power or discretion coupled with duty and obligation. Public welfare and the welfare of the convict are guiding principles for the exercise of both the grant and non – grant of pardon.

b. If in a given case where public welfare and the welfare of the convict require, rather necessitate that pardon be given, non –grant of pardon would tantamount to failure to perform duty and obligation in article 72 and 161. For example, suppose if a convict has substantially served term of imprisonment, is of advanced age and is suffering from a critical illness and there is no material whatsoever, that if this convict is released, he will be a menace to society, then in such a situation, the non – grant of pardon would amount to a failure to perform duty and obligation in article 72 and 161.

c. It is well settled principle of law that when a capacity or power is given to a public authority there may be circumstances which couple the power with a duty to exercise it.

This statement of law was approved by the Supreme Court in The Chief Controlling Revenue Authority v. The Maharashtra Sugar Mills Limited. In a given case, the Government may not grant pardon, though it is eminently required for vindictive and political reasons. d. As pointed out in the main submissions, the Court of Appeal in New Zealand in Burt v. Governor General, held that non – exercise of power of pardon is not immune from judicial review.

CONCLUSION

In the conclusion of this project the researcher shall be classifying the principles, concepts and position of law discussed in the preceding chapters into two – one, which he is satisfied with and second, which he feels is not suitable. The researcher shall be giving reason for his stand and also suggest improvements in the system.

In the researcher’s opinion executive pardon is much needed. A miscarriage of justice by the courts has to be rectified by a non-judicial body because:

firstly, argument might not be legally valid but the rejection of the same might lead to injustice, secondly, the vesting of the power to pardon with executive makes the process of dispensing justice more rigorous. Punishment would require the consent of the head of state, which reaffirms that an innocent should not be punished. Thirdly, since the executive does not have a duty to interpret the law, it shall prevent wherever strict interpretation of the law is leading to the same. In the researcher’s view the Supreme Court has been correct in not framing guidelines for the exercise of mercy jurisdiction. If so happens, the exercise of the executive will become similar to judicial functions. Where an interpretation of the guideline sis to be done, it will be required with respect to every factual situation. An application for pardon before conviction should not be allowed because: firstly, they do not affect the purpose of mercy jurisdiction and secondly, through procedural fairness the scope of a bias is reduced.

There should be a time frame within which the executive should be asked to decide over cases in order to prevent undue truma to the application and his family members and back logging of cases. An amendment should be brought about in the constitution at the earliest barring the executive from pardoning its own members. Since, that is likely to create a bias, abusive of power and effectively make one a judge in his own cause.

BIBLIOGRAPHY

Articles

1) Balkrishna, “Presidential power of pardon”, 13 J.I.L.I.(1971) 103.

2) Braan C. Kalt, “Pardon me? The constitution case against presidential self –pardons”, 106 Yale Law journal 1996 779.

3) Harold J. Krent, “Conditioning the president’s conditional pardon”, 89 California Law Review 2001 1665.

4) Naveen Thakur, “President’s power to grant pardon in case of a death sentence. Whether it is to be unfettered Discretion?, 1999 Cri. LJ/Journal 101.

5) P.J. Dhan, “Justifiability of the president’s pardon power”

Books

1.) Ed. Robert Blackburn, “A Written constitution for the United Kingdom” (Maxwell: London, 1991)

2.) H. M. Seervai, Constitutional Law of India, Vol. 2, (N.M. Tripathi & Co.: Bombay, 1984)

3.) H.M. Marshall, Natural Justice (Delhi: Universal Law Publishing Co.), 1996

4.) Hellen and Cavin, Sourcebook on Public Law (Cavendish Publishing Company: London), 1997

5.) Mahendra P. Singh, V.N. Shukla’s Constitution of India (Eastern Book Company: Lucknow), 2001

6.) Roma Mukherjee, Woman, Law and Free Legal Aid (Deep and Deep Publications Pvt. Ltd.: New Delhi), 1998

7.) S.C. Jain, The Constitution of India: Select Issues and Perceptions (Taxmann: New Delhi), 2000

Encyclopedia:

1.) 59 Am Jur, 2^nd Ed., Pardon and Parole

2.) 67A C.J.S., Pardon and Parole

Reports: The Law Commission of India, Report on
Capital Punishment (1967), Vol.1 ,New Delhi.

Constituent
Assembly Debates, Vol.7, pages
1118-1120 and Vol. 10, page 389

Framing
of India’s Constitution : A Study, 2nd
Edition, Dr. Subhash C Kashyap, page D 367-371, page 397-399

Section 433, Code of Criminal
Procedure, 1973

59 American Jurisprudence, 2d, page 5

71 L. Ed. 1161 at 1163

1989 (1) SCC 204, p. 211

69 L. Ed. 527

1982 (1) SCC 417

Nar Singh v. State of Uttar Pradesh, AIR 1954 SC 457

Kehar Singh, supra n. 6 at 213

75 L. Ed. 354, p. 358

Law Commission Report, page 328, para 1071

As quoted in Burghess, J.C. in (1897), U.B.R. 330 (334)

Supra, n. 6, p. 217

59 American Jurisprudence 2d, page 11, para 13

1981 (1) SCC 107, p. 146, para 61

1989 (1) SCC 207 at 211

Supra, n. 16, p. 147, para 62

Supra, n. 6, para 12, pages 215-216

Supra, n.16 at, p. 150, para 65

Supra, n.6 at p. 216

1998 (4) SCC 75, p. 79, para 12

2000 (5) SCC 170, p. 174

2004 (7) SCC 634 at 637

2004 (1) SCC 616

1992 (3) NZLR 672

1993 (4) All ER 442

AIR 1961 Mysore 37

1970 SC 1118

59 American Jurisprudence 2d para 42 at p. 28

(1994) 3 SCC 1 p. 109, para (g), (h), p. 110, para (a)

(1968) 1 All E.R. 694, p. 719

PLD 1988 Lah 725, at p. 775, para 13

supra, at p. 98, paras (f) – (g)

(1988) Gauhati Law Journal 468, p. 517

Muhammad Sharif v. Federation of Pakistan PLD 1988 Lah 725

supra, see page 284, para (a) – (b) and (d)

supra, p. 148, para 153

Alcock Ashdown and Company Limited v. The Chief Revenue Authority AIR 1923 PC 138 at p. 144

AIR 1950 SC 218 at p. 221, para 8

[42] 1992 (3) NZLR 672

II. It is assumed that  the  most of the striking  under-trials’s cases are  pending in  Alipore Sessions Division and Calcutta Metropolitan Sessions Division. It is also certain that all of them have access to the service of very competent lawyers  either at own cost or at tax-payers’ cost . It is also  certain that all their cases are non- bailable  and bails have been refused by Judiciary after careful consideration. In these two sessions divisions, the number of criminal cases pending in the Sessions Courts, the courts of the ADJs, FTCs, Chief Judicial Magistrates, ACJMs, have been  tabulated in col 1 below. Column 2 shows the numbers of under trial prisoners  in the corresponding Jails as on 31.5.11 . Website of West Column 3 shows the number of  under trial  accused persons   who are on bail .

1) Alipore Sessions Div :

a. Pending  Criminal Cases - 7, 83,073 (out of this figure, CJM alone has 7,34,174 cases in his Court)

b. Number of under trial prisoners – 1188

c. Number of undertrial, accused persons who are out on bail. [clause ( a) minus (b)] - 7,81,885

2) Calcutta Metro Sessions Div :

a. Pending  Criminal Cases     -    1,083

b. Number of under trial prisoners - 1237

c. Number of undertrial, accused persons who are out on bail. [clause ( a) minus (b)] - No clear data available.

Note:    Cases  pending  in the above courts are assumed to be non-baliable.

III. First issue to brain-storm : Is it possible to  dispose these cases at all ? How may judicial- hours are needed to  dispose these lacs of cases  at trial courts ? One can sit with a calculator and find the answer . And  verdict this way or the other will not  end the lives of the cases. These will immediately get reborn at appellate courts.

IV. Second issue to brain-storm : ( Even assuming but not admitting that it is possible to do so ) is  it desirable to dispose the pending cases  and immediately  load these in the Appellate Courts?  e.g :  7 34 174 cases in the court of Hon’ble  CJM , Alipur after verdict one way or the other, will  immediately go and get settled in the Hon’ble Sessions Court , Alipur and Hon’ble High Court. Is it desirable  from the point of view of the judiciary ?

V. Third issue to brain-storm: Will quick disposal of the cases in trial court shall necessarily solve the problem of under trial prisoners ? Whichever under-trial prisoner  is convicted  will remain under trial prisoner if  the Courts do not grant bail  us 389 Cr. P.C like Sanjay Dutta  has been enjoying.

VI. Fourth issue to brain-storm: Do all the under trial persons, including lacs of those who are on bail  and those u/s 389 Cr. Pc who are convinced that they would be acquitted and  the State wont appeal, really desire quick disposal of their cases ? Those who are on bail  are enjoying full life, job, family life, profession,  pension, terminal benefit, promotion up to highest possible constitutional position  ( CVC ) and every  good  thing in life. No social stigma. Only a scientific survey will reveal whether these lacs  want or do not want  early disposal of their cases.

VII. Fifth issue to brain-storm :  Is it desirable , from the point of view of the Good Samaritans, to enlarge all the under trial prisoners on bail and to grant bail in every non-bailable case ? Websites show a substantial number of NGOs, including internationals, working for under trial prisoners. Keeping vigil is almost an industry.  It seems that they have no dearth of funds. We can assume that substantial number of employment generated by this vigil. If there is no under trial prisoners what these good souls shall do ?

VIII. Sixth issue to brain storm : Will any state, or the whole Indian state, can cope with  disposal of the cases ?  Let us assume that  7,83,000 cases pending in Alipur Sessions Division  are finally disposed. Finally, meaning no side goes to the Appellate Courts.  Let us assume that  400000 acquitted and  3,83, 000 convicted  to be jailed.  It means that the State Government will have to find  enough prison space to house these 3,83,000 persons.  Separate for males and females. Treatment at Super-speciality hospitals. Enough trained teachers to teach Tagore –Dance Drama . Enough number of  religious preachers for all faiths and sects. TV and other games. Library. College  facilities.  Engineering / Management teaching . Campus interview  ( like Tihar  Ashram ).  Good food. Special menu at Eid, Durga Puja, X-Mas. Under the vigil of NGOs. And of course, there will have to be sentries in good number, to prevent  non-convicted  persons  pretending to be  convicts and trying to sneak entries into the correctional homes ( Jails ) to enjoy good lives

IX. Final issue to brain-storm:   Is it violation of human rights to hold a person in prison without bail pending trial ? Several websites openly or  by implication  have been  asserting  that it is , indeed, violation. At least one  non-judicial officer of the West Bengal Government  has been  in this chorus.

X. The under trial prisoners, assisted by able lawyers at  own or tax-payers’ cost are denied bail by  wise judges, after  getting fully convinced against grant of bail.  To term these detentions as human rights violation , by implication , means that as per the chorus, our judges have been violating human rights. What else can be worse form of contempt of courts. And it is also moral intimidation of the wise judges. NGOs and other Samaritans positioning themselves above our judiciary !

XI. Human rights is a sacred fire. Only  a few  qualify  to carry this sacred fire. We also know the wide spread abuse of this fire in international politics. Countries are being  devastated   on the plea of protection  of  human rights.

 XII. We ignorant  barbaric Indians have a right to know the bench mark of dealing with arrested persons in the USA   ( where human rights  are at the best ):

XIII. Use of force to arrest,  handcuffing, searching, arrest of women after sunset up to sunrise,  arrest of  juveniles, quantum of bail bonds,  radio- banding at the ankles of  people released on bail,  standard of food , medical facilities,   clothing , beds. We ought to know also how convicts under hard labour are handled, separate running of sentences ( may be running upto a few hundred years ), solitary confinement, meaning of life imprisonments and so on. We Indian have  right to know our deviations so that  we can correct ourselves and become civilized in the eyes of the NGOs and not militarily devastated by  international protectors of human rights.

References :

· Number of strikers :  : Source : The Statesman Kolkata updated E- Copy 22.12.11

· Source Calcutta High Court Wesbsite..

· Source : Official Website of West Bengal  Correctional Services.

There is no universally acceptable definition for natural law. Generally, the common men believe that Natural Law is those rules and principles which evolved spontaneously, made by some supreme authority other than man, and everybody must obey these rules. Therefore, there is not any straight jacket formula to stipulate the definition of the natural law. However, the definition of the natural law can be traced in the thought of the philosophers and jurists of the ancient world.

EVOLUTION OF NATURAL LAW:

Evolution of the natural can be traced by through the various stages under the following head:

Ø Period of the Ancient Greeks

Ø Medieval period (Christian Ethics)

Ø Renaissance Period

Ø Revival of the Natural Law ( 20^th Century)

PERIOD OF THE ANCIENT GREEKS

Our survey of the evolution of legal philosophy should start with an account of the legal theory of the Greeks rather than that of some other nation, as the gift of the philosophical penetration of natural and social phenomena was possessed to an unusual degree by the intellectual leaders of ancient Greece and the Greek had become the philosophical teachers of the western world and Greek philosophy a microcosm of the world philosophy as a whole. The distinction between the laws made by man and laws which are in accordance with nature or of divine origin may be traced in the works of many Greek writers’ like Socrates, Plato and Aristotle.

It was in ancient Greece where the concept of human rights began to take a greater meaning than the prevention of arbitrary persecution. Human rights became synonymous with natural rights, rights that spring from natural law.

Though the Greeks were among the first to formulate ideas of natural law the Romans made more use of such theories and put their views along this line into more enduring forms. The first indications of the application of this concept are to be found in the work of the praetors.

Sophists:

The new movement was represented by the sophists. The term Sophist originally meant a wise and skilful man, but in the time we describing it came to be applied to the professional teachers who travelled about, giving instruction for pay in the art of thinking and speaking, and preparing the young men for political life. According to Cicero the Sophists brought philosophy down from heaven to the dwellings of men.

The great movement of the entire Sophistic movement consisted in this: it awakened thought and challenged philosophy, religion, custom, morals, and the institutions based on them, to justify themselves to reason. In denying the possibility of knowledge, the Sophists made it necessary for knowledge to justify itself.

Socrates (470 – 399 B.C.)

“Unexamined life is not worth living.” — Socrates

Socrates was the son of a sculptor and a midwife, Socrates himself never wrote any of his ideas down. One example of his effect on philosophy is found in the dialog Euthyphro.  He suggests that what is to be considered a good act is not good because gods say it is, but it is good because it is useful to us in our efforts to be better and happier people.  This means that ethics is no longer a matter of surveying the gods or scripture for what is good or bad, but rather thinking about life.  He even placed individual conscience above the law. The chief concern of the Socrates was to meet the challenges of Sophistry, which, in undermining knowledge, threatened the foundations of morality and the state.Socrates advocated man has capable to distinguish between good and bad on basis of his “Human Insight”. Socrates was a person who, did not deny the authority of the positive law , his decision to drink the poison as punishment awarded by authority shows, his respect for authority and his loyalty to the state he proved by obeying the laws himself and insisting that the others obey them.

Plato (427-347 B.C.) The great pupil of Socrates believed, morality should be based on the objective truth means, it should be independent from the human thought, and belief and it must be council with the objective truth to avoid the conflict. The logic of Plato is to control irrational desire of human being by rational thoughts. Plato’s Republic centers on a simple question: is it always better to be just than unjust?. Plato believed in universal truth and virtue. This idea has continued on to become universalism that human rights are universal, and as such are above the laws of individual states.

Aristotle (384 – 322 B.C.)

“Natural law as justice by the nature”

According to Aristotle, laws are of two kinds, particular and universal. The particular law is laid down by each community and is applied to its members. It is partly written, partly unwritten. The universal law is the law of the nature is binding on the all men, even those who have no association or covenant with each other. Written law often changes. The universal law does not change, since it is the law of the nature. In this way He distinguishes the legally just from the equitable. The equitable, for him, is superior to the legal. The equitable is the correction of legal justice.

According to Aristotle, man is a part of nature in two ways; firstly he is the part of the creature of the God, and secondly, he possesses insight the reason by which he can shape his will. By his reason man can discover the eternal principles of justice. The man’s reason being part of the nature, the law discovered by the reason called ‘natural justice’. He suggested that the ideas of the natural law have emanated from the human conscience and not by the human mind and, therefore, they are farmore valuable than positive law which is outcome of the human mind.

NATURAL LAW IN ROMAN SYSTEM

During the Roman period, there was three division of the law,i.e. Jus civile, Jus gentium, and jus natural, Jus civile was applicable only to Roman citizens and law which is applied on roman as well as foreigners called the Jus gentium. It consisted of the universal legal principles which conformed to natural law of reason. Later, both these were merged to be known as Jus natural.

Cicero

According to him “there is indeed a true law, right reason, agreeing with nature, diffused among all men, unchanging, everlasting, it is not allowed to alter this law, nor to derogate from it, nor can be repealed. We cannot release from this law, either by the praetor or by the people, nor is any person required to explain or interpret it. Nor it is one law at Rome and another at Athens, and there will be one common lord and ruler of all, even God the framer and proposer of this law.

NATURAL LAW IN MEDIEVAL PERIOD (CHRISTIAN ETHICS)

In the Middle Ages all Christians shared one common concept of the universe: that which has been laid down in the New Testament and in the teaching of the fathers of the Church. Legal philosophy, like all others branches of sciences and thinking, was dominated by the Church and its doctrines. A reference to “natural law” can be found in the epistle of Paul to the Romans, in which he speaks of a “law written in hearts”.

Perhaps the most important and influential among the fathers of the Church was St. Augustine. It was Augustine’s conviction that in golden age of mankind, prior to man’s fall an absolute ideal of the “law of nature” had been realized. Men lived in the state of holiness, innocence and justice; they were free and equal; slavery and other forms of dominion of men over other men were unknown. Augustine believed that the Church, as the guardian of the eternal law of God (lex aeterna),. It has unconditional sovereignty over the state. The state is only justified by enforcing the worldly law (lex temporalis). The worldly law, in Augustine’s opinion, must strive to fulfill the demands of the eternal law.

Thomas Aquinas (1224- 1274)

“Natural law as law of God”

Thomas, the son of Count Landolfo, of Aquino, was born 1225 or 1227 at the ancestral castle near Naples. He was pupil of Albert the Great. He was teacher of theology and philosophy at Cologne, Paris, Bologna, Rome and Naples, changing his residence frequently, and he devoted himself to the construction of the greatest Catholic system of thought, that has ever been offered. His fundamental aim is to demonstrate the rationality of the universe as a revelation of God.

Aquinas’s theory of natural law is articulated in his famous work “Summa Theologiae” Furthermore, these text are dependent structurally on Aquinas’s treatment of Aristotle’s moral theory in his Commentary on Nicomachean Ethics. According to Thomastic view

“natural law is a divine law, written in the hearts of all men, obliging them to do those things which are necessarily consonant to the rational nature of mankind, and to refrain from those things which are repugnant to it”.

THE THOMAS’S PHILOSOPHY OF LAW

The theology and the philosophy of medieval Catholicism reached its culmination in the monumental system of Thomism. St Thomas Aquinas was the greatest of the Scholastic philosophers of the middle Ages, and his teaching may still be regarded as an authoritative expression of the theological, philosophical, and ethical conviction of Roman Catholic. His system represented an ingenious synthesis of Christian scriptural dogma and Aristotelian philosophy.

Thomas Aquinas says, that basic human need such as self preservation requires fundamental human rights.

In order to understand his efforts, we must appreciate its historical context. During the dark period in Europe (After the collapse of the Roman empire, Western Europe lapsed into the so-called Dark Ages.) between the demise of the ancient civilization and the birth of the medieval order, the idea of natural law continued to prevail but the fathers of the Church, most notably Ambrose, Augustine, and Gregory, linked it with the Christian doctrine of original sin. Political society and the state became the institution of sin. A break from this thought began in the twelfth century. Therefore, the conflict between the spiritual lawgiving authority and secular lawgiving authority was to occupy Europe for centuries. During this conflict, both sides invoked natural law. The result was the Scholastic system of law most thoroughly formulated by St. Thomas Aquinas.

For Aquinas, there are two key features of the natural law, these are following:

a) God’s role as the giver of the natural law,

b) Human’s role as recipient of the natural law (rationality of human being).

So according to Aquinas from God’s-eye point of view, it is law through its place in the scheme of divine providence, and from the human’s-eye point of view, it constitutes a set of naturally binding and knowable precepts of practical reason.

Thomas Aquinas presents a hierarchical scheme of law, in which he defined that, divine law is supreme. This is so because the whole community of the universe is governed by divine reason. In which he mentioned that, not all of divine law is intelligible to man. The intelligible part reveals itself through eternal law, which is the incorporation of the divine wisdom, and the lex divina, which is the enactment of God as found in the Scripture. The hierarchy appears as follow Divine Law

Intelligible to man Not intelligible to man

Eternal Law Lex divina

Natural Law

Human Law

He distinguished between four different kinds of law: In which he mentioned divine law is the supreme:

a) Eternal law (Lex Aeterna)

b) Natural law (Lex Naturails)

c) Divine law (Lex Divina)

d) Human or Positive law (Lex Humana)

The first three kinds of law are interrelated conceptually within the ontological scheme of Aquinas proposes. The fourth, divine law refers to what Aquinas understood as ‘Revelation’, which is set of statement found in the Biblical texts. Put simply, the first three kinds of law are philosophical in nature, while divine law which must not be confused with eternal law- is theological in character.

Eternal law (Lex Aeterna):

Natural law is also the eternal law, as having existed from the commencement of the world, uncreated and immutable.

All the things subject to divine providence are ruled and measured by the eternal law. In its entirety it is known as only to God. No human being is capable of knowing it as it is.”But though no ordinary mortal can known the eternal law in its whole truth, he can have a partial notion of it, by means of the faculty of reason, which God has endowed him. This participation of the rational creature in the cosmic law is called natural law.

Natural law (Lex Naturails)

The natural law is merely an incomplete and imperfect reflection of the dictates of divine reason, but it enables man to know at least some of the principles of the lex aterna. Natural law directs the activities of the man by means of certain general precepts is that, “Good is to be done and evil to be avoided”. But what were are the criteria of that which is to be regarded as good and that which must be apprehended as evil? St. Thomas is convinced that the voice of reason in us (which enables us to obtain a glimpse of the eternal law) makes it possible for us to distinguish between morally good and bad action. According to his theory, those things for which man has a natural inclination must be apprehended as good and must be regarded as forming part of the natural law.

First, there is the natural human instinct of self-preservation, of which the law must take cognizance. Second, there exists the attraction between the sexes and the desires to rear and educate children .Third, man has a natural desire to know the truth about God, an inclination which derives him to shun ignorance. Fourth, man wishes to live in society, and it is therefore natural for him to avoid harming those among whom he has to live.

Divine law (Lex Divina)

Natural law, as a body of abstract principles, it is supplemented in directions from God as to how men should conduct their functions. This function is performed by the divine law. It is the law revealed by God through the Holy Scriptures and recorded in the old and new testaments.

Human or Positive law (Lex Humana)

It is defined by the Aquinas as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” Thus Aquinas, like Aristotle, incorporates the concept of reason into his definition of the law. In order that a governmental mandate may have the quality of law, it needs to comply with some postulate of reason. An unjust and unreasonable law, and one which is repugnant to the law of the nature, is not a law, but a perversion of law.

So according to his propositions, he defines law as an ordinance of reason for the common good, which is made by one who has care of the community, and which is promulgated.

There are four basic principles given by Thomas Aquinas, these are:

Ø Fundamental need

It includes food, health and physical security, which are the basic requirements of human beings, but not superior.

Ø Social co-ordination among community to achieve individual goal

According to this precept, there is requirement to fulfill the social needs of family, society and individual, which can only be possible through the greater co-operation of an individual. And nobody, would be able to fulfill their own individual needs on their own.

.

Ø Knowledge of truth for better understanding of himself/herself and God

This most important precept, upon which all the precepts are based, this precept facilitates achievement of truth, which leads to happiness.

Ø Is human law positive law?

This precept is based on the rationality of human being, which should be consistent with the divine law.

The association of ideas that causes natural law to be looked upon as “law” in the same sense as civil law has had three main consequences. In the first place, natural law, and its product “natural rights”, was conceived as having sufficient legal force to render void a human law that was repugnant to them.

Second place, the idea of natural law as a kind of law helped judges to alter the civil war.

In the third place, international lawyers seized upon the doctrine as seeming to give ‘legal’ efficacy to international law, which was supposed to conform to natural law.

The doctrine passed from Greek and Latin literature to the traditional jurisprudence of the Middle Ages.

According to Thomas Aquinas: Law is a rational and promulgated prescription for a common good made by one who has responsibility for the community whose good it is . the eternal law is God’s providence or plan for the world , and natural law is the way in which intelligent creature are subject to it. He gave some principles of the natural law the first one connotes “good is to be done, evil is to be avoided”. And the secondary principle is arises from the human tendencies towards the goods of the nature, and of rational animal nature.\

CRITICISM OF THOMAS AQUINAS:

There are some following criticisms of Aquinas’s theories made by some thinkers:

Thomas Aquinas never says that Augustine is wrong, but he was silent on the point of right to wage war. Furthermore, St. Anselm, the Catholic archbishop of Canterbury and a Doctor of the Church, criticized the theory of Aquinas’s by saying that, Thomas Aquinas has no evidence of existence of the God, except relying independence on human reason.

PERIOD OF RENAISSANCE:

Hugo Grotius (1583 – 1645)

Grotius built his legal theory on ‘social contract’. He departed from St. Thomas Aquinas scholastic concept of Natural Law and ‘reason’. He advocated on ‘right reason’, i.e. ‘self-supporting reason’ of man.

19TH CENTURY HOSTILITY TOWARDS NATURAL LAW

The profounder of analytical positivism, notably, Bentham and Austin rejected Natural Law on the ground that it was ambiguous and misleading. They preached that, there are no absolute and unchangeable principles. Priori methods of the natural law philosophers were unacceptable in the emerging age of science.

REVIVAL OF THE NATURAL LAW ( 20^th CENTURY)

Lon L. Fuller (1902- 1978)

In 20^th century legal thinkers Fuller rejected Christian doctrines of the Natural Law and 17^th and 18^th century rationalist doctrine of natural rights. He did not subscribe to a system of the absolute values. His principle affinity was, with Aristotle. He found a “family resemblance” in the various natural law theories, the search for the principles of social order. He believed that in all theories of natural law it was assumed that “the process of moral discovery is a social one and that there is something akin to a ‘celebrative articulation of shared purposes’ by which men come to understand better their own ends and to discern more clearly the means for achieving them.

CONCLUSION

As a theologian and philosopher Aquinas remained highly influential, through his philosophy. He emphasized human law must have a moral purpose to be valid: that immoral law is no law at all, and the rulers must act for the common good of the people. His classic argument was later used against absolutism and totalitarianism, and, indeed, against any illegitimate use of state power. He said, natural law does not mean what is chosen by human being, but it means what is given by the God. In his theories he argues that the Ten Commandments are basically sound rational moral principles derivable from analysis of the human nature. So last but not least there is some contribution made by Thomas Aquinas as follows.

Ø Thomas justified possession of individual property which was considered sinful by the early Christian Fathers.

Ø During the dark period in Europe, his theory “Natural law as law of God” Worked as dawn to remove this darkness.

Ø He demarcated human being from beasts on the basis of “Reason”.

Ø He incorporated the concept of “Common Good”, based on Benthamite concept, “Maximum happiness for maximum number of people”

Ø He denied the concept of arbitrariness and totalitarian concept by saying that law which is contrary to divine law cannot be become just law.

Ø He focused on two concept

God’s role as the giver of the natural law

The second is that, when we focus on the human’s role as recipient of the natural law

Aquinas concept denying the concept of arbitrariness and totalitarian and advocating the right to property stimulate the rule of law in consonance with human rights.

BIBLIOGRAPHY

BOOKS

Ø Anthonyj.Lisska, Aquinas’s Theory of Natural Law, Clarendon Press. Oxford (1997).

Ø Edgar Bodenheimer, Jurisprudence, The Philosophy and Method of the Law, Delhi: Universal Publication, (2001).

Ø Frank Thilly, A History of Philosophy, New Delhi: SBW publishers (1993).

Ø Salmond P.28, 29. [1] Sir John Salmond, Jurisprudence, 10th ed. London: Sweet and Maxwell Limited (1947).

Ø Surya Prakash Sinha, Jurisprudence Legal Philosophy in Nutshell, St. Paul. Minn west publishing Co. (1993).

DICTIONARY

Ø Black’s Law Dictionary, 8^th edition, Bryan A. Garner (editor in chief).

Ø New Oxford Advanced Learner’s 7^th edition, Sally Wehmeier 2005.

ENCYCLOPEDIA

Ø Mark Bevir, encyclopedia of political Theory, Vol.1, University of California, Berkeley.

WEB SOURCES

Ø legalservicesindia.com/article/article/natural-law-519-1.htm (visited on November 24, 2011).

Ø plato.stanford.edu/entries/natural-law-ethics (visited on November 21, 2011).

Ø webspace.ship.edu/cgboer/athenians.html - United States. (Visited on November 20, 2011).

Ø www.webspace.ship.edu/cgboer/athenians.html (Visited on November 20, 2011).

Ø www.constitution.org/haines/haines_001.htm (visited on November 20, 2011).

Ø www.library.thinkquest.org/C0126065/hrhistory.html (visited on November 22, 2011).

Ø www.saintaquinas.com/philosophy.html (Visited on November 18, 2011).

O body swayed to music, O brightening glance How can we know the dancer from the dance? —William B. Yeats, Among School Children (1927)

The word ‘choreography’ is derived from the Greek word choreia meaning ‘dance’ and grafos meaning ‘to record’. In contemporary usage, choreography has come to mean dance embodying artistic creation, beauty or emotion, created primarily for the pleasure of the observer.

Whether it be USA or India, both States ignored the muse of dancing (in Greek mythology), Terpischore for a long time. Indian Copyright Act was enacted in 1957 to rectify the long inflicted wrong on producers of choreographic works. It was in 1909 in USA when choreographic works were entitled to protection under copyright law.

In USA, choreographic works (which were not communicating a story) have been copyrightable since January 1, 1978, the date when the Copyright Act of 1976 came into operation. Previously, some choreographic works had been eligible for copyright, but only under the class of dramatic works. In India, however, choreographic works are still protected under the category of dramatic works.

Although several choreographers have registered their copyrights in the past fifteen years under the new Copyright Law, only one case for the infringement of a copyrighted choreographic work has reached the Federal courts. In the 1986 decision of, Horgan v. MacMillan, Inc., the U.S. Court of Appeals for the Second Circuit, considered for the first time, several significant issues regarding the copyright of choreographic works. As the Court noted,

Explicit federal copyright protection for choreography is a fairly recent development, and the scope of that protection is an uncharted area of the law.

In India, there has been no case law which can be of assistance in defining what kind of choreographic works are entitled to protection under the Copyright Act of 1957.

There are many differences between the copyright legislation in USA and India in relation to choreography.

The core argument of the researcher is that Indian copyright law suffers from many fallacies in regard to choreographers’ rights. Presence of several inadequacies make it extremely difficult, if not impossible for Indian choreographers to get the same protection as authors of literary, musical or dramatic (implying dramas) works receive. Indian Copyright Act, 1957 does need major amendments in order to serve its purpose of protecting choreographers from infringement.

               The exclusive right of public performance is expanded to include not only motion pictures, including works recorded on film, video tape, and video disks, but also audiovisual works such as filmstrips and sets of slides. 

        Right of Public Display.--Clause (5) of section 106 represents the first explicit statutory recognition in American copyright law of an exclusive right to show a copyrighted work, or an image of it, to the public. The existence or extent of this right under the present statute is uncertain and subject to challenge. The Act gives the owners of copyright in choreographic works including the individual images of a motion picture or other audiovisual work, the exclusive right ``to display the copyrighted work publicly.'' This provision, along with Section 102(a) made it possible for Barbara Horgan to successfully sue MacMillan publishers for infringement of Balanchine’s Nutcracker. The Court held that publishing unauthorised pictures of Nutcracker amounted to infringement.

Analysis and Conclusion

The problem which choreographic works face is the requirement mentioned in the Copyright Act of 1976- work has to be in fixed form. Unlike literary composition, dance is rarely created in written form. Choreographers create dance movements by directing dancers across the floor. They rely on others to record their compositions, which increases the threat of piracy. Leslie Wallis, a legal commentator has even written that dance should receive novel treatment as it is very different from literary work or dramatic work, being non-verbal in nature, though entailing emotions. Means of recording choreographic works are still in their infancy and highly expensive and difficult to arrange. The most significant characteristic of such forms of recording dance is that they provide inaccurate descriptions of the work they seek to protect.

Section 101 of the Copyright Act, 1976 states that choreographers must record their work in a tangible medium of expression which is sufficiently permanent. Dance groups lack funds to meet this statutory requirement, also the means arranged by them do not suffice. Another important factor is that the means of recording should serve a key piece of evidence in case of infringement.

However, Laura Cramer, a former fundraiser for many dance companies in USA, argues that the American copyright legislation is not as flawed as it seems. Computer technology is the answer to reducing choreography to tangible form. Notation is highly expensive and complicated. To notate twenty minutes of dance, a choreographer will have to spend $10,000 which is highly impractical. On the other hand, a videotape can be made for $175. Nevertheless, notation is unparalleled is exactitude. A videotape records mistakes and the only means to rectify the error is to make a new videotape which is financially impractical. Therefore, computerized choreography comes to succour. Merce Cunningham, was the first choreographer to use computer technology to record his dance piece. She further asserts that despite the choreographic community’s ambivalence towards computer technology, it is the best means to record dance.

Another shortcoming of the 1976 Act is that the word ‘choreographic work’ has not been defined and the lawyers and the Judges have to look at the House and Senate reports for guidance while arguing and deciding a case respectively.

Choreography and copyright issues in India are at a nascent stage. The author again reiterates that there is an urgent need for defining choreographic work. Furthermore, there is a need for including ‘choreographic work’ in Section 13 of the Copyright Act, 1957. There exist no House reports in India, unlike in USA which can be looked into by the Court while deciding a case of copyright infringement regarding choreography.

Thus, there maybe existing minor flaws in the 1976 Act but in the Indian Copyright Act, 1957 there exist major shortcomings which lead to cessation of economic as well as moral incentive for choreographers. This also leads to violation of their right to equality as their counterparts (authors of literary, dramatic works) get due protection but they are denied the same treatment. Hence, there is an immediate need for amendment in the Indian Copyright Act, 1957.

Bibliography

Books referred:

· horst koegler, the concise oxford dictionary of ballet, 122(1982).

Available at: http://www.csulb.edu/~jvancamp/copyrigh.html#copyright (last visited on 3rd October, 2011).

· thomas bulfinch, bulfinch’s mythology, 12(1966).

Available at: http://www.heinonline.org/ (last visited on 2^nd October, 2011).

Articles referred:

· anne weinhardt, copyright infringment of choreography: the legal aspects of fixation, 13 j. corp. l. (1987-88), 846.

Available at: http://www.heinonline.org/ (last visited on 2^nd October, 2011).

· Deborah Jowitt, Rebel Turned Classicist, the new york times,10^th march, 1974.

Available at: http://www.csulb.edu/~jvancamp/copyrigh.html#copyright (last visited on 3rd October, 2011).

· Julie Van Camp, Copyright of Choreographic Works in stephen breimer, et al. (eds.), entertainment, publishing and the arts handbook, 59-92(1994).

Available at: http://www.csulb.edu/~jvancamp/copyrigh.html#copyright (last visited on 1^st October, 2011).

· lauren cramer, copyright protection for choreography: can it ever be en pointe- computerized choreography or amendment: Practical problems of the 1976 us copyright act choreography,1 syracuse j. legis & pol’y 151 (995)

Available at: http://www.heinonline.org/ (last visited on 3rd October, 2011).

· leslie erin wallis, different art: choreography and copyright, the comment, 33 ucla l.rev. (1985-86), 1443-1447.

Available at: http://www.heinonline.org/ (last visited on 3rd October, 2011).

· martha m. traylor, choreography, pantomime and the copyright revision act of 1976, 16 new eng.l. rev. (1980-81), 231.

Available at: http://www.heinonline.org/ (last visited on 2^nd October, 2011).

Reports referred:

· Senate Report. No. 473, 94th Cong., 1st Session 52 (1975)

Websites referred:

· http://www.copyright.gov/title17/circ92.pdf (last visited on 2nd October, 2011).

· http://www.indiankanoon.org/ (last visited on 3^rd October, 2011)

· http://www.law.justia.com (last visited on 3^rd October, 2011).

Before evaluating the concept of cyber crime it is obvious that the concept of conventional crime be discussed and the points of similarity and deviance between both these forms may be discussed.

CONVENTIONAL CRIME-

Crime is a social and economic phenomenon and is as old as the human society. Crime is a legal concept and has the sanction of the law. Crime or an offence is “a legal wrong that can be followed by criminal proceedings which may result into punishment.” The hallmark of criminality is that, it is breach of the criminal law. Per Lord Atkin “the criminal quality of an act cannot be discovered by reference to any standard but one: is the act prohibited with penal consequences”.

A crime may be said to be any conduct accompanied by act or omission prohibited by law and consequential breach of which is visited by penal consequences.

CYBER CRIME

Cyber crime is the latest and perhaps the most complicated problem in the cyber world. “Cyber crime may be said to be those species, of which, genus is the conventional crime, and where either the computer is an object or subject of the conduct constituting crime”. “Any criminal activity that uses a computer either as an instrumentality, target or a means for perpetuating further crimes comes within the ambit of cyber crime”

A generalized definition of cyber crime may be “ unlawful acts wherein the computer is either a tool or target or both”(3) The computer may be used as a tool in the following kinds of activity- financial crimes, sale of illegal articles, pornography, online gambling, intellectual property crime, e-mail spoofing, forgery, cyber defamation, cyber stalking. The computer may however be target for unlawful acts in the following cases- unauthorized access to computer/ computer system/ computer networks, theft of information contained in the electronic form, e-mail bombing, data didling, salami attacks, logic bombs, Trojan attacks, internet time thefts, web jacking, theft of computer system, physically damaging the computer system.

DISTINCTION BETWEEN CONVENTIONAL AND CYBER CRIME-

There is apparently no distinction between cyber and conventional crime. However on a deep introspection we may say that there exists a fine line of demarcation between the conventional and cyber crime, which is appreciable. The demarcation lies in the involvement of the medium in cases of cyber crime. The sine qua non for cyber crime is that there should be an involvement, at any stage, of the virtual cyber medium.

REASONS FOR CYBER CRIME:

Hart in his work “ The Concept of Law” has said ‘human beings are vulnerable so rule of law is required to protect them’. Applying this to the cyberspace we may say that computers are vulnerable so rule of law is required to protect and safeguard them against cyber crime. The reasons for the vulnerability of computers may be said to be:

<!–[if !supportLists]–>1. <!–[endif]–>Capacity to store data in comparatively small space-

The computer has unique characteristic of storing data in a very small space. This affords to remove or derive information either through physical or virtual medium makes it much more easier.

1. Easy to access-

The problem encountered in guarding a computer system from unauthorised access is that there is every possibility of breach not due to human error but due to the complex technology. By secretly implanted logic bomb, key loggers that can steal access codes, advanced voice recorders; retina imagers etc. that can fool biometric systems and bypass firewalls can be utilized to get past many a security system.

3.Complex-

The computers work on operating systems and these operating systems in turn are composed of millions of codes. Human mind is fallible and it is not possible that there might not be a lapse at any stage. The cyber criminals take advantage of these lacunas and penetrate into the computer system.

4.Negligence-

Negligence is very closely connected with human conduct. It is therefore very probable that while protecting the computer system there might be any negligence, which in turn provides a cyber criminal to gain access and control over the computer system.

5. Loss of evidence-

Loss of evidence is a very common & obvious problem as all the data are routinely destroyed. Further collection of data outside the territorial extent also paralyses this system of crime investigation.

CYBER CRIMINALS:

The cyber criminals constitute of various groups/ category. This division may be justified on the basis of the object that they have in their mind. The following are the category of cyber criminals-

1. Children and adolescents between the age group of 6 – 18 years –

The simple reason for this type of delinquent behaviour pattern in children is seen mostly due to the inquisitiveness to know and explore the things.  Other cognate reason may be to prove themselves to be outstanding amongst other children in their group. Further the reasons may be psychological even. E.g. the Bal Bharati (Delhi) case was the outcome of harassment of the delinquent by his friends.

2. Organised hackers-

These kinds of hackers are mostly organised together to fulfil certain objective. The reason may be to fulfil their political bias, fundamentalism, etc. The Pakistanis are said to be one of the best quality hackers in the world. They mainly target the Indian government sites with the purpose to fulfil their political objectives. Further the NASA as well as the Microsoft sites is always under attack by the hackers.

3.      Professional hackers / crackers –

Their work is motivated by the colour of money. These kinds of hackers are mostly employed to hack the site of the rivals and get credible, reliable and valuable information. Further they are ven employed to crack the system of the employer basically as a measure to make it safer by detecting the loopholes.

4.       Discontented employees-

This group include those people who have been either sacked by their employer or are dissatisfied with their employer. To avenge they normally hack the system of their employee.

MODE AND MANNER OF COMMITING CYBER CRIME:

1. Unauthorized access to computer systems or networks / Hacking-

This kind of offence is normally referred as hacking in the generic sense. However the framers of the information technology act 2000 have no where used this term so to avoid any confusion we would not interchangeably use the word hacking for ‘unauthorized access’ as the latter has wide connotation.

1. Theft of information contained in electronic form-

This includes information stored in computer hard disks, removable storage media etc.  Theft may be either by appropriating the data physically or by tampering them through the virtual medium.

1. Email bombing-

This kind of activity refers to sending large numbers of mail to the victim, which may be an individual or a company or even mail servers there by ultimately resulting into crashing.

1. Data diddling-

This kind of an attack involves altering raw data just before a computer processes it and then changing it back after the processing is completed. The electricity board faced similar problem of data diddling while the department was being computerised.

1. Salami attacks-

This kind of crime is normally prevalent in the financial institutions or for the purpose of committing financial crimes. An important feature of this type of offence is that the alteration is so small that it would normally go unnoticed. E.g. the Ziegler case wherein a logic bomb was introduced in the bank’s system, which deducted 10 cents from every account and deposited it in a particular account.

1. Denial of Service attack-

The computer of the victim is flooded with more requests than it can handle which cause it to crash. Distributed Denial of Service (DDoS) attack is also a type of denial of service attack, in which the offenders are wide in number and widespread. E.g. Amazon, Yahoo.

7.    Virus / worm attacks-

Viruses are programs that attach themselves to a computer or a file and then circulate themselves to other files and to other computers on a network. They usually affect the data on a computer, either by altering or deleting it. Worms, unlike viruses do not need the host to attach themselves to. They merely make functional copies of themselves and do this repeatedly till they eat up all the available space on a computer’s memory. E.g. love bug virus, which affected at least 5 % of the computers of the globe. The losses were accounted to be $ 10 million. The world’s most famous worm was the Internet worm let loose on the Internet by Robert Morris sometime in 1988.  Almost brought development of Internet to a complete halt.

8.     Logic bombs-

These are event dependent programs. This implies that these programs are created to do something only when a certain event (known as a trigger event) occurs. E.g. even some viruses may be termed logic bombs because they lie dormant all through the year and become active only on a particular date (like the Chernobyl virus).

9.  Trojan attacks-

This term has its origin in the word ‘Trojan horse’. In software field this means an unauthorized programme, which passively gains control over another’s system by representing itself as an authorised programme. The most common form of installing a Trojan is through e-mail. E.g. a Trojan was installed in the computer of a lady film director in the U.S. while chatting. The cyber criminal through the web cam installed in the computer obtained her nude photographs. He further harassed this lady.

1. Internet time thefts-

Normally in these kinds of thefts the Internet surfing hours of the victim are used up by another person. This is done by gaining access to the login ID and the password. E.g. Colonel Bajwa’s case- the Internet hours were used up by any other person. This was perhaps one of the first reported cases related to cyber crime in India. However this case made the police infamous as to their lack of understanding of the nature of cyber crime.

11. Web jacking-

This term is derived from the term hi jacking. In these kinds of offences the hacker gains access and control over the web site of another. He may even mutilate or change the information on the site. This may be done for fulfilling political objectives or for money. E.g. recently the site of MIT (Ministry of Information Technology) was hacked by the Pakistani hackers and some obscene matter was placed therein. Further the site of Bombay crime branch was also web jacked. Another case of web jacking is that of the ‘gold fish’ case. In this case the site was hacked and the information pertaining to gold fish was changed. Further a ransom of US $ 1 million was demanded as ransom. Thus web jacking is a process where by control over the site of another is made backed by some consideration for it.

CLASSIFICATION:

1. Against Individuals

atheir person &
b. their property of an individual

2. Against Organization

3. Against Society at large

Against Individuals: –

i. Harassment via e-mails.
ii. Cyber-stalking.
iii. Dissemination of obscene material.
iv. Defamation.
v. Unauthorized control/access over computer system.
vi. Indecent exposure
vii. Email spoofing
viii. Cheating & Fraud

Against Individual Property: -

i. Computer vandalism.
ii. Transmitting virus.
iii. Netrespass
iv. Unauthorized control/access over computer system.
v. Intellectual Property crimes
vi. Internet time thefts

Against Organization: -

i. Unauthorized control/access over computer system
ii. Possession of unauthorized information.
iii. Cyber terrorism against the government organization.
iv. Distribution of pirated software etc.

Against Society at large: -

i.     Pornography (basically child pornography).
ii.    Polluting the youth through indecent exposure.
iii.   Trafficking
iv. Financial crimes
v.Sale of illegal articles
vi.Online gambling
vii. Forgery

The above mentioned offences may discussed in brief as follows:

1.       Harassment via e-mails-

Harassment through e-mails is not a new concept. It is very similar to harassing through letters. Recently I had received a mail from a lady wherein she complained about the same. Her former boy friend was sending her mails constantly sometimes emotionally blackmailing her and also threatening her. This is a very common type of harassment via e-mails.

2. Cyber-stalking-

The Oxford dictionary defines stalking as “pursuing stealthily”. Cyber stalking   involves following a person’s movements across the Internet by posting messages (sometimes threatening) on the bulletin boards frequented by the victim, entering the chat-rooms frequented by the victim, constantly bombarding the victim with emails etc.

3.       Dissemination of obscene material/ Indecent exposure/ Pornography (basically child pornography) / Polluting through indecent exposure-

Pornography on the net may take various forms. It may include the hosting of web site containing these prohibited materials. Use of computers for producing these obscene materials. Downloading through the Internet, obscene materials. These obscene matters may cause harm to the mind of the adolescent and tend to deprave or corrupt their mind. Two known cases of pornography are the Delhi Bal Bharati case and the Bombay case wherein two Swiss couple used to force the slum children for obscene photographs. The Mumbai police later arrested them.

4.   Defamation

It is an act of imputing any person with intent to lower the person in the estimation of the right-thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule. Cyber defamation is not different from conventional defamation except the involvement of a virtual medium. E.g. the mail account of Rohit was hacked and some mails were sent from his account to some of his batch mates regarding his affair with a girl with intent to defame him.

4.      Unauthorized control/access over computer system-

This activity is commonly referred to as hacking. The Indian law has however given a different connotation to the term hacking, so we will not use the term “unauthorized access” interchangeably with the term “hacking” to prevent confusion as the term used in the Act of 2000 is much wider than hacking.

5.      E mail spoofing-

A spoofed e-mail may be said to be one, which misrepresents its origin. It shows it’s origin to be different from which actually it originates. Recently spoofed mails were sent on the name of Mr. Na.Vijayashankar (naavi.org), which contained virus.

Rajesh Manyar, a graduate student at Purdue University in Indiana, was arrested for threatening to detonate a nuclear device in the college campus. The alleged e- mail was sent from the account of another student to the vice president for student services. However the mail was traced to be sent from the account of Rajesh Manyar.

6.   Computer vandalism-

Vandalism means deliberately destroying or damaging property of another. Thus computer vandalism may include within its purview any kind of physical harm done to the computer of any person. These acts may take the form of the theft of a computer, some part of a computer or a peripheral attached to the computer or by physically damaging a computer or its peripherals.

7.  Transmitting virus/worms-

This topic has been adequately dealt herein above.

8.  Intellectual Property crimes / Distribution of pirated software-

Intellectual property consists of a bundle of rights. Any unlawful act by which the owner is deprived completely or partially of his rights is an offence. The common form of IPR violation may be said to be software piracy, copyright infringement, trademark and service mark violation, theft of computer source code, etc.

The Hyderabad Court has in a land mark judgement has convicted three people and sentenced them to six months imprisonment and fine of 50,000 each for unauthorized copying and sell of pirated software.

9.  Cyber terrorism against the government organization

At this juncture a necessity may be felt that what is the need to distinguish between cyber terrorism and cyber crime. Both are criminal acts. However there is a compelling need to distinguish between both these crimes. A cyber crime is generally a domestic issue, which may have international consequences, however cyber terrorism is a global concern, which has domestic as well as international consequences. The common form of these terrorist attacks on the Internet is by distributed denial of service attacks, hate websites and hate emails, attacks on sensitive computer networks, etc.  Technology savvy terrorists are using 512-bit encryption, which is next to impossible to decrypt. The recent example may be cited of – Osama Bin Laden, the LTTE, attack on America’s army deployment system during Iraq war.

Cyber terrorism may be defined to be “ the premeditated use of disruptive activities, or the threat thereof, in cyber space, with the intention to further social, ideological, religious, political or similar objectives, or to intimidate any person in furtherance of such objectives”

Another definition may be attempted to cover within its ambit every act of cyber terrorism.

A terrorist means a person who indulges in wanton killing of persons or in violence or in disruption of services or means of communications essential to the community or in damaging property with the view to –

(1) putting the public or any section of the public in fear; or

(2) affecting adversely the harmony between different religious, racial, language or regional groups or castes or communities; or

(3) coercing or overawing the government established by law; or

(4) endangering the sovereignty and integrity of the nation

and a cyber terrorist is the person who uses the computer system as a means or ends to achieve the above objectives. Every act done in pursuance thereof is an act of cyber terrorism.

10.Trafficking

Trafficking may assume different forms. It may be trafficking in drugs, human beings, arms weapons etc. These forms of trafficking are going unchecked because they are carried on under pseudonyms. A racket was busted in Chennai where drugs were being sold under the pseudonym of honey.

1. Fraud & Cheating

Online fraud and cheating is one of the most lucrative businesses that are growing today in the cyber space. It may assume different forms. Some of the cases of online fraud and cheating that have come to light are those pertaining to credit card crimes, contractual crimes, offering jobs, etc.

Recently the Court of Metropolitan Magistrate Delhi (17) found guilty a 24-year-old engineer working in a call centre, of fraudulently gaining the details of Campa’s credit card and bought a television and a cordless phone from Sony website. Metropolitan magistrate Gulshan Kumar convicted Azim for cheating under IPC, but did not send him to jail. Instead, Azim was asked to furnish a personal bond of Rs 20,000, and was released on a year’s probation.

STATUTORY PROVISONS:

The Indian parliament considered it necessary to give effect to the resolution by which the General Assembly adopted Model Law on Electronic Commerce adopted by the United Nations Commission on Trade Law. As a consequence of which the Information Technology Act 2000 was passed and enforced on 17th May 2000.the preamble of this Act states its objective to legalise e-commerce and further amend the Indian Penal Code 1860, the Indian Evidence Act 1872, the Banker’s Book Evidence Act1891 and the Reserve Bank of India Act 1934. The basic purpose to incorporate the changes in these Acts is to make them compatible with the Act of 2000. So that they may regulate and control the affairs of the cyber world in an effective manner.

The Information Technology Act deals with the various cyber crimes in chapters IX & XI. The important sections are Ss. 43,65,66,67. Section 43 in particular deals with the unauthorised access, unauthorised downloading, virus attacks or any contaminant, causes damage, disruption, denial of access, interference with the service availed by a person. This section provide for a fine up to Rs. 1 Crore by way of remedy. Section 65 deals with ‘tampering with computer source documents’ and provides for imprisonment up to 3 years or fine, which may extend up to 2 years or both. Section 66 deals with ‘hacking with computer system’ and provides for imprisonment up to 3 years or fine, which may extend up to 2 years or both. Further section 67 deals with publication of obscene material and provides for imprisonment up to a term of 10 years and also with fine up to Rs. 2 lakhs.

ANALYSIS OF THE STATUTORY PROVISONS:

The Information Technology Act 2000 was undoubtedly a welcome step at a time when there was no legislation on this specialised field. The Act has however during its application has proved to be inadequate to a certain extent. The various loopholes in the Act are-

1. The hurry in which the legislation was passed, without sufficient public debate, did not   really serve the desired purpose (6)-

Experts are of the opinion that one of the reasons for the inadequacy of the legislation has been the hurry in which it was passed by the parliament and it is also a fact that sufficient time was not given for public debate.

2. “Cyberlaws, in their very preamble and aim, state that they are targeted at aiding e-commerce, and are not meant to regulate cybercrime”(6) –

Mr. Pavan Duggal holds the opinion that the main intention of the legislators has been to provide for a law to regulate the e-commerce and with that aim the I.T.Act 2000 was passed, which also is one of the reasons for its inadequacy to deal with cases of cyber crime.

At this point I would like to express my respectful dissent with Mr. Duggal. I feel that the above statement by Mr. Duggal is not fundamentally correct. The reason being that the preamble does state that the Act aims at legalising e-commerce. However it does not stop here. It further amends the I.P.C., Evidence Act, Banker’s Book Evidence and RBI Act also. The Act also aims to deal with all matters connected therewith or incidental thereto.  It is a cardinal rule of interpretation that “text should be read as a whole to gather the meaning”. It seems that the above statement has been made in total disregard of this rule of interpretation. The preamble, if read as a whole, makes it very clear that the Act equally aims at legalising e-commerce and to curb any offences arising there from.

3.Cyber torts-

The recent cases including Cyber stalking cyber harassment, cyber nuisance, and cyber defamation have shown that the I.T.Act 2000 has not dealt with those offences. Further it is also contended that in future new forms of cyber crime will emerge which even need to be   taken care of. Therefore India should sign the cyber crime convention. However the I.T.Act 2000 read with the Penal Code is capable of dealing with these felonies.

4.Cyber crime in the Act is neither comprehensive nor exhaustive-

Mr. Duggal believes that we need dedicated legislation on cyber crime that can supplement the Indian Penal Code. The contemporary view is held by Mr. Prathamesh Popat who has stated- “The IT Act, 2000 is not comprehensive enough and doesn’t even define the term ‘cyber crime”. Mr. Duggal has further commented, “India, as a nation, has to cope with an urgent need to regulate and punish those committing cyber crimes, but with no specific provisions to do so. Supporters of the Indian Penal Code School vehemently argue that IPC has stood the test of time and that it is not necessary to incorporate any special laws on cyber crime. This is because it is debated by them that the IPC alone is sufficient for all kinds of crime. However, in practical terms, the argument does not have appropriate backing. It has to be distinctly understood that cyber crime and cyberspace are completely new whelms, where numerous new possibilities and opportunities emerge by the day in the form of new kinds of crimes.

I feel that a new legislation on cyber crime is totally unwarranted. The reason is that the new legislation not come alone but will bring with it the same confusion, the same dissatisfaction and the same desire to supplant it by further new legislation. Mr. Duggal has stated above the need to supplement IPC by a new legislation. If that is the issue then the present legislation along with the Penal Code when read harmoniously and co- jointly is sufficient to deal with the present problems of cyber crime. Further there are other legislations to deal with the intellectual property crimes on the cyber space such as the Patents Act, Copy Right Act, Trade Marks Act.

5.Ambiguity in the definitions-

The definition of hacking provided in section 66 of the Act is very wide and capable of misapplication. There is every possibility of this section being misapplied and in fact the Delhi court has misapplied it. The infamous go2nextjob has made it very clear that what may be the fate of a person who is booked under section 66 or the constant threat under which the netizens are till s. 66 exists in its present form.

Further section 67 is also vague to certain extent. It is difficult to define the term lascivious information or obscene pornographic informa­tion. Further our inability to deal with the cases of cyber pornography  has been proved by the Bal Bharati case.

6. Uniform law-

Mr. Vinod Kumar holds the opinion that the need of the hour is a worldwide uniform cyber law to combat cyber crime. Cyber crime is a global phenomenon and therefore the initiative to fight it should come from the same level. E.g. the author of the love bug virus was appreciated by his countrymen.

7.Lack of awareness-

One important reason that the Act of 2000 is not achieving complete success is the lack of awareness among the s about their rights. Further most of the cases are going unreported. If the people are vigilant about their rights the law definitely protects their right. E.g. the Delhi high court in October 2002 prevented a person from selling Microsoft pirated software over an auction site. Achievement was also made in the case before the court of metropolitan magistrate Delhi wherein a person was convicted for online cheating by buying Sony products using a stolen credit card.

8. Jurisdiction issues-

Jurisdiction is also one of the debatable issues in the cases of cyber crime due to the very universal nature of cyber space. With the ever-growing arms of cyber space the territorial concept seems to vanish. New methods of dispute resolution should give way to the conventional  methods. The Act of 2000 is very silent on these issues.

9. Extra territorial application-

Though S.75 provides for extra-territorial operations of this law, but they could be meaningful only when backed with provisions recognizing orders and warrants for Information issued by competent authorities outside their jurisdiction and measure for cooperation for exchange of material and evidence of computer crimes between law enforcement agencies.

10. Raising a cyber army-

By using the word ‘cyber army’ by no means I want to convey the idea of virtual army, rather I am laying emphasis on the need for a well equipped task force to deal with the new trends of hi tech crime. The government has taken a leap in this direction by constituting cyber crime cells in all metropolitan and other important cities. Further the establishment of the Cyber Crime Investigation Cell (CCIC) of the Central Bureau of Investigation (CBI) is definitely a welcome step in this direction. There are man cases in which the C.B.I has achieved success. The present position of cases of cyber crime is –

Case 1: When a woman at an MNC started receiving obscene calls, CBI found her colleague had posted her personal details on Mumbaidating.com.

Status: Probe on

Case 2: CBI arrested a man from UP, Mohammed Feroz, who placed ads offering jobs in Germany. He talked to applicants via e-mail and asked them to deposit money in his bank account in Delhi.

Status: Chargesheet not filed

Case 3: The official web-site of the Central Board of Direct Taxes was hacked last year. As Pakistan-based hackers were responsible, authorities there were informed through Interpol.

Status: Pak not cooperating.

11. Cyber savvy bench-

Cyber savvy judges are the need of the day. Judiciary plays a vital role in shaping the enactment according to the order of the day. One such stage, which needs appreciation, is the P.I.L., which the Kerela High Court has accepted through an email. The role of the judges in today’s word may be gathered by the statement- judges carve ‘law is’ to ‘law ought to be’. Mr T.K.Vishwanathan, member secretary, Law Commission , has highlighted  the requirements for introducing e-courts in India. In his article published in The Hindu he has stated “if there is one area of Governance where IT can make a huge difference to Indian public is in the Judicial System”.

12. Dynamic form of cyber crime-

Speaking on the dynamic nature of cyber crime FBI Director Louis Freeh has said, “In short, even though we have markedly improved our capabilities to fight cyber intrusions the problem is growing even faster and we are falling further behind.” The (de)creativity of human mind cannot be checked by any law. Thus the only way out is the liberal construction while applying the statutory provisions to cyber crime cases.

13. Hesitation to report offences-

As stated above one of the fatal drawbacks of the Act has been the cases going unreported. One obvious reason is the non-cooperative police force. This was proved by the Delhi time theft case. “The police are a powerful force today which can play an instrumental role in preventing cybercrime. At the same time, it can also end up wielding the rod and harassing innocent s, preventing them from going about their normal cyber business.”(10) This attitude of the administration is also revelled by incident that took place at Merrut  and Belgam. (for the facts of these incidents refer to naavi.com). For complete realisation of the provisions of this Act a cooperative police force is require.

PREVENTION OF CYBER CRIME:

Prevention is always better than cure. It is always better to take certain precaution while operating the net. A  should make them his part of cyber life. Saileshkumar Zarkar, technical advisor and network security consultant to the Mumbai Police Cyber crime Cell, advocates the 5P mantra for online security: Precaution, Prevention, Protection, Preservation and Perseverance. A netizen should keep in mind the following things-

1.to prevent cyber stalking avoid disclosing any information pertaining to oneself. This is as good as disclosing your identity to strangers in public place.

2.always avoid sending any photograph online particularly to strangers and chat friends as there have been incidents of misuse of the photographs.

3.always use latest and up date anti virus software to guard against virus attacks.

4.always keep back up volumes so that one may not suffer data loss in case of virus contamination

5.never send your credit card number to any site that is not secured, to guard against frauds.

6.always keep a watch on the sites that your children are accessing to prevent any kind of harassment or depravation in children.

7.it is better to use a security programme that gives control over the cookies and send information back to the site as leaving the cookies unguarded might prove fatal.

8.web site owners should watch traffic and check any irregularity on the site. Putting host-based intrusion detection devices on servers may do this.

9.use of firewalls may be beneficial.

10. web servers running public sites must be physically separate protected from internal corporate network.

Adjudication of a Cyber Crime - On the directions of the Bombay High Court the Central Government has by a notification dated 25.03.03 has decided that the Secretary to the Information Technology Department in each state by designation would be appointed as the AO for each state.

CONCLUSION:

Capacity of human mind is unfathomable. It is not possible to eliminate cyber crime from the cyber space. It is quite possible to check them. History is the witness that no legislation has succeeded in totally eliminating crime from the globe. The only possible step is to make people aware of their rights and duties (to report crime as a collective duty towards the society) and further making the application of the laws more stringent to check crime. Undoubtedly the Act is a historical step in the cyber world. Further I all together do not deny that there is a need to bring changes in the Information Technology Act to make it more effective to combat cyber crime. I would conclude with a word of caution for the pro-legislation school that it should be kept in mind that the provisions of the cyber law are not made so stringent that it may retard the growth of the industry and prove to be counter-productive.

He uploads to net video clippings of a girl

He is forwarded to the court and sent to Berhampur jail

BERHAMPUR: A computer science student of the city, Gopal Krushna Panigrahy was arrested by the police on charges of blackmailing a girl and her family by uploading her nude video photos on the net. It was the first cyber crime of the city, said Abhimanyu Nayak, the inspector in charge of the Town police station who investigated the case. The youth had past record of similar cases against him. He was expelled from a technical institute in Bhubaneswar on similar charges last year.

The culprit was forwarded to court and sent to Berhampur jail on Thursday. He has confessed that he had used this illegal mean of blackmailing to put pressure on the family members of the girl to get her married to him. He had relation with the girl since last four years. But their families were opposed to their relationship. He had managed to shoot a long video clip of the girl and himself in compromising positions through a web-cam and laptop. Mr Nayak said investigations had proved that the shooting was done inside the closed cabin of a cyber cafe of the city.

Complaint

In January this year the boy had pressed the parents of the girl to get her married to him. When they did not agree to it he decided to take some drastic steps so that the family would have no other way but to marry her to him. On March 29 he threw three CDs having copies of the lewd video clip shot by him in the campus of the institution where the girl studied. He also uploaded the video clip to Orkut and YouTube.com on April 1. Following complaint from the parents of the girl police investigated the case and managed to track down Gopal from his Premnagar residence.

But Mr Nayak accepted that the police force lacked necessary training to investigate cyber crimes which are on the rise. He wanted special training for the investigating officers in this field.

Cases

Michigan Man Gets 30 Months for Conspiracy to Order Destructive Computer Attacks on Business Competitors

NEWARK, N.J. — A Michigan man was sentenced today to 30 months in prison for conspiring to conduct highly destructive computer attacks on competitors of his online sportswear business, including a web-based New Jersey company, U.S. Attorney Christopher J. Christie announced.

U.S. District Judge Joseph E. Irenas also ordered Jason Salah Arabo, 19, of Southfield, Michigan, to make restitution of $504,495 to his victims — the websites he targeted as well as an Internet hosting company.

Arabo pleaded guilty today before Judge Irenas on April 12, to a one-count Information charging him with conspiracy to cause the transmission of a program, information, code, and command, and as a result of such conduct, intentionally cause damage without authorization, to a protected computer.

In pleading guilty, Arabo acknowledged that in 2004, he ran two web-based companies, www.customleader.com and www.jerseydomain.com, that sold sports apparel, including reproductions of sports uniforms, popularly known as “retro” or “throwback” jerseys.

“Arabo’s 30-month prison sentence reflects the very serious and damaging nature of the computer attacks he orchestrated,” said Christie. “This case went far beyond a teenager using his computer for online pranks. We will continue to investigate and aggressively prosecute the misuse of computers to commit crime.”

According to Assistant U.S. Attorney Eric H. Jaso, who prosecuted the case, Arabo admitted that in online “instant message” conversations he met a New Jersey resident, Jasmine Singh, who communicated using the online name “Pherk.” Arabo learned that Singh had covertly infected some two thousand personal computers with programs that enabled him to remotely control them. Singh demonstrated to Arabo online that he could command these computers to conduct attacks, known as distributed denial of service, or “DDOS” attacks, on computer servers and disable websites supported by those servers. Arabo admitted that he asked Singh to take down the websites and online sales operations of certain of his competitors. Arabo promised to compensate Singh for the attacks with merchandise, including designer sneakers.

In August 2005 Singh, who was 16 at the time of the attacks, pleaded guilty as an adult to two counts of computer theft in New Jersey State Superior court. He has since been sentenced to five years in prison and ordered to pay $35,000 in restitution for damage caused by the attacks.

Arabo admitted that, starting in July 2004, he identified competitors’ websites to Singh that he wanted taken down. One of these was Jersey-Joe.com, a New Jersey-based online business that, like Arabo’s online businesses, sold “throwback” jerseys and other merchandise. Arabo believed that once his competitors’ websites were disabled, his online business would improve. Arabo continued requesting these attacks until early December 2004, pressing Singh to disable the competitors’ websites for as long as possible. Arabo sent Singh designer sneakers and other merchandise for conducting successful attacks. The attacks stopped in December 2004 when FBI agents and New Jersey State Police investigators conducted a search of Singh’s Edison, New Jersey home and seized his computer.

Arabo was originally charged by criminal complaint on March 18, 2005. According to that complaint, the computer attacks were conducted by Singh from his home computer. Singh secretly infected thousands of computers with copies of a computer program known as a “bot” (short for “robot”). As described in the complaint, a “bot” can have legitimate functions, but can also be used to gain unauthorized access to and control over computers that they infect, and can thus cause the infected computers to attack other computers. “Bots” used for such illicit purposes are frequently disguised as MP3 music files or photographs that unsuspecting computer users download from public Internet sites. Having downloaded an infected file, a computer user is usually unaware of the presence of a “bot” on his or her computer.

In this case, according to the complaint, the infected computers included those of students on at least two college campuses in Massachusetts and Pennsylvania. Singh remotely ordered hundreds of the implanted “bots” to attack computer servers that supported Arabo’s competitors’ websites. The “bots” caused the infected computers to access the targeted website all at once, overloading the website’s hosting computer server and causing it to “crash.”

The complaint alleged that the attacks caused widespread harm and disruption to Internet and computer services far beyond the online businesses that Arabo targeted. According to the complaint, the Internet service providers that hosted the targeted websites also provided website hosting and other Internet services to a number of unrelated businesses which as a result were also harmed by the attacks.

The complaint alleged that the attacks affected businesses as far away as Europe, and caused disruption to the operations of major online retail businesses, banks, and companies that provide communications, data backup, and information services to the medical and pharmaceutical industries. The attacks disrupted crucial services to these companies that included Internet access, corporate websites, email, data storage and disaster-recovery systems. The complaint did not include an estimate of the financial losses attributable to the attacks.

In determining an actual sentence for Arabo, Judge Irenas consulted the advisory U.S. Sentencing Guidelines, which provide appropriate sentencing ranges that take into account the severity and characteristics of the offense, the defendant’s criminal history, if any, and other factors. The judge, however, was not bound by those guidelines in determining a sentence.

Parole has been abolished in the federal system. Defendants who are given custodial terms must serve nearly all that time.

The case was prosecuted by Assistant U.S. Attorney Jaso of the U.S. Attorney’s Appeals Division.

The prosecution was the result of a six-month investigation. Christie credited Special Agents of the FBI, under the direction of Special Agent in Charge Leslie Wiser, Jr., in Newark, for its investigation. Christie also credited the New Jersey Attorney General’s Office Division of Criminal Justice, under the direction of Director Gregory Paw, and the New Jersey State Police, under the direction of Col. Rick Fuentes, for their assistance during the investigation.

Defense counsel: Stacy Biancamano, Assistant Federal Public Defender

Some problems of cyber crime

The international community has come to new epoch - information society epoch. At present the human activity depends on telecommunication technologies used in almost all fields of people activity (communications, transport, space, power industry, water supplying, finances, trading, science, education, defense, public maintenance of law and order, medicine and so). In 1998 there were connected to Internet only 143 millions of people, but in 2001 the users quantity has reached to 700 millions. Russian Internet segment yet has 6 millions users or so.

Rapid developing of telecommunications and global computer networks has created the reasons, which allow to commit of cyber crimes in the high technologies field more easier. The telecommunication technologies opportunities use by criminal organizations very widely. The typical examples of such kind of crimes are:

- transmitting of crimes collected capitals,
- untaxed financial operations,
- cracks and weapon sales through Internet,
- crimes connections commitment by use of E-mail,
- compromising” spreading,
- theft of passwords and accessing networks codes,
- unlawful information coping, including commercial and confidential one,
- hacker attacks,
- producing and use of cloned personal radio-electronic measures (”similar”).

By the way many of these crimes by idea, committing and results may be named as terrorist actions.

Terrorist actions in the cyberspace could be done not only isolated persons or terrorist groups, but one state against another. By that cyber terrorism not differ from other kind of terrorism by nothing. Extremist groups, separatist forces, advocates of ideas, which defy to the universal values intensive use of modern technologies for their idea propaganda and information wars conduction.

So, creating of finding and neutrality of influence on the information technologies is the main task of the society and it law-defense authorities. This understood so in the Russian Federation well.

By the Maine office of special technical measures (M O S T M) of the Russian Department of Interior dates during 2001 year the quantities of committed in the cyber information field crimes on the territory of the Russia increased in 1.5 times or so compared with 2000 year.

The international community realized fully the possibility consequences rate from the cyber criminal thread and there was signed the International Convention of cyber criminal by the representatives of EC countries and also US, Canada and Japan in the November 2001. In the convention the crimes, which committed in the information field or against information resources or with the help of information measures factually ruled as cyber crimes and ruled the approximate list of this crimes:

- Unlawful access to information environment.
- No legal interception of information resources.
- Intervention into containing on the magnetic transmitters information.
- Intervention into the computer system.
- Unlawful use of telecommunication equipment.
- Forgery with use of computer measures.
- Deviousness with use of computer measures.
- Crimes, which connected with considered in the Convention contents actions.
- Crimes, which connected with “child” porno.
- Crimes, which connected with author and related rights breaking.
- different attacks kinds which allow to penetrate into the attacked network or intercept of network control
- cyber viruses, including network viruses (worms), which modify and delete of information or block of calculation systems work
- logical bombs- the commands kits , which penetrated into the program and operated at certain conditions for example after certain time period
- “gresian horses “,which allow to do certain actions without poisoned system master (user) knowledge ( at present time widespread the kind of “gresians”, which send to its “master” through Internet different information from the spoiled computer, including registered users passwords)
- measures of information exchange suppressing in the networks.

It is no sense to doubt that the new measures will appear soon, as the cyber crimes weapon modified constantly depending from the protection measures which used by computer networks users: when the protection systems become improved, the attack measures become more sophisticated. The main features of cyber crimes are:

- cyber crimes secretiveness
- trans-broadness
- information, information resources, information technique could be the subject ( aim) of crime infringement, the environment when offenses committed and the crime measure or tool
- computer information (crime traces) deleting and changing easiness
- cyber crimes commitment traces kept in the technique facilities memory, in the electro-magnetic field, on the machine transmitters of computer information and occupy an intermediate position between material and ideal traces
- “virtual” traces could not be removed, it is only possible to copy them
- short time of cyber crimes traces keeping on the servers of the telecommunication networks companies-operators
- unique peculiarity - actions immediateness, which directed to the computer information recognizing and persons identification which deal with unlawful activity in the computer networks.

Taking into attention cyber crimes peculiarities there appear the whole technical and juridical problems complex, which connected with absence of:

1. Legislation acts, regulating of criminal-processional actions
2. Specially training staffs (operate and investigate staff, specializing on the discovering and exposing of the crimes in the information-telecommunication field)
3. Necessary technical measures.

Take into consideration some peculiarities of crimes investigation in the computer information field (cyber crimes)

Unlawful access to the computer information (crimes, which committed with regard to computer information situated in the global computer networks or during addressing to them).

There are some unique peculiarities in that crimes investigation with juridical qualification some of unlawful activities. During no sanctioning accessing to Internet there come unlawful regarding to the protected by law information ( commercial secret), which is the users passwords list. May be some society dangerous consequences which could come. In the common circumstance it is the computer network work breaking, including:

- failure in the equipment work, because provider firm equipment designed for the certain users quantities and, of cause, not take into account illegally connected persons. Excessive equipment loading lead to mistakes during dates transmitting and, therefore, to distortion of receiving and sending information; unfounded delays during work
- incorrect information giving out, because there is present registered user name in all protocols.

In addition the binding condition is the saving of computer physical integrity, computers system or their network. If among listed of equipment work faults the computer system physical integrity as the physical object is broken, it is require the add qualification by the paragraphs about anti-property crimes. Among work failure in the chance of access monopoly condition (or static IP address), there happened the information blocking, i.e. other user has not opportunity to enter under so name (address). Besides, during no sanctioning accessing there happened information modification in the Internet network record-statistic database, including information of work time of officially registered user and payment of purchased time.

To say about guilty form, that criminal technical qualification allow to realize unambiguously the society danger of his actions, to foresee the possibility of common danger consequences coming, not to wish but allow these consequences intelligently or take to them indifferently, that demand the premeditated crime commitment.

Crimes investigation committed with regard to computer information positioned in the electronic-calculated machine but not in computer. During crimes investigation committed with regard to computer information positioned in the electronic-calculating machine but not computer as we understand this word classically (such as pager, mobile-phone, cash register and others ), it is necessary to take into attention the next peculiarities. These devices are the microprocessor devices, which are able to record, keep, polish, copy of digital (computer) information . Such devices very often joined in the common network by controller, where the self-devices are the distant network work place, and central controller is the file and communication server. So, on the positioned in the mobile, paging and other communication networks information disseminated as it protected laws as appropriate articles of 28 chapter of Russian Federation CC.

Investigation of crimes which connected with production and/or spreading of harmful programs.

The practice of production and spreading of harmful programs investigation also discovered some peculiarities, which need of explanation. Besides the material compositions of premeditated crimes in objective side of which included the legally important common dangerous consequences, in the Russian Crime Code there are formal compositions, objective side of which limited by only common dangerous action or inactiveness. There explained by especially high range of common dangerousness that the criminal law pursue enough harshly for the fact of producing, using or spreading of harmful programs for computers, not saying that any consequences will come. In these cases the intent formally is the only awareness of action (inactiveness) common danger and the wish of it committing.

<!–[if !supportLists]–>· <!–[endif]–>Terrorism and criminal activities is there, was there and a

Cyber crime protection :

Even though cyber crime detection and prevention is a tough thing but it is not impossible. For this we will have to work with a very big chain of government and technical organizations together. Cause a single person or a single country can’t do it. It should be taken step from the root level.

1). E-Mail id should be created and verified b

John Austin (1790-1859) began to study law in 1812 after five years in the army and from 1818 to 1825 practiced unsuccessfully at the chancery bar. His introspection and theory about law hugely reflected his life as an army personnel, the entire theory of law as a command and the discipline shows the same. His powers of rigorous analysis and his uncompromising intellectual honesty deeply impressed his contemporaries, and in 1826, when University College, London, was founded, he was appointed its first professor of jurisprudence, a subject that had previously occupied an unimportant place in legal studies. He spent the next two years in Germany studying Roman law and the work of German experts on modern civil law whose ideas of classification and systematic analysis exerted an influence on him second only to that of Bentham.

Commonly known as the father of the English Jurisprudence, Austin’s best known work, a version of part of his lectures, is ‘The Province of Jurisprudence Determined’, published in 1832. Here, in order to clarify the distinction between law and morality, which he considered to be blurred by doctrines of Natural Law, he elaborated his definition of law as a species of command. According to Austin, commands are expressions of desire that another shall do or forbear from some act and are accompanied by a threat of punishment (the “sanction”) for disobedience. Commands are laws “simply and properly so-called” when they prescribe courses of conduct, not specific acts, and are “set” by the “sovereign” (i.e., the person or persons to whom a society renders habitual obedience and who render no such obedience to others). This is the mark distinguishing “positive law” both from the fundamental principles of morality, which are the “law of God,” and from “positive morality,” or manmade rules of conduct, such as etiquette, conventional morality, and international law, which do not emanate from a sovereign. Austin is best known for his command theory of law, his controversial perspective on the nature of sovereignty, and his insistence on the separation of law and morality. His work marks a break from traditions of historical jurisprudence, which studies the development and evolution of law, and of natural-law theory, which holds that law, to be valid and binding must conform to the standards of morality.

Austin defines law as “rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” Here, the intelligent beings who lay down laws are God and political ruler, or sovereign; the body of rules set by God constitutes the divine law, while rules set by the sovereign make up the positive law. Thus, Austin was the vital individual who saw law ‘as it is’ and hence his theory came to be called the Positive theory or the Imperative theory and became a part of the Analytical school of Law, flourished by Jeremy Bentham. Austin classified law into two; law properly so-called and law improperly so-called. He chiefly focuses on ‘law properly so-called’ for the reason that he only considers Divine law and Human law as law per se.

Law as a Command

“Law is commands joined to threads of punishment”

Furthermore, Austin deliberates law as command of the sovereign hence, Command Theory of Law. Here he tries to expound that command lies at the very core of a sovereign. Law as a command, is backed by a threat of sanction in the event of non-compliance. Legality, on this account, is determined by the source of a norm, not the merits of its substance (i.e. it embodies a moral rule). Thus, the answer to the question “what is law?” is answered by resort to facts not value. On Austin’s view, a rule R is legally valid (i.e. is a law) in a society S if and only if R is commanded by the sovereign in S and is backed up with the threat of a sanction. The relevant social fact that confers validity, on Austin’s view, is promulgation by a sovereign willing to impose a sanction for noncompliance. A law is always a command that binds persons. A command contains three elements: (1) a wish (or desire) of a thinking being that another thinking being must carry out by acting in a certain way or abstaining from action; (2) an evil dealt by the first being and suffered by the second being in case he does not carry out the wishes of the first (a sanction); (3) an expression or some way of making others aware of a particular wish by words or other signs (the form in which the command is given is not essential). Only those commands that have a general character can be norms or rules, while commands that impose an obligation to perform a single action or prohibit a single action do not belong to law. A command to be a real law, or a binding law (positive law), must in addition be promulgated by a sovereign for his subjects, the members of an independent political society (a society subject to an authority who is not at the same time subject to any other authority). The sovereign also brings to life the positive law of his predecessors, giving it the attribute of sanctions, whereby he recognizes it as his own, as it were, and demands the same respect for it as he does for his own commands.

The Significance of Austin’s Theory

Austin’s theory is regarded as the classical form of legal positivism. Legal positivism is treated as a domain of theoretical knowledge about law. Its conception of law is also described as analytic jurisprudence (an analysis of legal concepts by formal-dogmatic methods) or as the utilitarian conception of law (law is a political instrument and a regulator of social law that carries a benefit).

Austin provided the foundation for a new object of the positive science of the philosophy of law. The aim of the new science was the precise definition of the object of study and its limits. This was intended to separate metaphysical discussions (the natural law) from scientific assertion on law. Austin thought that the conceptual apparatus of the system of common law should be set in order. He supported a reform of law with the aim of its codification. The major thesis of his theory: “only norms of conduct established or recognized by the sovereign which he orders to be observed under pain of punishment are real laws”, became a dogma of contemporary legal positivism. H. Kelsen, H. L. A. Hart, and L. L. Fuller, among others, have referred to this principle.

The subjects have the ability to protect themselves against a bad law by refusing obedience to the sovereign and thereby causing his downfall. They are guided by the calculus of what is most beneficial for society, whether it be an evil legal order or the anarchy that results from obedience. When they undermine one law, they undermine the meaning of the entire system of law. If resistance to the law and to the whole system who lead to the fall of the governing authority, then enlightened public opinion must establish whether this resistance is worthwhile. As long as a sovereign exists who is generally obeyed in society, the laws he promulgates must be observed by the subjects (his promulgation of laws that strike at the principle of utility cause justified resistance). However, one must consider the transitional anarchy, which, according to Austin, will exist after the overthrow of the sovereign. Government (or a sovereign) is necessary to do good for society.

Critical Analysis

As regards Austin’s “command” model, it seems to fit some aspects of law poorly (e.g., rules which grant powers to officials and to private citizens—of the latter, the rules for making wills, trusts, and contracts are examples), while excluding other matters (e.g., international law) which we are not inclined to exclude from the category “law.” More generally, it seems more distorting than enlightening to reduce all legal rules to one type. For example, rules that empower people to make wills and contracts perhaps can be re-characterized as part of a long chain of reasoning for eventually imposing a sanction (Austin spoke in this context of the sanction of “nullity”) on those who fail to comply with the relevant provisions. However, such a re-characterization misses the basic purpose of those sorts of laws—they are arguably about granting power and autonomy, not punishing wrongdoing. It should also be noted that Austin’s work shows a silence on questions of methodology, though this may be forgivable, given the early stage of jurisprudence. As discussed in an earlier section, in many ways, Austin was blazing a new path. On matters of methodology, later commentators on Austin’s work have had difficulty determining whether he is best understood as making empirical claims about the law or conceptual claims; elements of each sort of approach can be found in his writings.

The reaction to Austin’s work at the turn of the century was severe. His command theory was condemned as a misidentification of all law with the product of legislation and a distortion of many types of legal rule. The severance of a purely analytical jurisprudence from moral criticism of law was criticized as sterile verbalism obscuring the social function of law and the judicial process. Some critics consider that Austin’s doctrine of sovereignty confuses the ideas of legal authority and political power; others hold “legal positivism” responsible for subservience to state tyranny or absolutism.

Some of these criticisms are well founded, but even so Austin’s work is of permanent value. The rigor and clarity of his analysis have demonstrated the complexity of many important legal and political concepts and the perennial need for just such an analytical study as he proposed, and repeated efforts to show precisely where his simple distinctions between law and morality are wrong have increased the understanding of both.

The case was decided on date 07.05.2010 and the case citation is MANU/SC/0376/2010, AIR2010SC1898, 2010(5) SCALE340 by hon’ble Judges: K. G. Balakrishnan, C.J., P. Sathasivam and J. M. Panchal, JJ.

FACTS OF THE CASE:

In the present case, appellant and respondent knew each other and the respondent stated that appellant issued a post dated cheque to the respondent against certain loan furthered by respondent on 8-2-2001 for the same amount which was presented on the same day for encashment by the complainant. Then on 21-02-2001, Bank issued a memo to the complainant stating that the `Payment has been stopped by the drawer’, so complainant issued a notice to the appellant relating to such dishonour, which was neither replied nor honoured by the appellant. So, the respondent filed a complaint against the accused for dishonour of cheque.

The Trial Court acquitted the appellant on the ground that dishonour was not due to ‘insufficiency of funds’ but because of the instructions of the appellant so Section 138is not attracted and further there was no legally enforceable debt between two of them and hence the presumption under Section 139 cannot be raised. On appeal, he was convicted and fined by the High Court on the ground that accused was unable to raise a “probable defence to rebut the presumption placed on him by Section 139” which is a mandatory but rebuttable presumption, in favour of the fact that the cheque relates to a legally enforceable debt or liability and the burden to prove otherwise or to rebut this is on the accused himself; and such presumption under Section 139 is raised as soon as it is proved that the cheque bears his signature.

Then an appeal was made to the Supreme Court against the conviction wherein the appellant contended that there was no legally enforceable debt or liability between the two parties and stated that he has taken no loan. In relation to the cheque, he contended that it was a blank cheque lost by him which was bearing his signature and that the respondent is trying to misuse the same.

ISSUE:

To ‘properly interpret Section 139 of the Negotiable Instruments Act’ and “to clarify the manner in which this statutory presumption can be rebutted.”

JUDGMENT OF THE SUPREME COURT:

The Supreme Court opined that “in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act.” The Supreme Court further pointed out that Section 138 relating to dishonour of cheque comes into place when a cheque is dishonoured irrespective of the fact that it was dishonour due to instruction of stop payment or insufficiency of funds as it can be later proved that the cheque was dishonoured due to actual insufficiency of funds or some other reason.

Further the Court opined that existence of legally recoverable debt is a matter of presumption under Section 139 of the Act and such a presumption lies in favour of the complainant. So, the Supreme Court in the present case differed from observation in Krishna Janardhan Bhat v Dattatraya G. Hegde wherein it was pointed out that “existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act.”

The Court further pointed out in the present case that the presumption is a rebuttable presumption and hence the accused is free to raise a presumption. It was further stated that “Section 139 of the Act is an example of a reverse onus clause” meant “to prevent undue delay in the course of litigation” and to rebut the presumption under Section 139, the standard of proof is that of `preponderance of probabilities’, i.e. the accused is only required “to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability”.

Referring to the facts of the present case, the Court pointed out that the accused was unable to raise a probable defence and to contest the existence of a legally enforceable debt, and further he admitted the signature on the cheque to be his own so this paved a way for the statutory presumption which was not rebutted by him. Hence, the Court didn’t interfere with the judgment of the High Court and dismissed the appeal.

ANALYSIS:

The present case is a prominent example to show the presumption raised in favour of the holder of a negotiable instrument especially a cheque. The very reason of inclusion of the provisions like Section 138 and 139 is to check the growing instances of bouncing of cheques i.e. as a measure to enhance the credibility of negotiable instruments in ever growing commercial transactions and also to check the act of drawing such instruments without any intention to actually respect them. In the present case Court has very well drawn a line so as to balance the probabilities between both the parties. On one hand there was the accused who was contending that he had lost a cheque bearing his signature which the complainant was trying to misuse, for which he later asked the bank to stop payment, but he wasn’t able to prove this fact. Further he wasn’t able to prove that ‘stop payment ’was not due to insufficiency of funds and that there was no legally enforceable debt or liability, which was to be rebutted by him and which was presumed so. He was also required to prove the non existence of consideration based on preponderance of probabilities by reference to the circumstances upon which he relied. So, firstly, the Court interpreted Section 139 properly that presumption is raised in favour of the fact that there lies a legally enforceable debt and secondly, it is a rebuttable presumption which does not require very high standard of proof to rebut it and can be rebutted by raising a probable defence.

REFERENCE:

· Manupatra, Online Legal Search http://www.manupatra.com/(last visited on November 18, 2011).

· http://www.vakilno1.com/bareacts/negoinstruact/chapter13/s118.htm (last visited on November 18, 2011).

· http://www.vakilno1.com/bareacts/negoinstruact/chapter17/s138.htm(last visited on November 18, 2011).

· http://www.vakilno1.com/bareacts/negoinstruact/chapter17/s139.htm(last visited on November 18, 2011).

During a transfer of property, or conveyance of property by one person to another, one who transfers the property is known as transferor and the one who purchases that property or to whom the property is being transferred is known as the Purchaser or the Transferee. In general term Bona fide is a Latin Term meaning “In Good faith”. Thus, a Bona fide Person means the person having a good or sincere or an honest intention or belief. A Bona fide Purchaser is a term used in the law of property to refer to an innocent party who purchases property without notice of any other party’s claim to the title of that property.

Transfer of Property Act, 1882 enacted with a view to ‘define and amend certain parts of law relating to transfer of properties by acts of parties’. This is not a consolidating Act, nor does it purport to be a complete code dealing with the transfer of properties. It only deals with the transfer of immovable property including certain incorporeal rights by one living person to another living person by voluntary acts. It is based on the English law of real property and many of its provisions are borrowed from various enactments which it repeals and supersedes.

Although the Act applies to the transfer of properties between living persons, the ambit of the words ‘living person’, by an amendment in 1925, has been enlarged to include artificial or legal person such as a company or an association of individuals. It includes current as well as future transfer transactions

• Aims & Object of the Research

The aims that the researcher would precede the research with are: The nature of the research carried is Doctrinal or analytical. The researcher would firstly deal with the history of the concept then further the researcher would go with the explanation of the concept with the help of bare text & explaining it with the help of case laws. The researcher would then deal with analytical aspects & critically analyze it & further followed with the conclusion.

The Object of my research mainly it is to analyze to what rights a bona fide purchaser, to what extent…. The research conducted also deals with a wider aspect in the same & has also critically analyzed it….

The Research carried is to examine the following:

Ø Critically analyze position & rights of a purchaser who acted in bona fide interest

Ø Illustrating various case laws

• Hypothesis

The researcher had following assumptions on which the findings are based:

Ø The researcher assumed that interest of a purchaser is only protected if the particular person acted in bona fide or good faith.

Ø Assumed that protection as a bona-fide purchaser is to be examined on the merits of the case.

Ø Assumed that the plea of good faith is taken in court by the transferee illustrating various case laws.

• Importance

The importance & application of this section of this principle is based on the law of estoppel to the effect that if a man has represented that the transferor consents to an act which has been done & that he would not offer any opposition, although the same could not have been lawfully done without his consent and he thereby induces others to do that from which they might have abstained he could not question the legality of the act, to the prejudice of those who has given faith to his words or to the fair inference to be drawn from his conduct. Therefore, it is important to protect the interest of a Bonafide purchaser of a property.

• Scope of the Research

The scope of my research is limited to India, The Transfer of Property Act, 1882 although a few English Cases and English Jurist’s view has been cited in this project just for passing reference to the case law and principle but has not been dealt with in detail. Section 41 is limited & does not apply to cases arising in states to which the act does not apply but even in these states the principles underlying the above section are applicable.

Bona Fide Purchaser Of Property: Concept & Principle

• A Bonafide Purchaser

During a transfer of property, or conveyance of property by one person to another, one who transfers the property is known as transferor and the one who purchases that property or to whom the property is being transferred is known as the Purchaser or the Transferee. In general term Bona fide is a Latin Term meaning “In Good faith”. Thus, a Bona fide Person means the person having a good or sincere or an honest intention or belief. A Bona fide Purchaser is a term used in the law of property to refer to an innocent party who purchases property without notice of any other party’s claim to the title of that property. He is a person who purchases the property for value that is must pay for it or must give considerations rather than simply be the beneficiary of a gift. Even when a party, fraudulently conveys property to a bona fide purchaser, may be by any way that is by transferring or selling to the bona fide purchaser property that has already been conveyed or transferred to someone else, that bona fide purchaser will, get a valid title or a good title to the property despite the competing claims of the other party. However, parties who are claiming for the real ownership in the property will retain a cause of action (a right to sue) against the party who made the fraudulent conveyance. Thus, a Bona fide purchaser is a person , who acts in good faith , without any notice of the real title over the purchased property, purchases that property from a person , who himself not having a good title over that property, Here 3 things must be noticed that – 1) He is acting in good faith, 2) He must be honestly in his intentions , 3) he purchased the property with a false notice of false title over the purchased property but as he is the bona fide purchaser his rights and interests are protected under the laws. Thus, here we see that Bonafide Purchasers act in good faith and has no notice of the good title over the property even after a reasonable care and investigation. But, final thing is that, they are ultimately Bonafide and were not aware of the real title over the property even after a reasonable enquiry. Thus TP Act provides them some Rights and Immunities so that their interest, over the property, though purchased under a defective/bad Title must be protected. This concept is an exception to the rule contained in the maxim Nemo dat quo non hobet and also of Section 27 of Sales of Goods Act Transfer by Ostensible Owner - Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it, provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith”.

• Principle Laid Down

The foundation of this section is the following well-known passage from the judgment of the Judicial Committee in Ramcoomar v. Mac-queen.

It is a principle of natural equity which must be universally applicable that where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value from the apparent owner in the belief that he is the real owner, the man so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice or something which amounts to constructive notice of the real title or that there existed circumstances which ought to have put him upon an enquiry that, if prosecuted would have led to a discovery of it.

The section is a statutory application of the law of estoppel the general principle of which is stated by the House of Lords in Carincross v. Lorimer

If a man either by words or by conduct, has initiated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they might have abstained he cannot question the legality of the act he had so sanctioned to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.

The transferee will be protected only if he has acted in good faith after taking reasonable care to ascertain that the transferor has power to make the transfer. The transferee who willfully shuts his eyes and takes the transfer without any inquiry is not protected. The transferee is also required to show that he had purchased the property after taking care to ascertain that the transferor had power to make the transfer. The Bombay H.C. in Laxman Sakhram Salvi v Balkrishna Balwant Ghatage held that what is reasonable care depends upon the facts and circumstances of each case, and no hard and fast rules can be laid down.

The principle of this section applies to the territory of Delhi. This section makes an exception to the rule that a person cannot confer a better title then he has.

• Court Sale

The Bombay H.C. in Vaman Pandu v Tikaram held that the section only applies to voluntary transfers and has no application to court sales. The provision of Sec. 41 & 43 logically get engaged in voluntary transfers, & not in involuntary transfers like auction sales.

• Section 41 & 43

1. Transfer by unauthorized person (Sec. 43) - Is the person who subsequently acquires interest in property transferred. Where a person fraudulently or erroneously represents that he is authorized to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferee’s in good faith for consideration without notice of the existence of the said option.”The distinction between the said two provisions is apparent.

2. Application of Section 41 – Sec 41 of the Act is based on the law of estoppel to the effect that if a man has represented that the transferor consents to an act which has been done and that he would not offer any opposition thereto, although the same could not have been lawfully done without his consent and he thereby induces others to do that from which they might have abstained he could not question the legality of the act he had so sanctioned to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.

3. Ingredients of Section 41

The ingredients of Section 41 of the Act are :
1) the transferor is the ostensible owner
2) he is so by the consent, express or implied, of the real owner
3) the transfer is for consideration
4) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

In Ballu Mal v. Ram Kishan it was held that if anyone of these elements is needed, the transferee is not entitled to the benefit of this Section. In Ramrao v. State of Bombayit was held that the basis of the rule is some representation or act or conduct on the part of the true owner. In Sheogobind Ram v. Anwar Ali Patna court held that in order to get benefit of this section, the transferee must plead it & set out the relevant facts in his pleadings.

In Ved Kumari v. U.O.I. it was held that an alienee from an ostensible owner is protected under Sec. 41, if the alienee can establish that the sale was with the consent express or implied of the true owner & that it was for consideration & that the alienee had taken reasonable care to ascertain that the transferor had power to make the transfer & has acted in good faith.

In Jumma Masjid, Mercara v. Kodimaniandra Deviah it was held that Section 43, on the other hand, embodies a ‘rule of feeding the estoppel’ and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts thereupon and it is immaterial whether the transferor acts bona fide or fraudulently in making the representation.

In order to get the benefit of the said provision, the conditions which must be satisfied are:
(1) the contract of transfer was made by a person who was competent to contract; and
(2) the contract would be subsisting at the time when a claim for recovery of the property is made.

However, the provisions would have no application if the transfer was invalid as being forbidden by law or contrary to public policy, as envisaged under Section 23 or transfer made was not by free consent similar to what Sec. 14 of the Indian Contract Act 1872 respectively requires. Thus, no estoppel can be pleaded contrary to the provisions of a statute. The ‘rule of feeding the estoppel’ shall apply in absence thereof. The doctrine of feeding the estoppel envisages that ‘where a grantor has purported to grant an interest in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent acquisition, goes automatically to the earlier grantee, or as it is usually expressed, feeds the estoppel’.

The principle is based on an equitable doctrine that a person who promised to perform more than he can perform must make good his contract when he acquires the power of performance. The difference between the ambit of Section 41 and 43 of the Act is apparent. Whereas Section 41 provides that a transfer by an ostensible owner cannot be avoided on the ground that the transferor was not authorized therefore, subject to the condition that the transferee should take reasonable care to ascertain that the transferor had power to make the transfer and to act in good faith before a benefit thereof is claimed by him. In Jumma Masjid, Mercara v. Kodimaniandra Deviah it was said that Section 43 enables the transferee to whom a transferor has made a fraudulent or erroneous representation to lay hold, at his option, of any interest which the transferor may subsequently acquire in the property, unless the right of any subsequent purchaser for value without notice is in effect.

• Ostensible Owner

An ostensible owner is one who has all the indicia of ownership without being the real owner. In Crystal Developers v. Asha Lata Gosh it was held that it must be shown that with the consent of the true owner, the ostensible owner was able to represent himself as the owner of the property to the purchaser for value without notice. In Jokhu v. Mehdi it was held that a benamidar is an ostensible owner and if a person purchases from a benamidar, the real owner cannot recover unless he shows that the purchaser had actual or constructive notice of the real title.

• Scope of The Principle Involved

One of the general principles of the law of transfer of property is enunciated by the maxim nemo plus juris alium transfere potest, quam ipse habet- no man can transfer to another a right or title greater than what he himself possesses. Another maxim enunciating the same principle in another form is non dat qui non habet- he gives not who hath not. To this general principle, however there are several exceptions. Thus under the law merchant as to negotiable instruments a transferee bona fide of an instrument may get a better title than that of the transferor. Similarly, a bona fide purchaser of chattels at a sale in market overt in England may get better title to the chattels than that of the seller. Again if the true owner of property permits another to hold himself out as the real owner, as by entrusting him with the documents of title or in some other way a third person who bona-fide deals with that other may acquire a good title to the property as against the true owner. Section 41 is intended to protect third party transferees who bona fide and after due care and caution purchase the property from an ostensible owner taking him to be the real owner.  The ground of this last exception was stated by their Lordships of the Privy Council in Ramcoomar v. McQueen. “It is a principle of natural equity which must be universally applicable that where one man allows another to hold himself out as the owner of an estate & the third person purchases it from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be entitled to recover upon his secret title unless he can overthrow that of the purchaser by showing either that he had direct notice or something which amounts to constructive notice of the real title or that there existed certain circumstances which ought to have put him upon an enquiry that if prosecuted would led to a discovery of it. The principle so stated is form of an equitable doctrine of estoppels & this section is legislative enactment of the principle stated in Ramcoomar’s case. Thus it is an exception to the rule that a man cannot confer a better title than he has. The conditions must be mandatorily followed before availing its benefits. The principle of estoppels here operates between the Bonafide purchaser & the real owner & not between the ostensible owner & the purchaser, ostensible owner cannot avail benefits under this section.

• Common & Indian Law

There is a difference between Common & Indian Law in regard to applicability of this section. The latter is a diversion from the former i.e. this principle in India only applies to Immovable property whereas in England it applies to transfer of goods e.g. transaction in Cole v. North Western Bank’s case.

• Sec 52 & Sec 41

“Where a suit is instituted by the person interested against the ostensible owner challenging the latter’s title to the property it is clear that the consent if any which might have been given by the plaintiff before the date of the suit to the ostensible ownership of the defendant is withdrawn by institution of the suit”. This is so because now if the defendant transfers after institution it cannot be said that defendant was the ostensible owner with due consent. Sec. 41 do not apply to protect such transfers whereas sec 52 will apply & will render the transfer ineffective against the right of the plaintiff under the decree or order that may be passed in the suit. Sec 52 overrides sec 41 of the act. Sec 41 is with reference to general application whilst Sec 52 deals with specific situations ? the latter prevails over the former. There is no confusion as to when the provisions applies, on the institution of the real owner challenging ostensible owner title Sec 41 ceases to apply & 52 begins. The principle in Sec 41 is an exception to the general rule & the results here can only be avoided under the equitable principle of estoppel whilst this principle must yield in Sec 52. to Doctrine of Les Pendis (rule of public policy), also binds a strange party not known to litigation otherwise it defeats the very purpose if such allegation is raised during  suit pendency.

Conclusion

Thus it can be concluded that the present project has clearly laid down the rights and remedies of the bona fide purchasers very much detail. One of the exceptions, mentioned in 41, to the general rule that a person who has no title to goods cannot confer a title upon a third party, is the case in which the owner is estopped from denying the validity of the sale. Estoppel may arise where the owner has so acted as to clothe another person with apparent or ostensible ownership, or it may arise where the owner has so acted as to clothe another person with apparent or ostensible agency for sale. If the ostensible owner or ostensible agent for sale, as the case may be, purports to sell to a buyer who takes for value in good faith and without notice, the original owner ought on principle to be estopped from disputing the validity of the sale.

At common law, a person in possession of goods could not confer on another, either by sale or by pledge, any better title to the goods than he himself had. To this general rule there was an exception of sales in market overt, and an apparent exception where the person in possession had a title defeasible on account of fraud. But the general rule was that, to make either a sale or a pledge valid against the owner of the goods sold or pledged, it must be shown that the seller or pledger had authority from the owner to sell or pledge, as the ease might be. If the owner of the goods had so acted as to clothe the seller or pledger with apparent authority to sell or pledge, he was at common law precluded, as against those who were induced bona fide to act on the faith of that apparent authority, from denying that he had given such authority, and the result as to them was the same as if he had really given it. But there was no such preclusion as against those who had notice that the real authority was limited. And the possession of bills of lading or other documents of title did not at common law confer on the holder of them any greater power than the possession of the goods themselves.

In Cole v. North Western Bank the court observed the same wherein A, the owner of goods, tells B that he has sold them to C. If B then buys the goods from C in good faith and without notice of the fact that C has not a good title, A is estopped from denying the validity of the sale. “The maxim nemo plus juris transferre potest quam se ipse habet has no application where the owner of goods has so lent himself to accredit the title to another person.”

There are some rights provided to the Bona fide Purchasers, who purchase the property under defective Title. These Rights are provided by the TPA, though not severally having a distinct chapter or section covering or defining it yet, these rights can be found; in many different sections of the TP Act mainly Sections form Sec. 38 to Sec. 53. This rights is dealt by Section 41 of Transfer of Property Act, 1882, which says that Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith. This right is an exception to the rule of Latin maxim “nemo dat quo non habet” and Section 27 Sales of Goods Act, which says that a man who himself not possess a better title, cannot transfer a better title to other person. The present right is based on the principle that where two persons-Real Owner & Bonafide Purchaser, suffers from the fraud of a third person or party (ostensible Owner), the loss must fall on the person who has created or who was having the last opportunity to prevent the fraud, that is the real owner, and the ownership will pass to the innocent person trapped by the fraud (Bonafide Purchaser). Thus section 41 adds a big rider to the protection accorded by it. It is that if transferee has acted in good faith and has taken reasonable care as to ascertain what is real position is then transferee shall be protected against the rights of real owner. This right is based on the principles of equity that one, who allows another to hold himself out as the owner of a property and a third party purchased for value from the apparent owner in the belief that he was the real owner, the man, who , so allows the other to hold himself out, shall not be permitted to recover upon the secret title , unless he can overthrow that purchaser by showing either that he had direct notice or something which amounts to constructive notice of the real title , or that there existed circumstances which ought to have put him upon enquiry, which it prosecuted would led to the discovery of it . This right can only be exercised by the Bona fide Purchaser under a voluntary purchase- sale, not under any involuntary sale such as Auction- Purchaser. For this act a Mortgagor, manager of an idol or menial servant in the occupation of the property cannot be treated as the ostensible owner. Only that person will be entitled to claim protection by this right, who even after reasonable care and enquiry, were not able to find the real owner of the property and has full belief that the person making a transfer in this favour is the person really entitled to that property, taking the transfer from him. A mortgagee from an ostensible owner acting in good faith and with reasonable care has frequently been allowed the benefit of the section. The basic two ingredients which can be interpreted from this section to protect the rights of a bona fide transferee against the transferor are - a. Reasonable Care Reasonable Care means such care as an ordinary man of ordinary prudence will take. A Bona fide Purchaser is expected to have taken such reasonable care at the time of purchasing the property about the real ownership or title over the property. Reasonable care means such care as an ordinary man of business would take. Where there was absence of reasonable care and ordinary prudence on the part of transferee to ascertain the power of transferee or for the purposes of making a valid transfer, the transferee will not be protected under section 41. Only those transferee’s right are bona fide and can claim protection who, despite necessary inquiry, have not been able to discover who is the real owner of property is, and who have full believe that the person making a transfer in their favour is the person really entitled to that property, taking the transfer from him.  Good Faith Reasonable Care is not only enough, if there is absence of good faith. It is really required for a transferee to have acted in an honest manner and in the real belief that the ostensible owner is the real owner. So when a person purchased possessory title believing in good faith that his vendor was real owner and an inquiry that he could have made would only be confirmed him in that belief, then that person will be protected under this section.

Section 41 is limited & does not apply to cases arising in states to which the act does not apply but even in these states the principles underlying the above section are applicable from this the importance of the section can be easily inferred. It can be concluded from the above that legislature & court in order to protect the interest of a Bonafide purchaser of property has incorporated the above Section as an exception to the general rule & the applicability so far has been done on a fair basis. The researcher further suggests that the legislature should enact a separate provision for a Bonafide purchaser of a property describing various rights of a purchaser in good faith & clarifying the concept in a more apt manner in order to avoid confusion in this regard & which can also help & make a purchaser in good faith understand his rights & be aware in a better way.

Bibliography

Books Referred:

1. G.C. Bharuka, Mulla The Transfer of Property Act, Lexis Nexis Butterworths Wadhawa Nagpur, 10^th Edition 2006 Pg. 272
2. Maroha & Chitalay, The Transfer of Property Act, All India Reporter Nagpur, 2010 Edition. Vol. I Pg. 698
3. Avtar Singh, The Transfer of Property Act, Universal Law Publishing, 2^nd Edition.
4. B.B. Mitra & Sengupta, Transfer of Property Act, Kamal Law House, Kolkata, 19^th Edition, 2008

Websites Referred:

1. http://www.indiankanoon.org

2. http://www.vakilno1.com

Cases Referred:

· Jagannath Sakharam Sahale v. Vasudeo Vyankatesh Kanade 1987 (3) Bom CR 178

· Ramcoomar v. McQueen (1872) Ind app Sup Vol 40(43) (PC).

· University Grant Commission (UGC) which is a statutory organization set up by Union government for the coordination, determination and maintenance of standards of university education. It basically grants recognition to universities in India, and provide funds to government-recognized universities and colleges.

· All India Council for Technical Education (AICTE) is another statutory body and also a national-level council for technical education under Department of Higher Education, Ministry of Human Resource Development which is responsible for proper planning and coordinated development of the technical and management education system in India. It accredits postgraduate and graduate programs under specific categories oft Indian institutions as per its charter.

· Professional councils like the Indian Medical Council and the Bare Council of India are the other bodies which are equally responsible for imparting education in the various professional fields.

Other than these bodies, the government also plays a significant role by passing and reviewing various legal provisions regarding higher education from time to time.

Though the education system is one the largest in the world but ironically it educates only around 12% of the age group. Hardly 7-8% of the population in the age group of 17-23 years is enrolled in the institutions imparting higher education and thus there lies a great need to improve the educational infrastructure in the country as only 0.7% of India’s GDP is spent on the higher education. India, today also faces a serious quality problem that only a small proportion of its higher education sector can meet international standards. The reason for all this is the under-investment in the sector. In order to improve the system, there have been plans to establish new national “world-class” universities in each of India’s States, opening new IITs, and other initiatives. These plans, given the inadequate funds that have been announced and the shortage of qualified professors are unlikely to succeed. And thus to encourage investment in this sector India has been thinking of opening up its door for the foreign universities(FEIs) to come up and invest their capital in Indian education sector. This would not only bring world class education to our country but will also save up to $7.5 Billion (about Rs 34,500 crores) foreign exchange annually that students spend on studying abroad, as over 5 lakhs students choose to go overseas every year to obtain higher education which include professional courses in engineering, medical and management.

The various steps that have been taken to open Indian education sector for the outsider are-

· Foreign Direct Investment

Government, vide Order No.7 (4)/2000-IPdated 11.2.2000 of the Ministry of Commerce and Industry (Department of Industrial Policy and Promotion) has allowed FDI upto 100%, on the automatic route in the education sector which means that foreign entities can invest in the Indian education sector without any prior approval of the government, subject to certain sectoral rules/regulations which include

1. The project shall conform to the norms and standards, including land use requirements and provisions of community amenities and common facilities as laid down in the applicable building control regulations, bye laws, rules and other regulations of the state government/ municipal/ local body concerned.

2. The investor/ investee company shall be responsible for obtaining all necessary approvals, including those of the building/ layout plans, developing internal and peripheral areas and other infrastructure facilities, payment of development , external development and other charges and complying with all other requirement as prescribed under applicable rules/ bye laws/ regulations of the state government/ municipal/ local body concerned.

3. The state government/ municipal/ local body concerned, which approves the building/development plans, would monitor compliance of the above conditions by the developer

These conditions were laid down by the consolidated FDI policy, 1 October 2011. Though fully automatic route has been opened up for the FDI in the sector but due to various legal hurdles FEIs have till date not been able to set up their bases in India instead FEIs have been participating in the Indian educational system through

1. Twinning programs, that is, provide education partly in India and rest at the place where the FEI is situated.

2. Franchising of degree programs, under which the FEI collaborates with the Indian institutions to have their degrees be taught in India.

Over 68 of the FEIs that took the above mentioned routes were participating in the education sector without any approval from AICTE and other such regulatory bodies and thus there was a need to regulate their entrance and participation. Consequently AICTE brought out a notification in 2003 called AICTE notification for regulation for entry and operation of foreign universities and institutions imparting technical education in India, 2003.

· AICTE notification for regulation for entry and operation of foreign universities and institutions imparting technical education in India, 2003

This was the first regulation in regard to FEIs investing in India. The main features of this notification were-

In addition to the above, the notification also laid down the punitive measures and conditions for withdrawal of registration of such FEIs. In consequence to this notification only 2 FEIs got registered and a lot of other FEIs continued their operations without any approval. So to make the conditions more stringent, another notification was introduced in 2005 called AICTE notification for regulation for entry and operation of foreign universities and institutions imparting technical education in India, 2005, which has introduced certain amendments in the earlier notification.

The changes that AICTE notification 2005 has introduced are as follows-

1. FEI can set up campuses after being registered as a society or trust or a company under Section 25 of the Company Act.

2. Societies, trusts and companies registered under Section 25 of the Company’s Act, 1956, are not for profit institutions. They can generate surplus from education activities but have to plough back the profit for the growth of the institution.

3. FEIs will have to submit a detailed proposal for approval from AICTE to run a course.

4. Registration as a society or a trust is not possible for any foreign body unless cleared by the external affairs ministry and that will be a double check on preventing the bogus institutes getting into India as the ministry will be verifying their antecedents through its embassies and missions.

5. FEIs have to be affiliated to an Indian university and offer degrees of the university they are affiliated to.

6. The companies have been allowed to set up campuses through PPP (public-private partnership) or through build-operate-transfer mode under agreement with public sector.

7. The new notification made the penalties even more stringent.

A formal research in 2008 had revealed that around 140 Indian institutions and 156 FEIs were engaged in academic collaborations. Of the 156 overseas education institutions, 90 have university status and 20 are colleges. The total number of collaborations was 225 and with each collaboration having over one programme delivery, the total number collaboratively delivered stands at 635.Thus proper regulation in this field has increased the participation of FEIs to a great extent.

The above provisions were only for the entities imparting technical education in India. Till date there still remains a void when we think of the regulations for the FEIs which want to impart non-technical education, though a lot of attempts have been made to introduce regulations for the FEIs but due to various political hurdles none of them have been successful. Currently Foreign Educational Institutions Bill 2010 which has already got the consent from the UGC is right now lying pending for approval before the Parliament.

· Foreign educational institutions Bill(regulation of entry and operations) Bill, 2010

This Bill earlier was introduced in 2007 but at that time it was rejected as the left front of the government did not agree with the idea of opening up of the education sector to the world as in its opinion that would lead to commercialization and thus again it was presented in 2010. The main object of the Bill is to regulate own campuses of FEIs in India and collaboration between foreign and Indian institutes. It lays out the detailed procedure that an FEI has to follow before setting up its campus and also getting into any collaboration with an Indian institute. Main features of the Bill are-

1. No FEI can impart education in India unless it is recognized and notified by the central government as a FEI under the proposed legislation

2. Maintenance of the corpus fund of not less than INR 500 million or such sum as may be notified from time to time by the central government.

3. The FEI has to offer and impart which is in conformity with the standards laid down by the statutory authority.

4. The FEI shall out of the income received from the corpus fund, utilize not more than 75% of such income for the purposes of development of its institution in India and the remaining of such unutilized income shall be deposited into the corpus fund.

5. Any FEI which contravenes the provisions of the Bill regarding the quality of program offered in India, use of income from corpus fund and investment of surplus in generated revenue shall be liable to a penalty of not less than Rs10 lakhs which may extend to Rs 50 lakhs and also the forfeiture of the corpus fund in whole or part thereof.

If once approved by the Parliament, it will finally open the door for the FEIs to set up their respective campuses in India. The FEI would be able to affiliate with the UGC, subject to its necessary conditions an FEI could be registered as a ‘deemed university’ under the relevant provisions of UGC Act, 1956. Recently again a debate was on regarding making certain amendments in the Bill over reduction in the minimum corpus of INR 50 million. This move has been prompted by a recommendation by the parliamentary standing committee.

“The corpus will not be INR 500 million for every institution. Considering that a diverse set of FEIs have expressed interest to have operations in India, it is not feasible to have the INR 500 million corpus condition for everyone,” an MHRD official told Business Standard. And also the pre-condition wherein a foreign education institution was not allowed to utilize more than 75 per cent of the income (from the corpus fund) towards development of the institution in India, may be reviewed by the ministry and it might allow these institutes to invest the surplus in growth of the institution, after a certain lock in period.

Not only this, but 3 other Bills, namely the National Accreditation Regulatory Authority Bill, Prevention of Malpractices Bill, the Education Tribunal Bill and Universities for Innovation Bill are also lying pending before the Parliament. In addition to above The National Knowledge Commission (high-level advisory body for Prime Minister of India) in its report for higher education has also recommended the setting up of an independent governing body for supervising education, The Independent Regulatory Authority for Higher Education (IRAHE). This would not only instill confidence in FEIs, but also in investors whose general apprehension against investing in India’s education sector appears to be lack of regulatory clarity.

Negative aspect of the present policies

1.India’s open door comes with a variety of conditions and limitations. It might better be called the “half-open door.” These conditions instead of encouraging the FEIs to invest would lead to prevention. The proposed legislation requires an investment of $11 million upfront by a FEI to operate in India. Moreover, the FEI is restricted from making any profit on the Indian branch.

2.A further possible complication may be the role of State governments in setting their own regulations and conditions for foreign branches. There are separate rules laid down by the state and thus this has again increased a lot of ambiguity.

3.In addition, even after the regulations have been laid down by AICTE and a few other bodies there is still a lot of violation of these rules. And many cases have been coming to the courts nation wide in the same regard like CFA Institute and Anr. v. AICTE and many other such cases. In one of the judgment before the Madras High Court, S.T. Krishnamoothi v. Union of India (UOI, the respondent institute entered into an agreement with Southern Medical University in China without taking any prior approval from the UGC and from the Indian Medical Council and thus were penalized under both the UGC Act and IMC Act.

Thus the above makes it very clear that the change in the regulations in relation to FEIs is the need of the hour and clarity about regulations should be made as soon as possible.

Consequences of opening up Indian educational sector to foreign education providers

Once the gate is opened for the FEIs to invest in India it will give a huge high to our educational system. It will lead to increase in competition for the Indian institutes with resultant pressure on them to improve quality. But at the same time foreign institutions will need to deal with India’s often impenetrable and sometimes corrupt bureaucracy. Some fear that this would cause commercialization of education in the country. In short, many unanswered questions remain on just how foreigners will be admitted to India, how they will be managed, and who will control a highly complex set of relationships

In understanding contracts the objective approach has always focused on the literal interpretation of the words. It can be considered the manifestation of the parties’ intention. It is through words that one discovers the intent of the contract. Therefore it places a great responsibility on the drafting partyto use unambiguous words which have a clear and plain meaning. The courts have devised various means to ascertain intent and meaning of a contract. In this essay the researcher shall look into such techniques, specially the techniques used for construction of words in a contract. The researcher argues that more importance should be given to the ascertainable intent of the parties than the plain or inferred meaning of the words used in a contract.

The words used in a contract should be given their plain and ordinary meaning. The courts generally look to dictionaries and case law to determine the “plain meaning” of the words used in a contract. If the contract is unambiguous then the language must be given its plain and ordinary meaning, and would be enforced even if the results are harsh. If the words are clear and the meaning easily understood then the court should not try to unnecessarily interpret the same. The problem with this is that one who says that the meaning is plain and clear has already given an interpretation to the words, the meaning which is plain and clear for that person, and in making that statement he is asserting that any different meaning would be perverted and untrue.

It is universally agreed that it is the first duty of the court to put itself in the position of the parties at the time the contract was made; it is wholly impossible to do this without being informed by extrinsic evidence of the circumstances surrounding the making of the contract. These include the character of the subject matter, the nature of the business, the antecedent offers and counter offers and the communications of the parties with each other in the process of negotiation, the purposes of the parties which they expect to realize in the performance of the contract. A court is never justified in altering or perverting the language in order to produce a result that it regards as more just and equitable.

The terms mentioned in a contract may not always be plain and clear, a contract term is ambiguous if the language is reasonably susceptible to more than one interpretation. The first task in such a situation would be to attempt to interpret ambiguous terms by using extrinsic evidence to make the court aware of the “surrounding circumstances” and to allow the court to determine the meanings that the parties attached to the terms. Extrinsic evidence is always necessary in the interpretation of a written instrument; in determining the meaning and intention of the parties who executed or relied upon it. When courts make the assumption that there is no need for any extrinsic evidence as the meaning is plain and clear, the court is making the interpretation based on solely its extrinsic evidence of its own linguistic experience and education.

Where a contract is open to two interpretations, the one more favorable to the party who did not draft the instrument should be adopted in the absence of a clear showing that a contrary meaning was intended by the parties at the time of its execution. Contra profentum is intended to encourage careful draftsmanship, but with the emergence of standard form contracts; the use of this principle is on the decline.

There might be times when the parties do not dispute the meaning of the words; their dispute might be wholly restricted to the legal effect and the operation of the words. In such cases the words of the contract would stand as written and will be enforced as interpreted. Any finding of ambiguity within a contract is a question of law, but any determination of the meaning of ambiguous contract terms are a question of fact for a jury.

Since the intention of the parties is determined by the words in the contract, the language set forth in the contract should be the determining factor in defining ambiguous terms. Inherent within the plain and ordinary meaning rule is the prohibition against absurd results. A court, when giving meaning to certain terms of a contract, must protect the integrity of a contract by ensuring that all terms of the contract are taken in context. If the plain meaning of one condition creates an absurdity, then that meaning must be subjugated to other terms that might lead to a more reasonable result.

Another problem being Why the exception should be confined to situations where the words of the contract are ambiguous or fairly capable of bearing more than one meaning? Should parties’ common intention be defeated because the words in the question appear to the court to have a plain meaning? Where there is evidence that at the time of the contract the parties attached the same meaning to the words in dispute, the task of the court is to give effect to that meaning, regardless of whether those words on their face are ambiguous or have a plain meaning.

The courts have accepted the premise that if a certain provision has been jointly refused by the parties at the time of formation of contract, that should be respected. Despite the acceptance of this stance, there seems to be no sensible basis for limiting the admissibility of evidence of parties when they actually intended a particular meaning. When evidence is being allowed to show that the parties “united in rejecting” a particular meaning then evidence should also be allowed to show that the parties “united in accepting” a particular meaning.

One may look at the surrounding circumstances known to both parties, i.e. what was going on around them when they made the contract. If there is evidence that the ordinary meaning of the words would lead to an absurd result, you must consider whether they can reasonably bear some other meaning. Unless that happens, the plain meaning should be taken into consideration with the parties being allowed to present evidence regarding extrinsic circumstances unique to the formation of the contract. The ascertainable intent of the parties must be given more importance than the words on the contract.