iskarasmith

Advice

2012-01-11T13:10:00.000+05:30

Bad College, Bad Grades, Bad CV- The First Aid Kit For Legal Job Seekers

A law student from some unknown law school in Pune sent an email to me. I went through the CV and found: he had low marks in class10 and 12; he was reading in a law school which I and you have not heard of; he was in his fourth year and had done one internship at an unknown High Court lawyer’s office where he had ‘studied case files’ and ‘observed case proceedings’.

(These are the sort of things you do in internships in Indian courts; where juniors are treated like pests and interns like the plague carrying ones).

He stated his internship preference as: NGO or Law Firm. His areas of interest were: Corporate law and social work. He needs an internship like winter needs wollens.

This is how I went about it:
I called him up and asked him what career would he like to pursue? Does he see himself at an NGO or at a law firm? Law Firm. The first query was settled.

You can have different interests; but as a fourth year student one needs to pin point what will his career choice be; at least the first career choice! And at such a late stage in law school; your internship choices should be in sync with your career choice.
But no good law firm will take him in as an intern. He has a year and a half to make his profile suited for a job at a law firm. Even he realised this.

This is what you should do, I said: “During the 10-12 week summer holidays you have to do an internship under a good HC lawyer in Mumbai and do a second internship at an LPO. Be a proactive intern; work hard, stay late and be chic with your dress. Learn; interact and pray”.

The HC internship might also possibly earn you a good contact who can further recommend you for a some decent law firm internship. But remember:recommendations comes with commendable work“.

The LPO internship will help him look at this sector as an option and also fine-tune his legal research and writing skills. If he works hard, stays late and is chic with his dress, he might even get a job there. But thats what he doesn’t want. He wants to work for a law firm and for that there are a few more steps to be taken.

You might ask: How does he get the internship with a good HC lawyer in Bombay and with an LPO?

Here is the answer: The good thing is he has been a proactive law student; he has done good in some small moots and debates and he’ll be doing some of the IP courses I suggested too.

He will then research on some good lawyers in Bombay; take a Thursday and a Friday off his law college schedule; go to the offices of those lawyers with his CV and ask the lawyer to interview him for the internship.

That is the key: It will be him–brain, body and blood– in the lawyer’s office–cement, chairs and clerks–and he’ll be putting his CV–page, prayer and ink– on the lawyer’s desk. He’ll talk to the lawyer about why he wants the internship. He’ll treat it like an interview.

It won’t be abc@dmail.com [Law Student] with a .pdf file [CV] to some xzylaw@xyz.com [Law Firm].

A real poke works well than a facebook poke. It hits where its meant to hit.

He’ll take the internship as seriously as other people take their jobs and I am sure he’ll do well. He is genuinely concerned about his career and ready to slog and be proactive about it. And Intern Smith loves such people. Best of luck to him.

—

Here are the links to some related posts:

15 CV Tips- No Recruiter Will Refuse You.

Legal Internships- 3 Timeless Lessons and 8 Must Do Things.

5 Big Mistakes Indian Law Students Commit While Making Their CVs.

How To Be Creative While Choosing Your Internships.

—

2011-02-25T21:55:00.000+05:30

THIS IS AN ARTICLE BY Gloria Steinem...MUST READ FOR ALL

A white minority of the world has spent centuries conning us into thinking that a white skin makes
people superior—even though the only thing it really does is make them more subject to ultraviolet rays
and to wrinkles. Male human beings have built whole cultures around the idea that penis-envy is
“natural” to women—though having such an unprotected organ might be said to make men vulnerable,
and the power to give birth makes womb-envy at least as logical.
In short, the characteristics of the powerful, whatever they may be, are thought to be better than the
characteristics of the powerless—and logic has nothing to do with it.
What would happen, for instance, if suddenly, magically, men could menstruate and women could not?
The answer is clear—menstruation would become an enviable, boast-worthy, masculine event:
Men would brag about how long and how much.
Boys would mark the onset of menses, that longed-for proof of manhood, with religious ritual and stag
parties.
Congress would fund a National Institute of Dysmenorrhea to help stamp out monthly discomforts.
Sanitary supplies would be federally funded and free. (Of course, some men would still pay for the
prestige of commercial brands such as John Wayne Tampons, Muhammad Ali’s Rope-a-dope Pads,
Joe Namath Jock Shields—“For Those Light Bachelor Days,” and Robert “Baretta” Blake Maxi-Pads.)
Military men, right-wing politicians, and religious fundamentalists would cite menstruation (“menstruation”) as proof that only men could serve in the Army (“you have to give blood to take blood”),
occupy political office (“can women be aggressive without that steadfast cycle governed by the planet
Mars?”), be priest and ministers (“how could a woman give her blood for our sins?”) or rabbis (“without
the monthly loss of impurities, women remain unclean”).
Male radicals, left-wing politicians, mystics, however, would insist that women are equal, just different,
and that any woman could enter their ranks if she were willing to self-inflict a major wound every month
(“you MUST give blood for the revolution”), recognize the preeminence of menstrual issues, or
subordinate her selfness to all men in their Cycle of Enlightenment. Street guys would brag (“I’m a three
pad man”) or answer praise from a buddy (“Man, you lookin‘ good!”) by giving fives and saying, “Yeah,
man, I’m on the rag!” TV shows would treat the subject at length. (“Happy Days”: Richie and Potsie try
to convince Fonzie that he is still “The Fonz,” though he has missed two periods in a row.) So would
newspapers. (SHARK SCARE THREATENS MENSTRUATING MEN. JUDGE CITES MONTHLY
STRESS IN PARDONING RAPIST.) And movies. (Newman and Redford in “Blood Brothers”!)Men would convince women that intercourse was more pleasurable at “that time of the month.”
Lesbians would be said to fear blood and therefore life itself—though probably only because they
needed a good menstruating man.
Of course, male intellectuals would offer the most moral and logical arguments. How could a woman
master any discipline that demanded a sense of time, space, mathematics, or measurement, for
instance, without that in-built gift for measuring the cycles of the moon and planets—and thus for
measuring anything at all? In the rarefied fields of philosophy and religion, could women compensate
for missing the rhythm of the universe? Or for their lack of symbolic death-and-resurrection every
month?
Liberal males in every field would try to be kind: the fact that “these people” have no gift for measuring
life or connecting to the universe, the liberals would explain, should be punishment enough.
And how would women be trained to react? One can imagine traditional women agreeing to all
arguments with a staunch and smiling masochism. (“The ERA would force housewives to wound
themselves every month”: Phyllis Schlafly. “Your husband’s blood is as sacred as that of Jesus - and so
sexy, too!” Marabel Morgan.) Reformers and Queen Bees would try to imitate men, and pretend to have
a monthly cycle. All feminists would explain endlessly that men, too, needed to be liberated from the
false idea of Martian aggressiveness, just as women needed to escape the bonds of menses envy.
Radical feminists would add that the oppression of the nonmenstrual was the pattern for all other
oppressions (“Vampires were our first freedom fighters!”) Cultural feminists would develop a bloodless
imagery in art and literature. Socialist feminists would insist that only under capitalism would men be
able to monopolize menstrual blood . . . .
In fact, if men could menstruate, the power justifications could probably go on forever.
If we let them.

A UNUSUAL ORDER ..

2011-02-25T11:29:00.000+05:30

In an unusual order, the Supreme Court let off three gang rapists after they claimed a ‘compromise formula’ with the victim and agreed to pay her a fine of Rs 50,000 each for their offence. The judgement is reproduced here. Readers are requested to send their comments.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 749 OF 2007

BALDEV SINGH & ORS. ......Appellant (s)

Versus

STATE OF PUNJAB .....Respondent (s)

O R D E R

This appeal has been filed against the impugned judgment dated 27.0.2005 IN CRLA No. 242 of 1999 of the High Court of Punjab & Haryana at Chandigarh.

The facts of the case have been set out in the judgment of the High Court and hence we are not repeating the same here, except where necessary. The prosecution case is that on 03.03.1997 at about 6.30 A.M. the prosecutrix was coming to her house after answering the call of nature. The three appellants caught her and took her into a house and raped her and beat her. After police investigation the appellants were charge sheeted, and after a trial were convicted under Section 376 (2) (g) and Section 342 I.P.C. and sentenced to 10 years R.I. and to pay a fine of Rs.1,000/- each. The sentence was upheld by the High Court, and hence this appeal.

Admittedly the appellants have already undergone, about 3 and ½ years imprisonment each. The incident is 14 years old. The appellants and the prosecutrix are married (not to each other). The prosecutrix has also two children. An application and affidavit has been filed before us stating that the parties want to finish the dispute, have entered into a compromise on 01.09.2007, and that the accused may be acquitted and now there is no misunderstanding between them.

Section 376 is a non compoundable offence, However, the fact that the incident is an old one, is a circumstance for invoking the proviso to Section 376 (2) (g) and awarding a sentence less than 10 years, which is ordinarily the minimum sentence under that provision, as we think that there are adequate and special reasons for doing so.

On the facts of the case, considering that the incident happened in the year 1997 and that the parties have themselves entered into a compromise, we uphold the conviction of the appellant but we reduce the sentence to the period of sentence already undergone in view of the proviso to Section 376 (2) (g) which for adequate and special reasons permits imposition of a lesser sentence. However, we direct that each of the appellant will pay a sum of Rupees 50,000/- by way of enhancement of fine to the victim envisaged under Section 376 of the IPC itself. The fine shall be paid within three months from today. In the event of failure to pay the enhanced amount of fine it will be recovered as arrears of land revenue and will be given to the victim.

The appeal is disposed off.

...................J.

[MARKANDEY KATJU]

...................J.

[GYAN SHDHA MISRA]

February 22, 2011

Model Curriculum Vitae

2011-02-24T16:09:00.000+05:30

MODEL CURRICULUM VITAE

1. NAME OF STUDENT

Local Address

E-mail

Mobile number

2. ACADEMIC RECORD

University Record- Cumulative percentage of 12 trimesters

School Record- Class XII

- Class X

3. WORK EXPERIENCE

(Order of internships: Beginning from the latest internship completed and proceeding to the first internship)

Example:

Name of Firm/ Organization/ Lawyer

May, 2007 (Duration)

(Brief description of work undertaken)

May, 2006

4. PUBLICATIONS (Beginning from the latest publication and proceeding to the first)

5. MOOT COURT EXPERIENCES (Beginning from the latest and proceeding to the first)

6. PAPER PRESENTATIONS (Beginning from the latest and proceeding to the first)

7. SEMINARS ATTENDED (Beginning from the latest and proceeding to the first)

8. POSITIONS OF RESPONSIBILITY

9. OTHER ACHIEVEMENTS (Beginning from the latest and proceeding to the first)

10. REFERENCES (If being mentioned, Director NALSAR should be the First reference)

Cover Letter for Internship application

2011-02-24T13:47:00.000+05:30

Subject: Request for grant of Internship

Dear Madam/Sir

I (Name) am (Year of Law) student from (Law College).

As per the rules of the university, each student is to undergo internships at Law firms, Senior Advocates, Companies, NGOs etc. in order to gain practical experience and be able to understand ‘law in action’.

Therefore I would like to request you to kindly allow me to intern in your prestigious firm under your guidance for (no. of weeks) of (Month), (Year).

Yours sincerely,

(Name)

Enclosed: CV and Reference Letter

List of Law Firms for legal internships

2011-02-24T12:52:00.002+05:30

Advani and Co.,Pune
advanico@pn3.vsnl.net.in

ALMT Legal -
Express Towers 4th Floor, Nariman PointMumbai 400 021India
Contact: Mr. Sameer Tapia
Tel: 56367044 Fax: 56367045
mumbai@almt.com

Amarchand Mangaldas,Delhi
pooja.singh@amarchand.com

Amarchand & Mangaldas & Suresh A. Shroff & Co.
41/42, Lloyds Centre Point, PrabhadeviMumbai 400 025India
Contact: Mr. Cyril Shroff
Tel: 91224324455
Fax: 91224324980

Anand and Anand,Delhi
pravin@anandandanand.com
email@anandandanand.com

Ashwinichandra and Associates,Pune
ashwinichandra@vsnl.net

Azb and Partners:
bakhtiar.sunavala@azbpartners.com

Bodhiglobal Lpo Mumbai:
hr@bodhiglobal.com

Crawford Bayley,Mumbai
maity.deshmukh@crawfordbayley.com
renuka.raman@crawfordbayley.com

Dua Associates, Pune
duapun@duaassociates.com

Fox Mandal Little,Bangalore
purnima.kamble@foxmandal.com
padma.sinha@foxmandallittle.com

Hariani and Co,Pune
ravi.rajebhosle@h-and-co.com

Human Rights and Law Defenders,NGO,Pune
hrld@rediffmail.com

ICICI Bank
charudutta.deshpande@icicibank.com

JSagar Associates,Bangalore

2, Frontline Grandeur, 14 Walton Road, Bangalore - 560 001

T: +91 80 4350 3600; F: +91 80 4350 3617

probir@jsalaw.com
bamra@jsalaw.com
www.jsalaw.com

JSagar Associates,New Delhi

84-E, C-6 LANE, SAINIK FARMS, NEW DELHI 110 062, INDIA
tel: 91 11 2651 8714-6 fax: 91 11 2651 8717
email: newdelhi@jsalaw.com
url: http://www.jsalaw.com

Khaitan and Co,Mumbai
hr@khaitanco.com

Khaitan and Co, New Delhi

1105 ASHOKA ESTATE, 24 BARAKHAMBA ROAD, NEW DELHI 110 001, INDIA
tel: 91 11 5151 5454 fax: 91 11 5151 5318
email: del@khaitanco.com
url: http://www.khaitanco.com

Kochhar & Co. Advocates & Legal Consultants
No. 5, 17th Floor World Trade Centre 1 Cuffe Parade Mumbai 400 005India
lalit.goel@kochhar.com
Phone: 91 22 22188700 / 56370031
Fax: 91 22 22187500

Lawlexicon:
geeta@lawlexicon.net

Lex nexus,Mumbai
rina@lexnexus.com
binita@lexnexus.com

Little Company Co,Delhi
rajas.kasbekar@littlecompany.com

Luthra and Luthra, Delhi
chandoke@luthra.com
hcchandoke@luthra.com
shingorani@luthra.com

Mohan and Mohan,Pune
murali.mohan@247advocate.com

Nishith Desai Associates
93-B Mittal Court Nariman PointMumbai 400021India
Contact: Mr. Vikram Shroff
Tel: 91-22-2282 0609
Fax: 91-22-2287 5792

Paras Kuhad Nevagi and Associates,Pune
pkapune@paraskuhad.com

Paras Kuhad and Associates,Jaipur
shiela@paraskuhad.com

Pragna Thakkar And Co
18/109 ESPLANADE MANSION, 144 M.G. ROAD, FORT,Mumbai 400001India
Contact: Mr. DEEPAK THAKKAR
Tel: 91.22.9867332990
Fax: 91.22.22843402

Pricewaterhouse Coopers
4th Floor Sandoz House, Dr. Annie Basant Road. WortiMumbai 400018India
Contact: Mr. Orijit Das
Fax: 0091.22.495.1928

S Jalan And Co,Kolkata
kolkata@sjalanco.com

Singhania and Co,Delhi
hr@singhanialaw.com

Singhania & Partners
123 Mittal Court "A"Nariman PointMumbai 400021India
Phone: +91 (22) 2288-5550
Fax: +91 (22) 2288-5560
careers@singhania.net

Surana and Surana,Chennai
intellect@lawindia.com
lawyer@lawindia.com

Thakker & Thakker,Mumbai
geeta@ttindia.com
bjt@ttindia.com

Titus and Co, Delhi
titus@titus-india.com

Trilegal,Delhi
rahul.matthan@trilegal.com
prem.ayappa@trilegal.com

Wadia Ghandy & Co.

N.M. Wadia Buildings,

123 Mahatma Gandhi Road,
Mumbai 400 001
Tel : 22670669, 22670749, 22675136
Contact Person: Nikeeta
e-mail: nikeeta.kaspale@wadiaghandy.com

SOME MORE LAW FIRMS IN ALPHABETICAL ORDER

A

# ABACUS LEGAL GROUP:
R-116 GROUND FLOOR, GREATER KAILASH PART-1, NEW DELHI110 048, INDIA
tel: 91 11 5163 3364 fax: 91 11 2621 6522
email: abacus@del2.vsnl.net.in

# ACTION AID INDIA:
Nithila Bhaskaran, Sabala, ActionAid India, 139 Richmond Road, Bangalore-560025.
Tel: 080-25586682. Fax: 080-25586284 Email: nitilab@actionaidindia.org

# AKASH CHITTRANSHI & ASSOCIATES:
C-6/6274, VASANT KUNJ, NEW DELHI 110 070, INDIA
tel: 91 11 2613 2538 fax: 91 11 2613 6520
email: akash@aca-law.com
url: www.aca-law.com

# AMARJIT & ASSOCIATES:
SUITE 404, LAW ARCADE, 18 PUSA ROAD, NEW DELHI 110 005, INDIA
tel: 91 11 2578 4796 fax: 91 11 2578 4798
email: asmonga@vsnl.com

# AMITABHA SEN & CO:
SUITE 106, 34 FEROZE SHAH ROAD, NEW DELHI 110 001, INDIA
tel: 91 11 2335 2366 fax: 91 11 2614 3305
email: asenco@asenco.com
url: www.asenco.com

# AMARCHAND MANGALDAS:
201 MIDFORD HOUSE, MIDFORD GARDENS, OPPOSITE TAJ RESIDENCY HOTEL,, OFF MG ROAD, BANGALORE 560025, INDIA
tel: 91 80 5584870 fax: 91 80 5584266

# AMARCHAND MANGALDAS:
AMARCHAND TOWERS, 216 OKHLA INDUSTRIAL ESTATE, PHASE-III, NEW DELHI 110020, INDIA
tel: 91 11 2692 0500 fax: 91 11 2692 4900
email: pallavi.shroff@amarchand.com

# Amarchand & Mangaldas & Suresh A. Shroff & Co:
41/42, Lloyds Centre Point, Prabhadevi
Mumbai 400 025
India
Contact: Mr. Cyril Shroff
pallavi.shroff@amarchand.com
Tel: 91224324455
Fax: 91224324980

# AMNESTY INTERNATIONAL:
Tel:+91 11 2685 4763
Fax: +91 11 2651 0202
C-161 4th Floor
Guatam Nagar
(Behin Indian Oil/Gulmohar
Commerical Complex)
New Delhi 110 049
INDIA

# ANAND AND ANAND :
1 JAIPUR ESTATE, B-41 NIZAMUDDIN EAST, NEW DELHI 110013, INDIA
tel: 91 11 2435 5076 fax: 91 11 2435 4243
email: email@anandandanand.com

# ASHURST:
NEW DELHI LIAISON OFFICE, D-1, 6 AURANGZEB ROAD, NEW DELHI 110011, INDIA
tel: 91 11 2301 4054 fax: 91 11 2301 4089
email: firstname.lastname@ashursts.com
url: www.ashursts.com

# ASIAN AFRICAN LEGAL CONSULTATIVE ORGANIZATION:
Amb. Dr. Wafik Zaher Kamil
Secretary-General
Tel: +91 (11) 26151034 – FAX: +91 (11) 26152041
E-mail: w_kamil@yahoo.com
Amb. Dr. Ali Reza Deihim
Deputy Secretary General
Asian African Legal Consultative Organization
E-66 Vasant Marg, Vasant Vihar
New Delhi - 110057
Telephones : + 91 (11) 26152251 / 26151559 / 26152051
Facsimile : + 91 (11) 26152041
e-mail : mail@aalco.org
: aalcc@vsnl.com

# AZB & PARTNERS:
AZB HOUSE, 67-4 4TH CROSS, LAVELLE ROAD, BANGALORE 560 001, INDIA
# AZB & PARTNERS:
F40 SOUTH EXTENSION PART 1, NEW DELHI 110 049, INDIA
tel: 91 11 2461 8947 fax: 91 11 2462 5302

B

# BHASIN & CO:
10 HAILEY ROAD, 10TH FLOOR, NEW DELHI 110 001, INDIA
tel: 91 11 2332 2601 fax: 91 11 2332 9273

C

# COMMONWEALTH HUMAN RIGHTS INITIATIVE:
Headquarter: CHRI New Delhi Office
B-117, Second Floor, Sarvodaya Enclave
New Delhi - 110 017
INDIA
Tel: +91-11-2685-0523, 2652-8152, 2686-4678
Fax: +91-11-2686-4688
E-mail: chriall@nda.vsnl.net.in

# Crawford Bayley & Co:
State Bank Buildings, N.G.N. Vaidya Marg
Mumbai 400 023
India
Contact: Mr. Darius Shroff , Sanjay Asher
sanjayasher@crawfordbayley.com
Tel: 91222663713
Fax: 91222660355

D

# DAVE & GIRISH & CO:
FLAT NO. GB, GROUND FLOOR, SANGEETHA APARTMENTS, NO 13, 18TH CROSS, BANGALORE 560 055, INDIA
tel: 91 80 334 1508
email: mayura@vsnl.com
url: www.lawindiadavegirish.com

# DUA ASSOCIATES:
130/1, 2ND FLOOR, ULSOOR ROAD, BANGALORE 560 042, INDIA
tel: 91 80 2558 8799 fax: 91 80 2558 88 01
# DUA ASSOCIATES:
202-206 TOLSTOY HOUSE, 15 TOLSTOY MARG, NEW DELHI 110 001, INDIA
tel: 91 11 2371 4408 fax: 91 11 2335 7097
email: ranji@duaassociates.com

F
# FOX MANDAL:
FM HOUSE, 6/12 PRIMROSE ROAD, BANGALORE 560 025, INDIA
tel: 91 80 559 5911 fax: 91 80 559 5844
email: bangalore@foxmandal.com
url: www.foxmandal.com

# FOX MANDAL:
FM HOUSE, D-1109, NEW FRIENDS COLONY, NEW DELHI 110 065, INDIA
tel: 91 12 0244 4567 fax: 91 12 0254 2222
email: newdelhi@foxmandal.com
url: www.foxmandal.com

G
# GREENPEACE:
Greenpeace India
#3360, 13th B Main,HAL II Stage
Indira Nagar, Bangalore
Karnataka, India
Tel: +91 80 51154866
Fax: +91 80 51154862

H

# HOLLA & HOLLA, PATIL & NETTAR – ADVOCATES:
102-103 EMBASSY SQUARE, 148 INFANTRY ROAD, BANGALORE 560 001, INDIA
tel: 91 80 2228 5336 fax: 91 80 2225 6119
email: hollaandholla@vsnl.net

I
# INTERNATIONAL LABOUR ORGANISATION:
+91.11.460.21.01/02/03/06
+91.11.464.79.72: Director +91.11.464.79.73: ILO/SAAT
+91.11.460.21.11: ILO Office delhi@ilo.org

J

# J SAGAR ASSOCIATES:
84-E, C-6 LANE, SAINIK FARMS, NEW DELHI 110 062, INDIA
tel: 91 11 2651 8714-6 fax: 91 11 2651 8717
email: newdelhi@jsalaw.com
url: www.jsalaw.com

K
# KARANJAWALA AND COMPANY:
A-76 DEFENCE COLONY, NEW DELHI 110024, INDIA
tel: 91 11 5155 1911 fax: 91 11 5155 1910
email: karanjawala@vsnl.com

# KHAITAN & CO:
SUNRISE CHAMBERS, 22 ULSOOR ROAD, BANGALORE 560 042, INDIA
tel: 91 80 559 7466 fax: 91 80 559 7452
email: blr@khaitanco.com
url: www.khaitanco.com

# KHAITAN & CO:
1105 ASHOKA ESTATE, 24 BARAKHAMBA ROAD, NEW DELHI 110 001, INDIA
tel: 91 11 5151 5454 fax: 91 11 5151 5318
email: del@khaitanco.com
url: www.khaitanco.com

# KING & PARTRIDGE ADVOCATES:
48 LAVELLE ROAD, BANGALORE 560 001, INDIA
tel: 91 80 2221 2341 fax: 91 80 2221 2376
email: kingpart@blr.vsnl.net.in

# KOCHHAR & CO:
202, PRESTIGE MERIDIAN 2, 30 M.G. ROAD, BANGALORE 560 001, INDIA
tel: 91 80 5112 4994 fax: 91 80 5112 4998
email: legal@bgl.kochhar.com

# Kochhar & Co. Advocates & Legal Consultants:
17th Floor, Nirmal Building, Nariman Point
Mumbai 400 021, India
Tel: 91 22 56559701-4, Fax: 91 22 56559705
Main Email Address: legal@mumbai.kochhar.com

# LEXINDIA:
5, JAIN MANDIR MARG (ANNEXE), CONNAUGHT PLACE, NEW DELHI 110001, INDIA
tel: 91 11 2374 7339 fax: 91 11 2374 7338
email: info.delhi@lexindia.com

# LEX NEXUS:
MUMBAI (RESEARCH) OFFICE
CONTACT DETAILS
Email: contact@lexnexus.net
Tel: +91-22-22659969, +91 9869025182, +91 9869414920
Fax:+91-22-22691882
Address: Office No. 29, 3rd Floor, 8, Rajabahadur Mansion, Ambalal Doshi Marg, Fort, Mumbai 400023, India.
NEW DELHI (BRANCH) OFFICE
CONTACT DETAILS
Email: newdelhi@lexnexus.com
Tel: +91-11-51030707, +91 9818007007
Fax:+91-11-24328888
Address: D-15, Ground Floor, Jungpura Extension, New Delhi 110014,India.
MUMBAI (MAIN) OFFICE
CONTACT DETAILS
Email: contact@lexnexus.net
Tel: +91-22-22659969, +91 9869204686
Fax:+91-22-22691882
Address: Office No. 112-D, 2nd Floor, Pannalal Bansilal Building, 24-B, Rajabahadur Compound, Ambalal Doshi Marg, Fort, Mumbai 400023, India.

# LINK LEGAL:
109 GOLF APARTMENTS, MAHARISHI RAMANNA MARG, SUJAN SINGH PARK, NEW DELHI 110003, INDIA
tel: 91 11 2461 0080 fax: 91 11 2461 0083
email: linklegal@linklegalin.com

# LUTHRA & LUTHRA:
103 ASHOKA ESTATE, 24 BARAKHAMBA ROAD, NEW DELHI 110 001, INDIA
tel: 91 11 2335 0633 fax: 91 11 2372 3909
email: luthra@luthra.com

M

# MULLA & MULLA & CRAIGIE BLUNT & CAROE:
209 REGENCY ENCLAVE, 4 MAGARATH ROAD, BANGALORE 560025, INDIA
tel: 91 80 555 0370 fax: 90 80 559 8549
email: banlore.mulla@axcess.net.in
N

# Nishith Desai Associates:
93-B Mittal Court
Nariman Point
Mumbai (Bombay) 400 021, India
Telephone: +91-22-2282 0609
Fax: +91-22-2287 5792
Email: internship@nishithdesai.com
Web Site: http://www.nishithdesai.com

O

# OP KHAITAN & CO:
KHAITAN HOUSE, B-1 DEFENCE COLONY, NEW DELHI 110024, INDIA
tel: 91 11 2433 7516 fax: 91 11 2433 7958
email: opkhaitan@opkhaitan.com

P

# P & A LAW OFFICES:
1ST FL. DR. GOPAL DAS BHAVAN, 28 BARAKHAMBA RD., NEW DELHI 110-001, INDIA
tel: 91 11 2373 8793/2373 7636 fax: 91 11 2335 3761
url: www.jonesday.com

# POOVAYYA & CO:
203-205 COMMERCE HOUSE, 9/1 CUNNINGHAM ROAD, BANGALORE 560 052, INDIA
tel: 91 80 2220 2268 fax: 91 80 2228 6634
email: poovayya@vsnl.com
url: www.poovayya.com

# P H PAREKH & CO:
PAREKH CHAMBERS, 30 SCHOOL LANE, BENGALI MARKET, NEW DELHI 110001, INDIA
tel: 91 11 5152 6601 fax: 91 11 2331 1951
email: phparekh@phparekh.com
url: www.phparekh.com

R

# RAJINDER NARAIN & CO:
14F, SHIVAM BUILDING, CONNAUGHT PLACE, NEW DELHI 110 001, INDIA
tel: 91 11 23 31 3232 fax: 91 11 23 32 8319
email: inbox@rnclegal.com

S

# SETH DUA & ASSOCIATES:
C 56 NEETI BAGH, NEW DELHI 110049, INDIA
tel: 91 11 2652 6104 fax: 91 11 2652 5503
email: sethdua@sethdua.com

# SETH DUA & ASSOCIATES:
C 56 NEETI BAGH, NEW DELHI 110049, INDIA
tel: 91 11 516 44400 fax: 91 11 516 44500
email: sethdua@sethdua.com
atul.dua@sethdua.com

# SINGHANIA & CO:
204 A MITTAL TOWERS, 6 MAHATMA GANDHI ROAD, BANGALORE 560 001, INDIA
tel: 91 80 558 8763 fax: 91 80 558 84593
email: bangalore@singhania.com
url: www.singhania.com

# SINGHANIA & CO:
107 HIMALAYA HOUSE, 23 KASTURBA GANDHI MARG, NEW DELHI 110001, INDIA
tel: 91 11 2331 8300 fax: 91 11 2335 4050
email: new-delhi@singhania.com
url: www.singhania.com

# SURANA & SURANA INTERNATIONAL ATTORNEYS:
NATIONAL INSURANCE BUILDING, #224 NSC BOSE ROAD, CHENNAI 600 001, INDIA
tel: 91 44 538 1616 fax: 91 44 538 3339
email: lawyer@lawindia.com
url: www.lawindia.com

T

# TITUS & CO:
TITUS HOUSE, R-4 GREATER KAILASH-1, NEW DELHI - 110048, INDIA
tel: 91 11 2647 0700 fax: 91 11 2648 0300
email: titus@titus-india.com

# TRILEGAL:
2 CASA GRANDE. 18/3 3RD CROSS, NANDI DURGA ROAD,BANGALORE 560 046, INDIA
tel: 91 80 353 6319 fax: 91 80 353 7032
email: bangalore@trilegal.com
url: www.trilegal.com
# TRILEGAL:
E-514, GREATER KAILASH II, NEW DELHI 110 048, INDIA
tel: 91 11 5163 9393 fax: 91 11 5163 9292
email: delhi@trilegal.com
url: www.trilegal.com

Firms, Companies & LPO’s - email ids

darshana.patankar@mindcrest.com

rohan.dalal@mindcrest.com
dhiraj.merchant@mindcrest.com
charanjot.bhui@mindcrest.com
shilpi.jhingran@mindcrest.com>
Nidhi.Saxena@mindcrest.com

vini@srcorporate.com

vidyad@sddglobal.com

arun.issac@clubmahindra.com

sudarsanam.srinivasan@relianceada.com

suresh.velandy@relianceada.com

r.taimni@tuli.biz

bahl-mansi@dlfgroup.in

sheba.banerjee@adityabirla.com

rapti.mukherjee@icicibank.com

venu.gudla@icicibank.com

hrd@lakshmisri.com

madhumita.paulmankad@amarchand.com

vandana.shroff@amarchand.com

bp.singh@idbi.co.in

bindi.dave@wadiaghandy.com

cdsouza@almtlegal.com,
cdcosta@almtlegal.com

stapia@almtlegal.com,
hjain@almtlegal.com,
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murali.ananthasivan@azbpartners.com

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sa.karthik@induslaw.com

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arundathi.m@trilegal.com

shalini.nandwani@icicibank.com

r.j.wani@philips.com

m.ravi.kiran@philips.com

jayadev.d@quislex.net

dhananjai.k@quislex.net

ash.kumar84@gmail.com

cyril.shroff@amarchand.com

jijimon.joseph@amarchand.com

careers@majmudarindia.com

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jagdish.ghorpade@kochhar.com

Amit Tambe

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mailbox@majmudarindia.com

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pankaj@anandandanand.com,
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supriya.javalgekar@gmail.com,
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pkamumbai@paraskuhad.com

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satish.venkatachaliah@sap.com

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mailto:bhaskar@hsbpartners.com

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rex.michael@thomson.com

indu.malhotra@gmail.com

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rparekh2@jnjin.jnj.com

thomas.thoppil@hp.com

tanya.salim@honeywell.com,
email@anandandanand.com,
jayendra.kapadia@foxmandallittle.com,
ziyan@dudhatpereira.com

gg-lgl@lth.ltindia.com

mnavita@suzlon.com,
wodeyar.sushma@wipro.com,
anjana.thomas@indojuris.com,
gdmello@essar.com,
ravindran@essar.com,

kiran.pulani@ksandk.com

rajesh_nambiar@mindtree.com

mailto:siadmin@eth.net

mailto:hr@appleadayproperties.com

mailto:srkconstructions@gmail.com

amishi.jariwala@azbpartners.com

globallegal@gmail.com

rvasudev@duaassociates.com

abhijeet.joshi@azbpartners.com,
ajay@khaitanco.com,
anarayan_20_2003@yahoo.co.in,
atul.chitale@aychitale.com,
atul.dua@sethdua.com,
bangalore@foxmandal.com,
bangalore@trilegal.com,
bernadette.carvalho@dsklegal.com,
bhaskar@hsbpartners.com,
blr@krishnaandsaurastri.com,
bom@aralaw.com,
bom@khaitanco.com,
cdcosta@almtlegal.com,
cdsouza@almtlegal.com,
chennai@foxmandal.com,
chennai@raplawfirm.in,
chriall@nda.vsnl.net.in,
contact@hathipartners.com,
contact@lexnexus.net,
del@khaitanco.com,
delhi@ksandk.com,
delhi@trilegal.com,
dpa@duhatpereira.com,
duablr@duaassociates.com,
gagrats@gagrats.com,
gauravchatterji@gmail.com,
hollaandholla@vsnl.net,
hr@khaitanco.com,
hrd@lakshmisri.com,
inbox@rnclegal.com,
indus@induslaw.com,
info@krishnaandsaurastri.com,
jaina@aralaw.com,
jijimon.joseph@amarchand.com,
kamni@mumbai.kochhar.com,
karanjawala@vsnl.com,
kingpat@md4.vsnl.net.in,
krismark@vsnl.net,
lawoffice@hsbpartners.com,
legal@mumbai.kochhar.com,
legalvaidya.iprservices@gmail.com,
madhura.vipra@dsklegal.com,
mailbox@majmudarindia.com,
malini.raju@azbpartners.com,
mandeep.singh@bmrtax.com,
mullas@vsnl.com,
mumbai@luthra.com,
mvenugopal@krcco.com,
nanditha.gopal@azbpartners.com,
nehan@anandandanand.com,
nikeeta.kaspale@wadiaghandy.com,
padma.sinha@foxmandallittle.com,
parveen.khodaijishah@trilegal.com,
pauliene@poovayya.net,
perin.bharucha@azbpartners.com,
priyasawant@elp-in.com,
raghavan@duaassociates.com,
ramani@raplawfirm.in,
recruitphparekh@phparekh.com,
reeba.chacko@amarchand.com,
remfry-sagar@remfry.com,
rinki.ganguli@azbpartners.com,
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robert@juriscorp.com,
rowena@aralaw.com,
rvasudev@duaassociates.com,
sanjayasher@crawfordbayley.com,
seema.dasgupta@trilegal.com,
sethdua@sethdua.com,
shameela@nishithdesai.com,
sharath.chandrashekhar@utibank.co.in,
shilpasingh@duaassociates.com,
simon@luthra.com,
ssk732001@yahoo.com,
stapia@almtlegal.com,
sudeshna.b@foxmandallittle.com,
sunders@hdfc.com,
sunil.pundlik@tatamotors.com,
surana@lawindia.com,
talha@jsalaw.com,
vandana_vaidya25@yahoo.co.in,
vandana.shroff@amarchand.com,
vivek.chandy@azbpartners.com

duablr@duaassociates.com,
anoop@majmudarindia.com,
talha@jsalaw.com,
raghavan@duaassociates.com,
umesh.kamath@allianzcornhill.co.in,
sa.karthik@induslaw.com,
indus@induslaw.com,
mvenugopal@krcco.com,
legalvaidya.iprservices@gmail.com,
vandana_vaidya25@yahoo.co.in,
anarayan_20_2003@yahoo.co.in

sharad.ohri@bmradvisors.com

mailto:contact@hathipartners.com

kkvenu@vsnl.com

umesh.kamath@allianzcornhill.co.in

anjali@khaitanco.com>

ajay@khaitanco.com

krismark@vsnl.net

vandana_vaidya25@yahoo.co.in

delhi@trilegal.com

mumbai@luthra.com

malini.raju@azbpartners.com

mrprasanna@adityabirla.com

mail@lexorbis.com

office@trustman.org

latha@nishithdesai.com

pnm@jsalaw.com

perin.bharucha@azbpartners.com

seema.dasgupta@trilegal.com

shameela@nishithdesai.com

nehan@anandandanand.com

jyoti.castelino@dsklegal.com

del@khaitanco.com

jaina@aralaw.com

mullas@vsnl.com

chriall@nda.vsnl.net.in

rc@humanrightsinitiative.org

shingorani@luthra.com

jophy.d@naukri.com

jacobmathias@gmail.com

advjollyjohn@yahoo.com

priyasawant@elp-in.com

suhailnathani@elp-in.com

mailto:maimoona.lgles@legaleasesolutions.com

mail@iyerandthomas.com

mustafa@amlaw.in

inbox@rnclegal.com

rupali@mvkini.com

somaihk@indianoil.co.in

firozashroff@tata.com

neetu.sonthali@kotak.com,
neetu.sonthalia@kotak.com

ravi.rshankar@wipro.com

mailto:girija@softscribellc.com

mailto:mary@narasappa.com

rnair@wockhardt.com

Mrinal_ojha@yahoo.com

lsblr@lakshmisri.com

mailto:siddharth@narasappa.com

staff@trustman.org

mail@sethassociates.com

mailto:vijaykanth@legalpundits.com

mona.dawar@infoprocorp.com

ambika.nair@thomson.com

vjmathew@vsnl.com

tsg@tsggopalanandco.com

l.segura@phlaw.com,
ph@phlaw.com

sriranga@vsnl.com

ninannmathew@yahoo.com

jaideep@crosstreaminfo.com

vipin.warrier@in.abb.com

rajeev.nair@ingvysyalife.com

Sujith.george@hp.com

careers@pangea3.com

sethdua@sethdua.com

mtitus@titus-india.com

hr@ksandk.com

sampadag@shoppersstop.co.in

manoj.jacob@247analyst.com

nandini@sahara-one.com

kaplegal@vsnl.net

hrd@skylinebuilders.com

info@lawquestinternational.com

mail@iallm.org,

mail@ndlosouth.com

kainth@bgl.vsnl.net.in

chennai@drkainthassociates.com

remfry-sagar@remfry.com

vinay@lls.in

upendra@khaitanco.com

sunil.pundlik@tatamotors.com

vipings@geojit.com

anooph@microsoft.com

anilw@microsoft.com

legalvaidya.iprservices@gmail.com

mvenugopal@krcco.com

atul.chitale@aychitale.com

ramani@raplawfirm.in

dpa@duhatpereira.com

sharath.chandrashekhar@utibank.co.in

aakash@khaitanco.com,
akaash@khaitanco.com

lbhasin@vsnl.com

Vinita@brainleague.com

vermag@yours.com

pprao@airtelbroadband.in

anreddy_advocate@yahoo.co.in

harender_advocate@yahoo.co.in

mandeep.singh@bmrtax.com

sunders@hdfc.com

ebdesai@mullas.net

recruitphparekh@phparekh.com

kingpat@md4.vsnl.net.in

dinesh.singh@indojuris.com

rjgagrat@gagrats.com

deepali@wakhariya.com

vpdalmia@vaishlaw.com

sylvester.mathais@itcinfotech.com

narayan_20_2003@yahoo.co.in

madhav.anchan@tcs.com

admin@gbsindia.net

hohrd@bankofindia.co.in

The dilemma of the Forest Rights

2011-02-10T23:38:00.002+05:30

The UPA led government will perhaps be remembered for implementing so many acts and ordinances. It is now the turn of The Forest Right Act, which is now creating a stir of opinions in the nation. Passed in the year 2006, it is still being targeted. The basic target of this Act, also known as, the “Tribal Land Act,” is giving the rights of forest dwelling communities to land and other resources, denied to them over decades, as a result of the continuance of colonial forest laws in

India

. It takes step towards new system of conservation.

India

’s scheduled tribes are probably amongst the country’s most marginalized groups of people. Despite some positive actions, constitutional provisions, a number of schemes intended at socially and economically benefiting them, the results on the ground continue to be disappointing[1]. India’s forest is governed mainly by two laws ‘The Indian forest act, 1927’ which empowers the government to declare any area to be a reserved forest, protected forest or village forest and ‘The wildlife( protection) act,1972’, allows any area to be constituted as a "protected area", namely a national park, wildlife sanctuary, tiger reserve or community conservation area. Under these laws the rights of the tribal people who depend on these protected areas are to be settled by a ‘forest settlement officer’. His job is to listen to the claims of the people, which when forwarded and then if found valid, the people either continue in their occupation or deny them and give compensation to the same.[2]

The problem is that this has not been applied in full force and if applied, was full of shaky problems. Those whose rights were not recorded during the settlement process are susceptible to eviction at any time. This leads to harassment, evictions, extortion of money and sexual molestation of forest dwellers by forest officials, who wield absolute authority over forest dwellers' livelihoods and daily lives. The Statement of Objects and Reasons of the Forest Rights Act describes it as a law intended to correct the "historical injustice" done to forest dwellers by the failure to recognise their rights[3].

The basic features of the Act

There are certain features of the Act which are worth being mentioned. The Act embodies Rights given to the claimants, the duty of the claimants once becoming a legal entity of their occupation and also the eligibility criteria.

The Act guarantees twelve types of rights[4]:

Right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers.

Community rights such as Nistar, by whatever name called, including those used in erstwhile Princely States, Zamindari or such intermediary regimes.

Right of ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries.

Other community rights of uses or entitlements such as fish and other products of water bodies, grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities.

Rights including community tenures of habitat and habitation for primitive tribal groups and pre-agricultural communities.

Rights in or over disputed lands under any nomenclature in any State where claims are disputed.

Rights for conversion of Pattas or leases or grants issued by any local authority or any State Government on forest lands to titles.

Rights of settlement and conversion of all forest villages, old habitation, unsurveyed villages and other villages in forests, whether recorded, notified or not into revenue villages.
Right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use.

Rights which are recognised under any State law or laws of any Autonomous District Council or Autonomous Regional Council or which are accepted as rights of tribals under any traditional or customary law of the concerned tribes of any State.

Right of access to biodiversity and community right to intellectual property and traditional knowledge related to biodiversity and cultural diversity.

Any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or other traditional forest dwellers, as the case may be, which are not mentioned in clauses (a) to (k) but excluding the traditional right of hunting or trapping or extracting a part of the body of any species of wild animal.

Right to in situ rehabilitation including alternative land in cases where the Scheduled Tribes and other traditional forest dwellers have been illegally evicted or displaced from forest land of any description without receiving their legal entitlement to rehabilitation prior to the 13th day of December, 2005

The Act also establishes the eligibility criteria for people who could enjoy the privileges. This includes that the claimants be either, schedule tribe or those who have lived for 75 years in the area. Other than this, people who primarily depend on the forest are eligible.

It also embodies certain Duties to the claimants[5]. These are as follows:

Protect the wild life, forest and biodiversity
Ensure that adjoining catchments area, water sources and other ecological sensitive areas are adequately protected;
Ensure that the habitat of forest dwelling Scheduled Tribes and other traditional forest dwellers is preserved from any form of destructive practices affecting their cultural and natural heritage;
Ensure that the decisions taken in the Gram Sabha to regulate access to community forest resources and stop any activity which adversely affects the wild animals, forest and the biodiversity are complied with.

Plethora of ifs and buts

It has not been a smooth ride for the Act. Although it was approved by the parliament unanimously, it has met with severe criticisms from various corners of the country. Most of it coming from the wildlife groups across the nation. The uproar has been so much that presently the Act is facing at least five petitions against it in various courts. In a hearing on March 28, 2008 The Supreme Court directed that notice be issued on two petitions filed by wildlife organization attacking the constitutionality of the Act. Besides this, cases on the issue are pending in the Bombay High Court, Madras High Court (two cases), Andhra Pradesh High Court and Kolkata High Court. The Supreme Court petition has been filed on behalf of four organizations[6]. Apart from the wild life concern, there are various loopholes in the present Act, it not only threatens the forest but also does not lives up to the said purpose.

The provision for the eligibility of the claimants, states the giving of the right to the schedule tribe. Now, this excludes other traditionally forest dwelling communities that are equally poor; and are like the ST’s, discriminated against, but are either non-tribal or have not had been scheduled or notified as tribes in the state in question.

Regarding the eligibility that the claimants are supposed to have been living in the said area from 25^th October 1980, the problem here is that it is difficult to obtain proof of their occupation. Even if the person has a proof of staying in a particular area how will they show their continuous stay? Many a time’s displacement of people occurs due to large scale eviction, which is not under their control.

The Bill is also parsimonious in the land rights that it confers on these limited right-holders; it restricts the land to the actual area under occupation or 2.5 hectares for every nuclear family, whichever is less. This is against the principle of the Right to Equality since much higher land ownership is permitted under land ceiling legislation in different States. The Act provides ownership of 50 million hectare of land to almost 80 million tribal people. This would have a huge impact on the environment and push India in becoming one of the world’s highest emitters of green house gases.[7]

There has been a mention of a monitoring committee. There is surely going to be no transparency and the evils of beurocracy will creep in. The Act grants arbitrary power to the central government.

Rule 4.8(b) states that the land granted to dwellers of revenue villages, created out of forest villages or such settlements which are located in deep interiors of such forest land shall be used for ‘bona fide livelihood activities’ and shall not be put to ‘ecologically undesirable commercial use’ in any form. Now the problem here is who is competent enough to know what the above mentioned terms really mean? Who would be designated to define the terminology? And if it is still not clear then does the forest department get the right to do so?

Rule 5(2) states that the Gram Sabha may seek help from the forest department or other local authorities for implementing its norms. But the provision at no point says that the Gram Sabha has the power to override the decision of the forest department. This negates the principle of people management of forests

Rule 9(6) states that the Forest Rights Committee would prepare and authenticate a map with the concerned revenue and forest authorities delineating the area of such recommended claim with recognizable land marks. This provision contradicts the Act itself which says that the gram sabha would have the power
There has been always a debate over the extinction of tigers in India. Wildlife conversationalist fears that this Right would see the end of tigers in India. Poaching would become very much prevalent. It would be impossible to keep a check on it. The ‘tiger lobby’ believes that the only way to save tigers is by emptying their habitat of people (in most cases tribals) residing there. With this Act, it would become impossible to relocate them

The Recommendations

A Joint Parliamentary Committee (JPC) was constituted to look into the issue in a comprehensive manner, and to come up with recommendations for the government to consider. The recommendations put forth by the joint parliamentary committee are noteworthy to be mentioned since because of these recommendations the left supported the bill.

The extension of the cut-off date to December 2005,
Doing away with the land ceiling completely,
Extending the legislation to include all forest dwellers

The recommendation also suggested in making the Gram Sabha more powerful by countering the power given to the forest department by the Act. The Gram Sabha was to be vested with the responsibility and authority for settling land rights of forest dwellers. The Act now mandates that Panchayati Raj officials (sarpanchas etc.) would be part of the process along with officials of the forest department. This is a significant dilution of community control originally envisaged.

Also, now, gram sabha approval for forestland diversion and land acquisition is not mandatory. The Act in its current form does not give paramount control over forest resources to forest dwelling communities. In other words, the Act has provided loopholes for continued mafia and corporate control over forest land resources. Forest dwellers do have a right to use and sell forest produce – however, the definition of forest produce does not include crucial products like fish, leaves, fuel wood and stone.

Blast from the past

Jhabua and the district of Khargone, Badwani in west Nimar had forests as good as the upper reaches of the Narmada. Two leaders supported a movement which encouraged the Bhils (local tribe) to encroach on forest land. That led to massive deforestation in the area, and government, in an act of abject surrender then settled the land with the encroachers. Jhabua now epitomizes man-made draught, and it is an ecological disaster. In west Nimar there is no water to drink, no fodder for cattle, no fuel wood for poor, and the agriculture on degraded land is not enough to the local people. There is extensive seasonal migration in search of jobs, and there is abject poverty[8]. A group Vanshakti, fears that this might happen to the rest of the country, due to the implementation of the Act.

The positive outlook

Although the act has been agonizing to various sectors like the forest department, the various NGO’s etc it cannot be said that the act is of no good. The tribals, the weaker section of our society are going to benefit from it in a lot of ways.

The Act recognizes the right to homestead, cultivable and grazing land, and to use products which are non-timber in nature. The tribals have been also called encroachers, who have illegal possession of the forest land. But with this Act, the tribes will become legal heads of their possession. It rehabilitates them. It has also been mentioned that now if any developmental processes have to happen in or around the Protected Area, it would require peoples consent.

One of the most endearing facts of the Act is that it not only prescribes certain rights to the people but also they have been assigned with certain duties. This not only restricts the chances of misusing their rights but also make them more aware of protecting wildlife and biodiversity. The Act also says that the forest areas under where they are going to live will now be called community forest resource, and forest dwellers can act decisively in conserving those resources.

Conclusion

The most disturbing feature of the Act is that it is susceptible to interference by the judiciary and by other authorities. Section 15 of the Act states, this Act “shall be in addition to and not in derogation of any other law in force.” In other words, this provision may lead to a bizarre situation - though forest dwellers will be provided land rights, they might still not be able to exercise their right over their land – since this right will be subject to the provisions of the Indian Forest Act! Also, the judiciary can withdraw the rights provided by the Act. The solution for this is obviously to put the Act under the Ninth Schedule. However, this will probably not happen since the Schedule itself is under scrutiny. Ever since the Act has been passed, the UPA government, and the CPI(M) too, have been patting themselves on the back – claiming it as a major victory for tribal rights in the country. But the Act has failed in fulfilling even the limited agenda of legitimising and providing land rights to forest dwellers; in a major betrayal, the door has been left wide open for takeover of forests by mining corporates, timber mafias and the like.[9]

Despite the above-mentioned provisions, the fears of wildlife conservationists are partially justified. Responsibilities and duties regarding conservation are applicable to all activities except those that are permitted as rights. Does this then exclude rights that could be ecologically destructive? The gram sabha is given the duty to stop any activity adversely affecting wildlife, forest, and biodiversity, but can it over-ride granted rights? Ambiguity on this count needs to be removed. Additionally, it is not clear if the Sub Divisional Committee and the District Committee are to consider ecological implications. A clearer system of checks and balances is needed. Indeed it is needed even for the current system in which the Forest Department is vested with exclusive authority over forests and wildlife. Only a fully transparent and open system of functioning is a guarantee to reducing abuse of power by any sector while approving or rejecting the rights proposed by gram sabhas.

The Act is a mixed bag. While a number of provisions will lead to better conservation and enhanced livelihood security in certain situations, other provisions have a strong potential for damage to forests, wildlife & protected areas and increased livelihood insecurity. The final decision lay with the apex court.

Devina Awasthi

Smith Chandra

[1] Conservation and Livelihoods, http://www.kalpavriksh.org

[2] Legislation on environment, forest and wildlife, from ministry of environment and forest

[3] The Scheduled Tribes and Other Traditional Forest Dwellers Act, 2006

[4] chapter II section 3 of the Act

[5] chapter III section 5 of the Act

[6] Forest Rights Act under siege in courts April 24 2008, http://www.business-standard.com

[7] The Hindu Business Line –December 8 2007http://www.thehindubusinessline.com/2007/12/08/stories/2007120850010800.htm

[8] http://www.vanashakti.in/

[9] Forest Rights Act 2006 – Misplaced Euphoria, http://www.cpiml.org/liberation

WORD MARK VIS-À-VIS LABEL MARK

2011-02-10T23:13:00.000+05:30

The whole of science is nothing more than a refinement of everyday thinking.

-Albert Einstein

The human mind imagines things beyond its own comprehension. When the creator of any idea expresses this idea in a tangible form, it becomes a work of art, literature, invention, so on and so forth. There is the need to recognize the right of creators to their work, the right to express themselves and the right to be economically and emotionally profited by such work.

Intellectual property rights are the recognition of rights in an individual’s creation which is inadvertently deemed to be his property. It is the most innovative or revolutionary law, which focuses on human intellect or ideas. Copyright, patents, designs, trademarks and protection against unfair competition form the traditional core of intellectual property.

For the purposes of this write-up, it would be important to explain about trademarks. Trademark law governs the use of a device including a word, phrase, symbol, product shape, or logo by a manufacturer or merchant to identify its goods and to distinguish those goods from those made or sold by another. The concept of mark is not a new one. For centuries, merchants and manufacturers across the world have labeled their products with signs of one kind or the other to distinguish them from those of their competitors. The modern concept of the marks came into light in the 18^th century as a result of the increased possibility of commerce and communication. In the year 1876, the Bass Red Triangle was registered under the Trade Mark Registration Act 1875, which happens to be the first ever trade mark. A mark is infringed when another person uses a mark so as to cause confusion as to the source or sponsorship of the goods or services involved. As explained above a trademark may be of many kinds. Herein word marks and label marks are discussed in detail, also bringing out the basic difference between the two kinds.

Word Mark

A word mark is a type of trade mark where the owner of the trademark is only claiming rights in the words, letters, numbers or slogan. In other words; in a word mark, all appearances and use of the words are protected. If a word shows sufficient distinctive character or is not affected by other grounds for refusal, it qualifies for a valid word mark. In the Trade Marks Act, 1999, word mark would have to show distinctive character, to qualify as trade mark. In Vishnu Cement (P) Ltd. 1998 PTC(18) 130, the Chennai High Court refused to register the word VISHNU being a very common personal name which had not become distinctive.

Invented words or fanciful words are preferred for registration as word marks as they are considered distinctive ab initio and do not have to prove their distinctiveness. In Eastman Photographic Materials v. The Comptroller General (1898) 15 RPC 476 (HL), it was held that if a word was invented, it could be registered as word mark per se. some examples of word mark are COCA- COLA, FEDEX, GOOGLE etc. In another pending decision of Hilton v. Hilltone, the plaintiff hotel Hilltone feared that if the defendants are allowed to commence business in India and start hotels under the name Hilton, it will lead to taking of an undue advantage of the plaintiff’s reputation which will result into irreparable financial loss and mental agony to the plaintiff. Herein, the word Hilton is in controversy since it’s a very famous word mark.

Label Mark

Label mark in India is more commonly known as the device mark. It means to use a devise along with a word in such a manner that the word and the devise used would create a trademark which is distinctive in nature. The point to be noted is that the word used alone would not make it a distinctive label mark. There is the mandatory requirement of the word to be in a particular style. Any other mode of writing it would not qualify it to be a label mark. For eg: the word Airtel if written in normal font without its characteristic background and font colour or size would not qualify it to be a label mark. However the manner in which Airtel advertises itself with its red background and font type makes it a label which is unique. Another example for label mark is the sticker of Smirnoff Vodka. It receives protection under the trademarks act. The common examples for such marks are Java which comes with the device of a stylized “S” above it.

In the case of British India Corpn. Ltd v. Khariti Ram, [1] the plaintiff is the registered proprietor of the mark KASHGIRI with the device of a lamb. This is one example of a label mark. Another could be illustrated in the case of Chorion Rights Ltd. v. Ishan Apparel,[2] where the use of the mark NODDY with a boy's head on the Y for children's apparel by the defendant was held to be a case of infringement, since the word NODDY already has a global trademark on it, just for the use of the word. The device of the boy with the word NODDY is an example of label mark and the word NODDY alone is a word mark.

The basic difference between word mark and label mark is that word mark is the graphical representation of a word in a particular style. Thus if the word Google is written in any other form it will not get word mark. In label mark there is the requirement of an added device which will make the word distinct in its usage. Even the absence of a word would not prevent it from getting a label mark if such device can add distinctiveness. These devices could include colour combinations, pictures, logos, particular font style, font size etc.

Other distinctions drawn between word marks and label marks are that no figures are required for pure word marks. If colours are claimed, protection is, in principle, restricted to the filed colour combination. A word mark application is made in capital letters. Another kind of trademark that is similar to these two is the combined mark, which is a combination of both device and word. Technically speaking, a corporate logo is a combined mark as the wording is combined with a pictorial element in that a specific typeface is selected or a device is added. In the case of a device mark, the symbol is sufficient in itself as the device is represented without any textual content.

[1] 2003 PTR 25.

[2] IA 8042/2009 in CS (OS) 1154/2009.

Surrogacy...Is it your right??

2011-02-10T21:58:00.001+05:30

Jeremy Bentham looked upon ‘law’ as an instrument for securing the “greatest good of the greatest number”. This project seeks to address one such question with regard to the issue of surrogacy in India and, in the process, analyzes its various dimensions in order to ascertain the basis which makes it imperative for the legislature to pass a law to explicitly address the issue. In its quest, the project endorses the need for legalization of surrogacy from the perspective of positive fundamental right of procreation guaranteed under Article 21 of the Indian Constitution and the compelling state interest in maintaining the ‘rule of law’.

The world's second and India's first IVF (in vitro fertilization) baby, Kanupriya alias Durga was born in Kolkata on October 3, 1978 about two months after the world's first IVF boy, Louise Joy Brown born in Great Britain on July 25, 1978. Since then the field of assisted reproductive technology (ART) has developed apace. The growth in the ART methods is recognition of the fact that infertility as a medical condition is a huge impediment in the overall wellbeing of couples and cannot be overlooked especially in a patriarchal society like India. A woman is respected as a wife only if she is mother of a child, so that her husband's masculinity and sexual potency is proved and the lineage continues. The problem however arises when the parents are unable to construct the child through the conventional biological means. Infertility is seen as a major problem as kinship and family ties are dependent on progeny. Herein surrogacy comes as a supreme savior.

SURROGACY

The word ‘surrogate’ has its origin from a Latin word ‘surrogatus’, meaning a substitute, that is, a person appointed to act in the place of another. Hence a surrogate mother is a woman who carries a child on behalf of another woman, either from her ovum or from the implantation in her womb of a fertilized egg from other woman.

Black’s Law Dictionary, defines surrogacy as the process of carrying and delivering a child for another person. The Britannica defines ‘surrogate motherhood’ as the practice in which a woman bears a child for a couple unable to produce children in the usual way. The Report of the Committee of Inquiry into Human Fertilization and Embryology or the Warnock Report (1984) termed surrogacy as the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth.

A standard definition of ‘surrogacy’ is offered by the American Law Reports[1] in the following manner:

“…a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights subsequent to the child's birth.”

According to another classification, surrogacy can be traditional, gestational and donor surrogacy. Traditional surrogacy involves the artificial insemination of the surrogate mother by using the sperm of the intended father. Gestational surrogacy, on the other hand, involves the creation of an embryo in a Petri dish and its implantation into the womb of the surrogate who carries it to the term. Lastly, in donor surrogacy there is no genetic relationship between the child and the intended parents as the surrogate is inseminated with the sperm, not of the intended father, but of an outside donor.

RIGHT TO REPRODUCTION- A CONSTITUTIONAL RIGHT

1. Article 16(1) of the Universal Declaration of Human Rights 1948 says, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and start a family”.

2. The Judiciary in India has recognized the reproductive right of humans as a basic right. Vide B. K. Parthasarthi v. Government of Andhra Pradesh[2], the Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an individual as an aspect of his “right to privacy” and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma[3], which characterised the right to reproduce as “one of the basic civil rights of man”.

3. In Javed v. State of Haryana[4], though the Supreme Court upheld the two living children norm to debar a person from contesting a Panchayati Raj election it abstain from stating that the right to procreation is not a basic human right.

Now, if reproductive right gets constitutional umbrella, surrogacy which allows an infertile couple to exercise that right also gets the same constitutional protection.

3.1. POSITION OF ARTIFICIAL REPRODUCTIVE TECHNIQUE IN UK, USA AND AUSTRALIAN LEGAL SYSTEM

In England, based on the recommendations of ‘Warnock Committee,’[5] the Surrogacy Arrangements Act, 1985 was brought in to force.[6] Under this Act surrogacy arrangements are made legal and the Act prohibits advertising and other aspects of commercial surrogacy. The Act prohibits giving or taking of money or other benefit (other than expenses reasonably incurred) in consideration of the making of the order or handing over of the child.[7]

In the United States of America also, commercial surrogacy seems prohibited in many states. In the famous Baby M case[8], the New Jersey Supreme Court, though allowed custody to commissioning parents in the “best interest of the child”, came to the conclusion that surrogacy contract is antagonistic to public policy. It must be noted that in the US, surrogacy laws are different in different states. In USA, Gestational Surrogacy Act, 2004,

deals with this aspect. The purpose of this Act is to lay down consistent standards and procedural safeguards for the protection of all parties involved in a gestational surrogacy contract in this State and to confirm the legal status of the new born as a result of these contracts. These standards and safeguards are meant to facilitate the use of this type of reproductive contract in accord with the public policy of the State. Later Johnson v. Calvert

[9], the

American judiciary took a libertarian approach. Through this case the Supreme Court extended constitutional umbrella to surrogacy controls and gave them a legal validity. The court held that the surrogacy contract involved free, informed and rational choice by a woman to use her body. In Surrogacy Parenting Associate v. Commonwealth of Kentucky

[10],the court propounded the intension test for the determination of natural mother.

In re Marriage of John A.[11], the court held that even though the commissioning parents are not biologically related to the child, they are still her lawful parents given their initiating role as the intended parents in her conception and birth. Even after separation of married coulple who opted for artificial insemination, the husband would still continue to be the father of the of the offspring thus produced as held in another case of People v. Sorensen.[12] In Lamaritata v. Lucas[13] the court held, a person who gives sperm for a woman to conceive a child by artificial insemination is not a parent. Thus, the sperm donor has no legal rights.

As to the statutory response, different states of America have responded through legislation to the question of legalization of surrogacy. Some states[14] took a liberal approach and some totally shun their eyes towards the validity of surrogacy contracts making them completely illegal[15]. Surrogacy legislation in New Hampshire requires judicial preauthorization of all surrogacy contracts subject to three conditions viz. informed consent by parties, completion of psychological counseling and evaluation, absence of unconscionable terms in the contract and orientation towards best interests of child.

In Australia, Kirkman sisters’ case[16] sparked much community and legal debate and soon states in Australia attempted to settle the legal complications in surrogacy. Now in Australia, commercial surrogacy is illegal, contracts in relation to surrogacy arrangement is unenforceable and any payment for soliciting a surrogacy arrangement is illegal.

LEGALIZATION OF SURROGACY IN INDIA

In Kolkata, litigation for legal custody of the first child born through surrogacy agreement has already commenced. [17]As costs of medical treatment are low in India, it is proving to be an attractive hub for foreigners to procure benefits of medical tourism; especially surrogacy[18].Commercial surrogacy is emerging and doctors and surrogate mothers are engaging into profiteering as evident from numerous newspapers accounts of surrogate women citing money as the main reason for engaging in such arrangements. Women are being compelled by their in-laws to engage in this emerging “business” and the not-so distant dreams of a high standard of living, luxuries and a secure future for their children are driving women to make money through surrogacy.[19]The status-conscious lower middle class is resorting to surrogacy for fulfilling its material and financial needs.

4.1. LAW COMMISSION REPORT

To legalize surrogacy, The Law Commission of India has submitted the 228th Report on “Need for Legislation to Regulate Assisted Reproductive Technology Clinics As well As Rights and Obligations of Parties to a Surrogacy.” The following observations had been made by the Law Commission[20]:

· Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. However, such an arrangement should not be for commercial purposes.

· A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.

· A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

· One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

· Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

· The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

· Right to privacy of donor as well as surrogate mother should be protected.

· Sex-selective surrogacy should be prohibited.

· Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor which the law has to address. Also, commercialization of surrogacy is something that has been issue in the mind of the Law Commission. However, this is a great step forward to the present situation.

4.2. FORM OF SURROGACY

Now the question arises that what form of surrogacy should be adopted? The most appropriate choice is non-commercial surrogacy as its kin commercial surrogacy which converts surrogacy into a business activity seemingly falls foul of Article 23 of the Constitution of India[21]and Section 23 of The word ‘traffic’ connotes an element of trade i.e. buying and selling and commercial surrogacy being equivalent to baby selling certainly involves traffic in children. In contrast, non-commercial surrogacy agreements, providing only for ‘compensation’ equivalent to reasonable expenses incurred by the surrogate mother, pass the touchstone of public policy considerations under section 23 the Indian Contract Act, 1872[22]. Article 23 prohibits trafficking in human beings while Section 23 makes agreements contrary to public policy unenforceable embracing within its fold such contracts which are likely to deprave, corrupt or injure the public morality.[23]

According to the constitution, the ambit of right to life is wider than mere ‘animal existence[24]’ and goes on to include all aspects of life which make it worth living. Procreative liberty and right to reproduction have been recognized as a part of right to life[25]specifically under Article 21 of the Constitution.[26]As opposed to the negative right of freedom from State interference, Article 21 has a ‘positive’ content encompassing the quality of life and ‘the right to carry on such functions and activities as constitute the bare minimum expression of the human self.’[27]The strongest negative claim of infertile people would be the right to remain childless, without forced medical treatment or even pressure to seek treatment in the form of social ostracism or ridicule. But if the natural process of family life and reproductive activity does not result in pregnancy, the claim regarding assisted reproduction through third part intervention necessarily becomes positive obligating the State to ensure facilitation of this right through legislation. Though the State has no obligation to fund or provide facilities to the willing couples, it does have an obligation to make the legal obligations certain and protect weaker parties against exploitation.

SUGGESTIONS AND CONCLUSION

5.1. SUGGESTIONS

Surrogacy agreements are to be treated on par with other contracts and the principles of the Indian Contract Act 1872 and other laws will be applicable to these kinds of agreements.
The commissioning parents or parent shall be legally bound to accept the custody of the child irrespective of any abnormality that the child may have, and the refusal to do so shall constitute an offence.
A surrogate mother shall relinquish all parental rights over the child. The birth certificate in respect of a baby born through surrogacy shall bear the name(s) of genetic or intended parents/parent of the baby.
The child born to a married couple or a single person through the use of ART shall be presumed to be the legitimate child of the couple or the single person, as the case may be.
If the commissioning couple separates or gets divorced after going for surrogacy but before the child is born, then also the child shall be considered to be the legitimate child of the couple.

5.2. CONCLUSION

Surrogacy involves conflict of various interests and has an impact on the primary unit of society viz. family. Non-intervention of law in this emotion yet complicated issue will not be proper at a time when law is to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. At the same time, prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational. Active legislative intervention is required to facilitate correct uses of the new technology i.e. ART and relinquish the cocooned approach to legalization of surrogacy adopted hitherto. The need of the hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial ones.

[1] American Law Reports, Validity and Construction of Surrogate Parenting Agreement, 77 A.L.R. 4 70. (1989).

[2] AIR 2000 A. P. 156

[3] 316 US 535

[4] (2003) 8 SCC 369

[5] Report of the Committee of inquiry in to human fertilization and embryology (Chairman-Dame Mary Warnock), Her Majesty’s stationery office, 1984

[6] The Surrogacy Arrangements Act 1985 in England is an Act to regulate certain activities in connection with arrangements made with a view to women carrying children as surrogate moth

[7] Sec. 30 of Human Fertilization and Embryology Act 1990 (UK) provides for Parental orders in favour of gamete donors.

[8] 537 A.2d 1227

[9] 5 cal.4^th 84, 19 cal.Rptr.2d 494, 851 P.2d 776

[10] 704 s.w. 2d 209(February 06,1986)

[11] 61 Cal.App.4^th 1410 (1998)

[12] 68 Cal.2d 280 (1968)

[13] So.2d 316 (2002)

[14] Kentucky, Louisiana, Nebraska, and Washington, on the other hand, have taken a less restrictive approach, passing legislation that voids only those surrogacy contracts that provide for compensation to the surrogate. In contrast, Florida, New Hampshire, and Virginia have adopted the minority approach by making them legal and enforceable but they prohibit commercial surrogacy, with an exception of expenses incurred as a result of pregnancy and childbirth.

[15] New York, North Dakota and Utah, the legislatures have taken a blanket approach, deeming all surrogacy contracts to be void and unenforceable.

[16] In Victoria, Linda Kirkman agreed to gestate the genetic child of her older sister Maggie(1988).

[17] IVF Son for a Single Father, BBC News, 4 ^thOctober, 2005, Available at (last visited on 24^th August 2010).

[18] Medical Tourism Booms in India, Economic Times, February 7, 2006.

[19] Wanna Rent a Womb, Come to Anand, Times of India, February 11, 2006; See also Surrogate Mothers Lined Up in Gujarat, The Hindu, March 2, 2006; Outsourcing a Womb, Hindu Business Line, April 6, 2007.

[20] http://lawcommissionofindia.nic.in/

[21] Article 23- Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

[22] Section 23- The consideration or object of an agreement is lawful, unless- the Court regards it as immoral, or opposed to public policy.

[23] State of Rajasthan v. Basant Nahata AIR 2005 SC 3401.

[24] P.Rathinam v. Union of India 1994 SCC(3)394.

[25] Skinner v. Oklahoma,316 U.S. 535 (1942). .

[26] S.Amudha v. Chairman, Neyveli Lignite Corporation, (1991) IILLJ 234 Mad; B.K. Parathasarthi v. Government of A.P., 2000(1) ALD199.

[27] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746; C.E.R.C. v. Union of India, AIR 1995 SC 922; Kapila Hingorani v. State of Bihar (2003) 6 SCC 1; Mohini Jain v. State of Karnataka AIR 1992 SC 1858.

SEX..before Marriage

2010-04-01T00:06:00.001+05:30

Recently the Apex court of the country has held that pre marital sex is not a crime at all. If two people want to live together there is no law to hold it as a crime. Now comes the question as to what is crime? Then obviously the answer lies that if anything done against the established laws of the land then that is crime. Pre marital sex is a reality of the new generation. Talking about sex is no more hindered as apologetic. Sex is a part of our life and it is the choice of an individual to do it when one wishes to. Yes lawfully speaking sex before marriage is not a crime at all but it is, in the face of morality.
Morality can be defined in many ways altogether. Some says it’s the right thing to do, or not to do and things against our conscious. The fact is that morality is just an excuse just the way to groom your ward the way one wishes to. We made the society, and in turn the society made the code of ethics. Morality is hypocritical. It is fine if a man who lost his wife is married again but the society would shy away with the thought of remarrying of a widow. It is hypocritical to believe in god but still ignore love between people of the same sex. Indian morality is of course a bunch of hypocrites.
Personally speaking I am not the one who believes in sex before marriage, but that has nothing to do with the fact of ethics. I just feel that one should be a one man women.
Sex is something private and should not be questioned. As adults we just need to remember the consequences of the steps we take and that’s all. Anything done with the feeling of love and mutual trust passes the test of morality. We just need to perhaps look inside ourselves and ask if its right or wrong, ask ourselves and not the society. It is a presumed thought that if a girl practices sex before being married then she is not a good girl, even if she is standing on her feet, but the same if applied to a boy the common prognosis applies that after all ‘he is a boy.’ A boy somehow doest has to pass the morality test it’s always the girl, right from the time of sita’s Agnipariksha.
So now what is supreme is it love or ethics? It’s the individual who triumphs. No society or the legislature needs to transcript what is ethical and what is not. It is a personal choice and not the choice of the society. One needs to also realize that with the new generation even the society changes. Now love marriages are not frowned upon or even the birth of a girl. And soon the ethics would change as well since the catalyst is very much the present generation.

Why is it that, as a culture, we are more comfortable seeing two men holding guns than holding hands?

2010-03-31T10:22:00.000+05:30

The coming out of sexuality is a significant development of post-liberalization India. Provoking outrage in some and getting approval from others, sexuality today is bitterly contested domain. It is the power of a government to define what is legal and illegal. If you look at section 377 of the IPC it makes a law that is unacceptable to almost 2.5 million Indians. The relevant section reads:
‘Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.’
It makes anything other than heterosexuality a crime. These 2.5 million people referred above are ‘homosexuals’. The question is whether a state can question a person’s sexuality and why define it illegal, because it is unnatural? What defines the order of nature? And why do we, the society shy away from it? There is increasing demand from activists to decriminalize homosexual relationships. On September 2006, Nobel Laureate Amartya Sen and acclaimed writer Vikram Seth came together with scores of other prominent Indians in public life to publicly demand this change in the legal regime. The open letter demands that 'In the name of humanity and of our Constitution, this cruel and discriminatory law should be struck down.’
A person’s private space should not be encroached, unless and until it harms the society. How do these homosexuals harm the society? In fact the state has time to frame laws which would induce vote bank, but not work on that section of the population which has been targeted by so many social obligations. Homosexuality is not something which has erupted suddenly in our Indian shore or a product of western thoughts as some may think. It has been in the country since centuries. The Manusmriti, which lists the oldest codes of conduct that were proposed to be followed by a Hindu, does include mention of homosexual practices, but only as something to be regulated. The fact that Ancient Hindu scriptures, such as Rig Veda mentions sexual acts between women or the carvings and depictions in the famous temples of Khajuraho, Konark, Puri are proof that homosexuality is not a western trend picked up by few Indians.
Such a forced control over a man’s sexuality is totally uncalled for. It’s a man’s personnel choice and one should not interfere in it. Interference should only be entertained when ‘force’ is present. But this seems not too accepted as well. India must march in step with other democracies in removing legal restrictions on sexual orientation.

In 2008 Additional Solicitor General P P Malhotra said: "Homosexuality is a social vice and the state has the power to contain it. [Decrimilazing homosexuality] may create breach of peace. If it is allowed then [the] evil of AIDS and HIV would further spread and harm the people. It would lead to a big health hazard and degrade moral values of society."
Over here Mr. P P Malhotra stated that homosexuality is a social vice. Why? Because it is unnatural? By natural one means a power to procreate, as explained in one judgement ‘the natural object of sexual intercourse is that there should be the possibility of conception of human beings’. But is procreation always necessary? He further states that it would result in ‘breach of peace.’ In fact the only reason why so many homosexuals remain quite about their sexuality is that they fear of being shunned away by the society and also being traumatized.
Before being a man or a woman we all are humans. Section 377 is against the basic principles of human rights. The Human Right of the homosexuals are routinely violated by police, families and other state/non-state bodies and access to redressal mechanisms are hindered by their criminal status. As our laws recognize only heterosexual marriages, the right to marriage and family is denied to same-sex couples and transsexuals. The universal law of Human Rights states that social norms, tradition, custom or culture cannot be used to curb a person from asserting his fundamental and constitutional rights.
The Law Commission of India in its 172nd report (on reviewing rape laws) and recently the Planning Commission of India have recommended the repeal of IPC 377. Does our culture and tradition teach us to become inhuman to that section of people who bear a will to be in a relationship with people of the same sex? In addition to all of this our laws do not recognize even sex-change.
The government saying that Indians are not tolerant regarding homosexuality is not a ‘just’ excuse. If it is legalised, public awareness would follow. The India Today-AC Neilsen Org Marg survey 2008 consisting of 5,353 men and women, might put the government in a jeopardy regarding the arguments over section 377. 16% of the men and 6% of the women surveyed were homosexuals. Plus one out of five men and one out of ten women approve of homosexuality.
Slowly but surely homosexuality would be accepted. A state’s major job is to work for the people, so don’t these homosexuals deserve a chance? Laws and its governance are made for the society and section 377 is against the basic fundamental Right to life. As a whole, States right to interfere in a persons choice of sexuality is encroachment of a persons privacy, when there is not been a case to highlight if the very existance of homosexuality is lethal to the Indian society

You know, gay, lesbian, bisexual, transgender - people are people

2010-03-30T23:30:00.000+05:30

How often do we sit and question our gender or sexual identity? Is it always the same as the biological sex that we are born in? Can it be independent entity, irrespective of our biological sex? Most of us assume, for lack of further information that our overall sexuality that includes our sex, gender, sexual orientation and sexual behavior are all determined at some point through some ‘natural’ genetic intervention during our birth and there is nothing one can do about it. We are taught to believe in strict binaries of male and female and the separate social roles associated with both. Today when we see a television advertisement, where our hero denies a young pretty woman’s courtship, just as he realized that this attractive woman used to be a man. Oh! And everyone chuckles. Well, it’s not that funny. Trans sexuality as a phenomenon has gained very little visibility or knowledge in our society – precisely why is it so easy for us to distance ourselves and laugh at it. Our society in fact contains one of the most visible transgender cultures in the world – the ‘Eunuch’ (Hijra) Community. Eunuchs might have an accepted place in Indian society, but it is a place pretty much at the bottom of the social heap – making them not just a sexual but also a highly deprived social minority.
Transgender communities have existed in most parts of the world with their own local identities, customs and rituals. They are called baklas in the Philippines, berdaches among American Indian tribes, serrers in Africa and hijras, jogappas, jogtas, shiv-shaktis and aravanis in South Asia. The hijra community in India, which has a recorded history of more than 4,000 years, was considered to have special powers because of its third-gender status. It was part of a well-established `eunuch culture' in many societies, especially in West Asia, and its members held sanctioned positions in royal courts. Hijras trace their origins to myths in the Ramayana and the Mahabharata. Rama, while leaving for the forest upon being banished from the kingdom for 14 years, turns around to his followers and asks all the `men and women' to return to the city. Among his followers the hijras alone do not feel bound by this direction and decide to stay with him. Impressed with their devotion, Rama sanctions them the power to confer blessings on people on auspicious occasions like childbirth and marriage, and also at inaugural functions. This set the stage for the custom of badhai in which hijras sing, dance and confer blessings. But today, keeping in mind the pathetic condition of them one can say that this community actually needs the blessings of Lord Rama more than anyone so that at least they can subsist in the society with proper dignity, respect and most of the most important identity.
Hijras (Eunuchs) in India have virtually no safe spaces, not even in their families, where they are protected from prejudice and abuse. The PUCL(K) Report on Human Rights Violations against the Transgender Community has documented the kind of prejudice that hijras face in Bangalore. The report shows that this prejudice is translated into violence, often of a brutal nature, in public spaces, police stations, prisons and even in their homes. The main factor behind the violence is that society is not able to come to terms with the fact that hijras do not conform to the accepted gender divisions. In addition to this, most hijras have a lower middle-class background, which makes them susceptible to harassment by the police. The discrimination based on their class and gender makes the hijra community one of the most disempowered groups in Indian society. The systematic violence that hijras face is reinforced by the institutions such as the family, media and the medical establishments and is given legitimacy by the legal system.
The roots of contemporary violence against the hijra community can in fact be traced back to the historical form that modern law in colonial India has taken. It took the form of the enactment of the Criminal Tribes Act, 1871 which was an extraordinary legislation that even departed from the principles on which the Indian Penal Code was based. To establish an offence under the India Penal Code, the accusations against the accused has to be proved beyond reasonable doubt in court of law. But certain tribes and communities were perceived to be criminals by birth, with criminality being passed on from generation to generation. It fitted in well with the hierarchical Indian social order, in which some communities were perceived as unclean and polluted from birth. The link between criminality and sexual non-conformity was made more explicit in the 1897 amendment to the Criminal Tribes Act on 1871, which was sub-titled, ‘An act for the Registration of Criminal Tribes and Eunuchs’. Under this law, the local government was required to keep a register of the names and residences of all eunuchs who were "reasonably suspected of kidnapping or castrating children or committing offences under Section 377 of the Indian Penal Code". Any eunuch so registered could be arrested without warrant and punished with imprisonment of up to two years or with a fine or both. The law also decreed eunuchs as incapable of acting as a guardian, making a gift, drawing up a will or adopting a son.
Regarding Civil law they are also not spared here. The hijra community is deprived of several rights under civil law because Indian law recognizes only two sexes. This means that hijras do not have the rights to vote, marry and own a ration card, a passport or a driving license or claim employment and health benefits. In north and central India, hijras, who have contested and won elections to local and State bodies, are now facing legal challenges. In February 2003, the Madhya Pradesh High Court struck down the election of Kamala Jaan as the Mayor of the Municipal Corporation of Katni. The court's logic was that since Kamala Jaan was not a woman, she could not contest the seat, which was reserved for women. Lawyer Pratul Shandilya, who is arguing Kamala Jaan's case, said: "I have already filed the Special Leave Petition (SLP) before the Supreme Court, and the court has also granted leave in the petition." The High Court verdict came despite a direction from the Election Commission (E.C.) in September 1994 that hijras can be registered in the electoral roles either as male or female depending on their statement at the time of enrolment. This direction was given by the E.C. after Shabnam, a hijra candidate from the Sihagpur Assembly constituency in Madhya Pradesh, wrote to the Chief Election Commissioner enquiring about which category hijras were classified under.
The law that is used most to threaten the hijra and kothi communities, as well as the homosexual community in India, is Section 377 of the IPC, which criminalizes "carnal intercourse against the order of nature with any man, woman or animal" even if it is voluntary. In effect, it criminalizes certain kinds of sexual acts that are perceived to be `unnatural'. The law, which has its origin in colonial ideas of morality, in effect presumes that a hijra or a homosexual person is engaging in `carnal intercourse against the order of nature", thus making this entire lot of marginalized communities vulnerable to police harassment and arrest. The Immoral Traffic Prevention Act (ITPA) of 1956 (amended in 1986), whose stated objective is to criminalize brothel-keeping, trafficking, pimping and soliciting, in reality targets the visible figure of the sex worker and enables the police to arrest and intimidate the transgender sex-worker population.
According to the two main diagnostic systems used in the Indian medical establishment, transsexualism is defined as a `gender identity disorder'. The doctors usually prescribe a sexual reassignment surgery (SRS), which currently resorts to hormone therapy and surgical reconstruction and may include electrolysis, speech therapy and counseling. Surgical construction could include the removal of male sex organs and the construction of female ones. Since government hospitals and qualified private practitioners do not usually perform SRS, many hijras go to quacks, thus placing themselves at serious risk. Neither the Indian Council for Medical Research (ICMR) nor the Medical Council of India (MCI) has formulated any guidelines to be followed in SRS. The attitude of the medical establishment has only reinforced the low sense of self-worth that many hijras have at various moments in their lives.
With every single thing going against the Eunuchs; a notable amount of awareness has also been seen all over the world. Around the world, countries are beginning to recognize the rights of transgender people. In a landmark judgment (Christine Goodwin vs. the United Kingdom, 2002) the European Court of Human Rights declared that the U.K. government's failure to alter the birth certificates of transsexual people or to allow them to marry in their new gender role was a breach of the European Convention on Human Rights. It said that a test of biological factors could no longer be used to deny recognition legally to the change of gender that a transsexual had undergone. In New Zealand, in New Zealand Attorney General vs. the Family Court at Otahuhu (1994), the court upheld the principle that for purposes of marriage, transsexual people should be legally recognized in their re-assigned sex.
OF late the Indian hijra community has begun to mobilize themselves through the formation of a collective. Sangama, an organization working with hijras, kothis and sex workers in Bangalore, has played an important role by helping them organize and fight for their rights. Its services include organizing a drop-in centre for hijras and kothis, conducting a series of public rallies and marches, using legal assistance in case of police harassment, and establishing links with other social movements.
The organizations of the hijra community can be seen as constituting a larger movement of sexual minority groups in India. They are challenging the constitutional validity of Section 377 and are organizing a campaign questioning the government's stand that the law should remain. The discrimination and violence that hijras face show that it is high time that both the government and the human rights movement in the country begin to take this issue with the seriousness it deserves

legalizing prostitution

2010-03-30T22:41:00.000+05:30

Article 19(1) (g) of Indian Constitution guarantees that all citizens shall have the right “to practice any profession, or to carry on any profession, trade or business.” So, the moot question is why our country is way behind in legalizing one of the oldest professions known on this Earth. Yes, I’m talking about prostitution.

Prostitution is often said to be the oldest profession, and there's a lot of evidence this is true. Some researchers confirm that prostitution is indeed the most ancient profession, while others argue with it; however, everybody agrees that trading sex for money has existed for quite a while. According to Wikipedia, prostitution began in the 21st century BC in Near East, most likely as a religious custom, and was practiced by Greeks, Romans, China and other ancient civilizations. Now, as we have entered into the 21st century AD, prostitution is still a part of modern society. The fact speaks for itself: as there will always be a demand for the services that it provides, prostitution will exist in some form no matter what.

Many nations reconsidered prostitution as something necessarily evil and against the law by legalizing it. England, France, Germany, Denmark, Canada, and Israel are some of them. When we examine sex as a trade, the combination of philosophy, cultural precedence, religious influence and politics made each country select how to handle it in its own way. In Singapore, sex for money is open and commonplace. Denmark women can be legal prostitutes so long as it is not their sole means of income. Canada, France and Mexico allow it. Prostitutes must be contained within brothels in the Netherlands, unlike within England and Wales where prostitution is limited to individual providers. Israel, the historical stage for the Bible, allows it, too. Meanwhile, prostitution stays illegal in India.

Current Legal Status

The current laws in India that legislate sex workers are fairly ambiguous. It is a system where prostitution is legally allowed to thrive, but which attempts to hide it from the public. The primary law dealing with the status of sex workers is the 1956 law referred to as the Immoral Traffic (Suppression) Act (SITA). According to this law, prostitutes can practice their trade privately but cannot legally solicit customers in public. As long as it is done individually and voluntarily, a woman (male prostitution is not recognized in the Indian constitution) can use her body's attributes in exchange for material benefit. In particular, the law forbids a sex worker to carry on her profession within 200 yards of a public place. Unlike as is the case with other professions, sex workers are not protected under normal labour laws, but they possess the right to rescue and rehabilitation if they desire and possess all the rights of other citizens.

In practice SITA is not commonly used. The Indian Penal Code (IPC) which predates the SITA is often used to charge sex workers with vague crimes such as "public indecency" or being a "public nuisance" without explicitly defining what these consist of. Recently the old law has been amended as The Immoral Traffic (Prevention) Act or PITA.

In India, prostitution is illegal and comes under the Immoral Traffic Prevention Act, 1986. According to the Act, ''Any sexual intercourse outside socially-acceptable unions is regarded as prostitution. Procuring, inducing or taking persons for the purpose of prostitution is punishable with rigorous imprisonment of atleast three years, but not more than seven years, and a fine of Rs 2,000.''

Terming prostitution as illegal and an immoral blotch on society ignores the fact that there are near about 2 million prostitutes in India and a quarter of them are minors. They are at the mercy of an unscrupulous mafia which flourishes because of an absurd and outdated law.

Benefits of Legalization
Currently in India, our legal system penalizes prostitutes and their customers for what they do as consenting adults. Money is still spent on law enforcement efforts to catch prostitutes and their customers. Once caught, justice departments have to process these people through very expensive systems.
What are the end results? Police personnel and courtrooms are overburdened with these cases, having little or no impact on prostitution. The prostitutes and their customers pay their fines and are back to the streets in no time in a revolving door process. Catch and release may work for recreational fishing but it has no deterring affect on prostitution. Making prostitution legal will allow the act to be managed instead of ignored. Pimps and organized crime figures, who regularly treat their workers on subhuman levels, would no longer control women. In some countries, prostitute rings buy and sell women on the black market, force their women to comply through violence and create unhealthy working conditions. When prostitutes operate independently and in secret, many times they become abused by their own customers.
Legalizing prostitution would prevent underground prostitution that occurs today. When men want to pay for sex, they find prostitutes. These people work in massage parlors, escort services, dance bars and modeling. There are near about 2 million prostitutes in India. If we allow prostitution to remain hidden from view and basically invisible to the law as it is today, we allow a number of teens to be swept up into prostitution every year. When adult women decide to exchange money for sex, it is a personal choice open to them under the philosophy of a free, democratic society. When troubled minors who do not yet have the social survival skills decide to prostitute, they are often manipulated by opportunists who exploit these teens, typically leading to horrific ends. Legalizing prostitution will help prevent these instances through regulation.
Legalized, regulated prostitution has many benefits. Encounters can happen within controlled environments that bring about safety for both the customers and the prostitutes. Prostitutes would no longer be strong-armed by pimps or organized crime rings. Underage prostitution would be curtailed. There would also be health-safety improvements.

Health-Safety Issues

The status quo is a poor health-safety plan. With sexually transmitted diseases (STDs) like syphilis, gonorrhea, Chlamydia and herpes, prostitutes must be monitored to prevent the spread of these afflictions. It makes practical sense to monitor prostitution and what better way is there to monitor it than by legalizing it and regulating it? Legalization would require prostitutes to undergo regular medical examinations. STDs would be prevented from being spread as well as other communicable ailments like hepatitis and tuberculosis. It would also reduce gender violence, allow women to escape prostitution, if they so choose, and prevent women from becoming infertile as a consequence to obtaining certain.

The Role of Government
The role of government is to carry out necessary duties its citizens cannot perform. Politicians are elected to government positions to solve the problems countries face. Some politicians insist government should be designed to act as a safety net for people who need help, by providing citizens with various social programs including public safety and healthcare entitlements. Other believes in freedom of choice through responsible action and rather institute high standards in education and healthcare to enable citizens with opportunities.
The best way to understand the current state of affairs concerning prostitution is to entertain an analogy. Pretend government is a business. Politicians would be the managers and prostitution would be a certain procedure the company had to manage. Would a successful business ignore a procedure when it performed poorly? Would it allow a poor procedure to continue or would a successful business instead rethink its position and improve it? All successful companies must evolve over time if they are to stay in business and excel. Laws can change and adapt to meet the demands of a modern civilization. It is a far better strategy than hoping it will go away and clean up itself.
Where are the limits for two consenting adults in privacy? How government is shaped to handle that question will decide how women's rights, social programs, public healthcare, the safety of youth and possibly the general safety of citizens are valued. If moral obstacles prevent citizens from obtaining a government that helps its people while preserving freedoms, then a paradigm shift must be considered. A movement away from values that are harmful is difficult only if one decides to cling to outdated, self-destructive traditions.
Politicians should be careful how they address the philosophical limits of adult privacy. A number of people believe government should have no right deciding how adults conduct their sexual lives, even when an exchange of money is involved. Public debate has already addressed a women's rights issue that is connected to a similar freedom.
Conclusion
There are many benefits to legalized prostitution. The benefits include:
(1) Allowing law enforcement agencies to respond to more important crimes,
(2) Freeing justice systems from nuisance cases,
(3) Helping women who are trapped by prostitution, and
(4) Preventing teens from being ensnared into prostitution.
Critics of the legalization of prostitution offer no alternative to a troublesome problem. These people would rather adopt the status quo model, which virtually abandons lower strata, low socio-economic prostitutes. Instead of managing the problem, these critics view the continued downward spiral of this subgroup as acceptable. The critics of legalized prostitution rest comfortably within relatively new moral codes. The religions that now reject prostitution once used to manage it. However, even though religionists publicly denounce prostitution, too many hypocritically entertain like services and commit adultery.
Now don't misunderstand me, I don't go to prostitutes for sex. Furthermore I don't wish to see my wife, daughter, mother or any other family member doing this kind of work. But shouldn’t people have the right to do what they want with their own bodies? The plane fact is that anti prostitution laws do nothing to enforce morality (which is not the government's business anyway). But rather it punishes women and others who are trying to make a living

The law says they are trying to protect women but is what the laws are really about? Women who prostitute themselves do so because they ether 1) Think it is an easy way to make money, which involves very little skill. Just use their natural, God given talents and their good looks, or 2) Have no other way of earning a living.
I think that prostitution should be legalized because it is no different than any other service that we pay to receive. Besides, there are far more serious crimes that require the full attention of our police force than prostitution; therefore, it is a costly waste of time and police resources. Furthermore, prostitution is already legal in Singapore, Denmark, and a part of the United States as well.