Monday, October 5, 2009
BHARATI VIDYAPEETH
Bharati Vidyapeeth, the parent body of Bharati Vidyapeeth University was established on 10th May, 1964 by Dr. Patangrao Kadam with the objective of bringing about intellectual awakening & overall development of the people of our country through education.
Bharati Vidyapeeth is now a leading educational institution in the country, which has created history by establishing within a short span of 44 years, 164 educational institutions imparting education from the pre-primary stage to post graduate stage. Our colleges and institutions of higher education impart education in different disciplines including Medicine, Dentistry, Ayurved, Homoeopathy, Nursing, Arts, Science, Commerce, Engineering, Pharmacy, Management, Social Sciences, Law, Environmental Science, Architecture, Hotel Management and Catering Technology, Physical Education, Computer Science, Library Science and Information Technology.
These educational institutions which have achieved an acclaimed academic excellence cater to the educational needs of thousands of students coming from different parts of India and abroad. Our teaching faculty includes highly qualified, experienced, dedicated and student-caring teachers.
These educational centres are located at various places viz. Pune, Navi Mumbai, Kolhapur, Solapur, Sangli, Karad, Panchagani, Jawhar and New Delhi. The spectacular success achieved by Bharti Vidyapeeth is mainly due to division foresight, exceptional leadership and able guidance of the founder who has dynamic personality i.e Dr. Patangrao Kadam.
It has been our constant endeavour to impart high quality education and training to our students and so, no wonder that our institutions have become nationally knowed for their academic excellence. In recognition of the academic merit achieved by these institutions and potential for development which they have, the Department of Human Resource Development, Government of India and the University Grants Commission of India have accorded the status of a deemed to be university to Bharati Vidyapeeth with its thirty two constituent units
BHARATI VIDYAPEETH UNIVERSITY
The Department of Human Resource Development, Government of India on the recommendation of University Grants Commission accorded the status of Deemed University to twelve units of Bharati Vidyapeeth (vide their notification No. F.9-15/95-U.3 dated 26/4/96 under the Section 3 of the University Grants Commission Act. Of 1956).
Subsequently, the Govt. of India on the recommendations of the UGC and AICTE brought three more institutions of Bharati Vidyapeeth within the ambit of Bharati Vidyapeeth University vide their letter No. F9-15/95-U3 dated 28th July, 2000.
Our Constituent Units
1) Bharati Vidyapeeth's Medical College, Pune
2) Bharati Vidyapeeth's Dental College & Hospital, Pune
3) Bharati Vidyapeeth's College of Ayurved, Pune
4) Bharati Vidyapeeth's Homeopathic Medical College, Pune
5) Bharati Vidyapeeth's College of Nursing, Pune
6) Bharati Vidyapeeth's Yashwantrao Mohite College of Arts, Science and Commerce, Pune
7) Bharati Vidyapeeth's New Law College, Pune
8) Social Sciences Centre (M.S. W.), Pune
9) Poona College of Pharmacy, Pune
10) College of Engineering, Pune
11) Institute of Management & Entrepreneurship Development, Pune
12) Yashwantrao Chavan Institute of Social Science Studies & Research, Pune
13) Research and Development Centre in Pharmaceutical Science and Applied Chemistry, Pune
14) College of Physical Education, Pune;
15) Bharati Vidyapeeth's Institute of Environment Education & Research, Pune.
16) Rajiv Gandhi Institute of Information Technology & Biotechnology
17) Interactive Research School in Health Affairs (IRSHA);
18) Bharati Vidyapeeth Medical College, Sangli
19) Bharati Vidyapeeth Dental College and Hospital, Mumbai
20) Bharati Vidyapeeth Nursing College, Mumbai
21) Bharati Vidyapeeth's Institute of Management & Research, New Delhi;
22) Bharati Vidyapeeth's College of Architecture, Pune;
23) Bharati Vidyapeeth's Institute of Hotel Management & Catering Technology, Pune;
24) Bharati Vidyapeeth's Yashwantrao Mohite Institute of Management, Karad;
25) Bharati Vidyapeeth's Institute of Management, Kolhapur;
26) Bharati Vidyapeeth's Institute of Management & Rural Development Administration, Sangli.
27) Bharati Vidyapeeth's Abhijit Kadam Institute of Management and Social Sciences, Solapur.
28) Bharati Vidyapeeth's College of Engineering, New Delhi
29) Bharati Vidyapeeth's institute of Computer Application & Management, New Delhi
30) Bharati Vidyapeeth's Dental College and Hospital, Sangli
31) Bharati Vidyapeeth's Nursing College, Sangli
32) Bharati Vidyapeeth's Medical College, Mumbai
Since the Govt. of India on the recommendation of U.G.C. and AICTE has given the status of Deemed University to Bharati Vidyapeeth, its degrees and diplomas have the same status as that of those given by any statutory University recognized by the U.G.C. Moreover, our Colleges of professional education viz. the Medical College, the Dental College, College of Law and others and also their degrees are approved by the respective statutory councils viz. Medical Council of India, Bar Council of India and also by the State and Central Government.
NEW LAW COLLEGE
The Bharati Vidyapeeth New Law College, Pune, has the recognition from Bar Council of India, New Delhi. It came into existence on 1st August, 1978 as a permanently affiliated college of the University of Pune, Pune. This college has the privilege of being inaugurated at the hands of Hon'ble Shri. Y. V. Chandrachud, then Chief Justice of India. When Bharati Vidyapeeth became a Deemed University in 1996, the New Law College became one of the constituent units of the Bharati Vidyapeeth Deemed University. It was then resolved by the University authorities to shape the college as a centre of excellence in the field of legal education at international level. The College has celebrated its Silver Jubilee during the academic year 2002 - 2003.
RECOGNITION OF LL.B. DEGREE FROM BAR COUNCIL OF INDIA
The Bar Council of India has given recognition to the Bachelor Degree of LL.B. offered by Bharati Vidyapeeth University, for LL.B. 5 Year and 3 Year Courses vide letter No.BCI.D.699.1999 (LE/Mtg) dated 6th August, 1999. The college affiliation is approved by the Bar Council of India by vide letter No.BCI: D: 336:2002 (LE;Mtg) dated 11.3.2002.
Bharati Vidyapeeth University, New Law College, has kept before itself the goals for the advancement and dissemination of knowledge of law and legal processes in the context of national development. In accordance with these basic goals and expectations the College is striving to achieve excellence in the field of legal education and research. The College while imparting the legal education has kept in view that a professional lawyers must be well equipped to perform the various roles which lawyers are expected to play in our society. The lawyer is not to be merely a craftsman, manipulating advocacy skills in the traditional role of conflict resolution in courts. There are other concurrent curricular goals and roles for legal education, some of which may be more important than litigation in the context of our society.
In pursuance of Bar Council of India's Directive through legal education regulation 2008, the college has updated and revised its course structure from the academic year 2009-2010. The college has introduced BBA (law) course which is recognized by Bar Council of India.
STUDENTS EDITORIAL COMMITTEE
NEERAJ MURGAI (IInd yr L.L.B 3year course)
KARAMSHIL BHAGAT (IInd yr L.L.B 3year course)
ALANKAR JHA (IInd yr L.L.B 5year course)
PRIYAM KAPOOR (IIIrd yr L.L.B 5year course)
ADITYA BURMAN (IIIrd yr L.L.B 5year course)
FAIZKHAN F PATHAN (IIIrd yr 3year course)
PIYA (IIIrd yr 3year course)
MEHAK GUPTA (IInd yr L.L.B 3year course)
Thursday, October 1, 2009
GOLDEN WORDS
………We and his thoughts
(This is a conversation between two law students He and She)
He: Hi, how are you?
She: Fine.
He: What you did in these vacations?
She: I had an internship under one of the senior advocate of Supreme Court. What about you?
He: Apart From my CS exam, I read “MY EXPERIMENTS WITH TRUTH” by M.K. GANDHI
She: I was also planning to go through it. Is it helpful to law students?
He: Yes it is. Infact not only to law students but to each and every person, irrespective of his profession, age etc… but I will focus on those aspects which a law student can relate to and learn from.
She: I will try to relate
He: Gandhiji said “a man of truth should be a man of care also”
She: True, a law student can relate it to Limitation Act-the law of limitation prevents persons from enforcing their own rights, and disputing the right of others, after a certain period of time. Vigilanbibus non dormentibus jura subvenient i.e., the law assist the vigilant and not those who sleep over their rights.
He: Gandhiji said “a system should be such, so that the weakest and poorest feel safe and secure”
She: True we have fundamental rights for every person irrespective of his status, sex etc.. Similarly we have legal aid Article 39A of Indian constitution (amicus curiae) Bhagwati .J., observed in Hussainara’s case (AIR 1979 SC 1373) “a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who, therefore go through the trial without legal assistance, cannot possibly be regarded as ‘reasonable, fair and just’”
He: Gandhiji said “a student can learn more when taught independently of books”
She: True this I experienced in these vacations, in the internship I learned a lot and the process of learning was very easy to grasp and retain.
He: These were few points which a law student can relate to learn from .You have experienced these things, but need to realize the experience and experiment with them.
She: I request you to please give me the book, so that I can go through it.
He: I will, even Gandhiji wanted free flow of knowledge, idea, etc. . You need not request me I feel happy sharing knowledge and ideas.
She: Thank you.
“Even truthfulness in the practice of the profession cannot cure it of the fundamental defect that vitiates it.”-M.K. Gandhi
Gandhi's Autograph in 11 scripts, June 1944
By- ADITYA BURMAN
3rd year (5 year)
LEGAL MAXIMS
Salus populi est suprema lex - The safety of the people is the supreme law.
Absoluta sententia expositore non indiget - An absolute judgment needs no expositor.
Maximus magister erroris populus est - The people are the greatest master of error.
Absoluta sententia expositore non indiget - An absolute judgment needs no expositor.
Maximus magister erroris populus est - The people are the greatest master of error.
CORPORATE LAW
Corporate Liability and Human Rights
After reading the title you might be wondering, that are we trying to establish link between South and East pole. Meaning by how can we connect these two terms which are such unrelated to each other?
Now here the story begins, as we all know this era is of globalization and industrialization where trade is free. There are Multi National Corporations working around for decades in the world for expansion of there business with a motive of earning profit and also with a latter motive of boosting their parent country economy.
But the problem is those todays these so called multinationals are become power houses latter production houses. They today are taking workers rights and environmental considerations as hindrance to their motive which has resulted in disastrous results for the world environment .However all these problems did not arosed all of sudden ,it was a gradual process fanned by HOST as well as PARENT country. National Governments were and are still ready to collude with these multinational for the sake of perceived benefits to their own economies or rather personal benefits of the rulers of the nation.
Link Between these two concepts was first brought in limelight by April 1999 Department of Public International Law at Erasumus University of Rotterdam in a colloquium on CORPORATE RESPONSIBILTY.Main aim behind this colloquium was to
---bring together different groups working to achieve corporate accountability between lawyers, trade unionists,academics,developmental NGOs and campaigners
----to review legal initiatives aimed to control these organizations and to suggest future directions and initiatives for civil society in making corporations more accountable to states especially citizens and planet
However it is worth mentioning that this seminar did not pretend to arrive at definitive conclusions or strategies. To understand the things better we can take example of ADIDAS
Adidas sponsor of Euro2000 football tournament is basically another company to many contractors in countries where low wages and poor working conditions are common .During the tournament Adidas was found guilty of several violations of workers in Bulgaria, EL Salvador, Thailand paying less an minimum wages excessive working hours making workers taking pregnancy test, prohibiting workers of collective bargaining and all this was violating FIFA code designed keeping ILO in view. However due to technical difficulties and as well as political pressure nothing much happened and after a certain hype cases went up above in clouds.
Then in USA Arthur Anderson, a well respected audit firm was held responsible for non –disclosure of vital information leading to ‘Enron ‘fiasco and faced criminal charges from government in obstruction of justice. Several high profile executives at Enron and WorldCom were responsible for the collapse of thousands of jobs and billions of dollars and they are now in judicial net. The whistleblowers estimated around 3.06 billion of USD and 797 million in 2002 as irregularities including transfers
In India also unethical practices and variety of financial scams have been witnessed such as capital market scams, co-operative sugar factory scam, land scams, fake stamp paper printing scams etc involving various people by way of gross misuse of public funds affecting ordinary people.
We have seen clashes between high profile clashes between entrenched promoters group and aggressive flamboyant professional CEOs in number of reputed companies in matters such as ‘Indian Hotels’,’Tata Finance’,’Britania’ on matters of corporate governance. Unfortunately Indian Financial institutions despite their holding substantial equity stake in such companies did not play an effective inter ventionaist role at right time.
The recent ill-conceived attempt by Satyam computers services ltd. To acquire ‘Maytas properties’ and ‘Maytas Infra’,the companies owed by the promoters chairman of Satyam and family, to cover up the huge financial and accounting scam of Satyam amounting to Rs.78 billion proves the point.
Multinational Corporations can be held accountable for their operations in other countries either directly or through the governments of countries where they operate and under either domestic or international law. States are obliged to protect the rights of people in their jurisdiction, implying to regulate companies operating in their jurisdiction. Therefore it is important to consider the responsibility of state while blaming MNCs.It means exposing and challenging collusion between governments and MNCs in both home and host countries. And presently due to privatization of public services state are transferring the responsibilities e.g. to provide water now private companies are there resulting in poorer quality of service to poorer class. In many countries Government bend or waive their own labour and environmental legislation to allow MNCs a freer rein or turn blind eye to violations.
For instance …. Sri Lanka has created free trade zones within which the state allows a separate system of law or waivers of national law.
In Burma state oil and Gas Company MOGE was part of a joint venture with UNOCAL accused of serious human rights violations, carried out by the Burmese security forces, to clear territory and obtain forced labour for construction of a gas pipeline .
In Nigeria new civilian government, state security forces are still being used to repress protest by local people at the activities of shell and other companies in Niger River delta.
However there are many Nations which have implemented legislature to tackle corporate liability like in United States there is (Alien Tort Claims Act) ,which is 200 year old law and decides about the jurisdiction of the companies situate in the country whether be it American or Non-American.
In England the legal standard is “duty of care ”which is an obligation applying to everyone in the UK,individuals as well as organizations.
Even after these legislation problem lies in distribution of justice, claimants working are disappointed on success or failure of legal action often depends not on facts of the case but on technicalities of the case like where lies the actual violation? or what is the jurisdiction?, relationship between parent and daughter companies and where the duty of care lies. In Cape case for instance, three years have now been spent in argument where the case should be held?
Moreover there are international organizations like NAFTA, OECD etc but there sketching is as such that they help corporate rather than the victims to have a proper back up for compensation and other remuneration. Therefore something else that is involvement of NGOs and the general public is must. Moreover there are conventions of ILO which are supposed to be handling the “hard law” that is the law related to fixation of corporate liability, allowing claimants to proceed against the governments in case of any sort of violations. It also provides way of negotiating between workers, governments and between employer and worker. Now even World Bank and World Trade Organizations are taking care that their member states are not violating the principles of humanity and are working under proper liability. However this sometimes is not very true because many of its rules are framed for profit at any cost, leading again its establishment no where.
However the issue of social responsibility of business is not free from the conflicting perspectives from intellectuals. Economist like Adam Smith and Milton Freidman were of opinion that only responsibility of business was to perform its economic functions efficiently that is of providing goods and services and earn maximum profit. And better to leave social issues on government itself. But economist like Paul Samuelson and Robert Dahl while criticizing this highly materialistic viewpoint advocated a spirit go social responsibility as an inherent feature of modern business firm.
In the present era of intense competition, it is imperative for the corporate to generate and sustain ‘goodwill’among their stakeholders and community at large. Therefore active participation in various social welfare projects is surely going to improve corporate visibility .Global MNCs like General Motors ,Ford Motors, Microsoft ,McDonalds have sponsored many social welfare and philanthropic activites.And as Corporate India is Concerned it is also not far behind.The Giant Indian Companied viz.Tata Steel,Infosys,ITC,Sail,Bhel etc have also been working tremendously on the front of social service.Tata steel for instance has been a pioneer in discharging social responsibilities and has made several contributions in community development, social welfare ,tribal and adivasi development,agriculture,rural industrialization etc.
Moreover Lawyers, Trade unions and NGOs have a common goal to minimize the impunity of MNCs as power increases with globalization. Moreover there are certain things like
*pooling of resources
*build a body of evidence around case law
*implementation, implementation and implementation, otherwise the international instrument will become toothless and initiatives on it would remain vain
*sharing of knowledge as done by SOMO and IRENE which can serve as clearing house
So to sum up the things it can be said that the corporate being the part of society can’t escape from there liability towards it .They have to sketch there profit earning a way that it doesn’t question the mere existence of the human society on whole. They should and are expected to modify there policies in a way such that social responsibility simultaneous to their business can be maintained. Again it is also the fact that up till now they have been voluntarily avoiding such situation or even if being following that is out of mass outcry. For Instance in 1984 in India happened the Bhopal Gas Tragedy which happens to be one of the gravest industrial disasters it was then when our judiciary drafted “Absolute Responsibility ” on the Union Carbide Limited and that was the first notable case in India where Corporate were forced to realize their responsibility toward society .Now it is up to the Governments of the nation and also the General public to speak up for their rights and secure future of theirs as well as that of their generations to come.
References:
1 Google Wikipedia(Corporate Liability)
2 ICFAI University Journal Of International Business Law
(Corporate Liability and Human Rights)
By:-
Karmashil Bhagat
Parul Yadav
IInd Yr. L.L.B(3Yr Course)
WHETHER SEARCH ENGINES ARE LIABLE FOR COPYRIGHT INFRINGEMENT
This article discusses the application of Indian copyright law to the phenomenon of search engines which has become ubiquitous on World Wide Web on the Internet. In particular, I consider how the copyright law applies to “search engines”
The Internet
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The Internet had its genesis in the middle of the Cold War when the US Department of Defense sought the development of a network of geographically dispersed computers which could continue to function when there were a number of damaged computers or telephone lines linking them. Rand Corporation, a research and development think tank for public policy set up with the encouragement of the US Air Force, came up with the idea of a packet- switched network.. Originally confined to the US military and the research departments of US educational institutions, the growing presence of corporate institutions on the Internet started a trend which opened up the Internet to more widespread membership.
![]()
A Web search engine is a tool designed to search for information on the World Wide Web. The search results are usually presented in a list and are commonly called hits. The information may consist of web pages, images, information and other types of files. search engines operate algorithmically or are a mixture of algorithmic and human input. A program that searches documents for specified keywords and returns a list of the documents where the keywords were found. Although search engine is really a general class of programs, the term is often used to specifically describe systems like Google, Alta Vista and Excite that enable users to search for documents on the World Wide Web
***www.wikipedia.org
A search engine operates, in the following order
![]()
1. Web crawling
What is Copyright?
What copyright is may be summed up as:
Copyright owner's rights**
The Copyright Act grants the copyright owner of an original literary work the exclusive right to:
a. reproduce the work in a material form (the "reproduction right");
b. publish the work (the "publication right");
c. perform the work in public (the "performance right");
d. broadcast the work (the "broadcast right");
e. cause the work to be transmitted to subscribers to a diffusion service (the "diffusion right");
f. make an adaptation of the work (the "adaptation right");
g. in relation to a work that is an adaptation of the work, any of the acts specified in (a) to (f); and
h. enter into a commercial rental arrangement in respect of the work reproduced in a sound recording or, in the case of a computer program, enter into a commercial rental arrangement in respect of the program (the "rental right").
![]()
Copyright in a literary or artistic work is infringed when a person who is not the copyright owner and who is not licensed by the copyright owner, does, or authorises the doing of, any of the acts comprised in the copyright.
The onus of establishing the absence of a license rests on the copyright owner. In this context a license means no more than "permission" and may be an express or implied term of a contract or implied by conduct.
There can be no authorisation of infringement unless there is an act of infringement of the kind allegedly authorised. However, a person does not authorise an infringement merely by knowing that another person might infringe the copyright and takes no action to prevent the infringement. Authorisation includes a mental element and it cannot be inferred that a person had, by mere inactivity, authorised something to be done if he neither knew nor had reason to suspect that the act might be done. Nonetheless, where a person expressly or impliedly extends an unqualified invitation to the public to exercise the exclusive rights of the copyright owner, it is unnecessary that the authorising person have knowledge that a particular act comprised in the copyright will be done.
Are Search Engines Liable for copyright infringement?
“Search Engine Cache Isn't Copyright Infringement”**
There are some out there who have suggested that search engines such as Google and Yahoo are basically just massive copyright violators, because they scan, index and keep an archive of websites. That copied archive is, according to these commenters, an unauthorized copy. Now a court has basically destroyed that argument, noting that putting content online is giving an implicit license for search engines to index and copy. The lawsuit also claimed that individuals who visited the cached version were also infringers -- but the court also rejected that argument, claiming that the implied license extends to those users. The only part of the case that seems to be moving forward is whether or not this implicit license was broken after the lawsuit started and search engines still didn't take down the content. The idea there was that any explicit notification by the content holder might override the implicit license -- and thus search engines should have taken down the content as soon as the lawsuit started.
Statutory defences
The Copyright Act provides that it is not an infringement of copyright in a literary or artistic work where there is:(a) fair dealing for the purpose of research or study; (b) fair dealing for the purpose of criticism; (c) fair dealing for the purpose of reporting news; (d) reproduction for the purpose of judicial proceedings or the giving of legal advice; or, in the case of a computer program, a reproduction for backup purposes. Additionally, there are a number of other statutory exceptions to copyright infringement for various institutions including educational institutions and libraries in specified circumstances and for specified purposes.
Conclusion
It is submitted that the above discussion leads inevitably to the conclusion that the existing Copyright Act is quite able to cope with the phenomenon of the search engines in all its guises on the web. The current legislation does not overly constrain the continued development of the web, nor does it unduly prejudice the rights of copyright owners to control their web content. In cases where copyright owners wish to exercise greater control over their content than the legislation provides, the technological means are available to allow them to do so.
Field v. Google case **
Anyone who posts content to the web knowing that search engines display cached copies impliedly licenses the search engines to do so.
Parker v. Yahoo, Inc.***
** http://blog.ericgoldman.org
*** http://blog.ericgoldman.org
--By
Faizkhan F Pathan
(LLB – final year, 3 yrs )
After reading the title you might be wondering, that are we trying to establish link between South and East pole. Meaning by how can we connect these two terms which are such unrelated to each other?
Now here the story begins, as we all know this era is of globalization and industrialization where trade is free. There are Multi National Corporations working around for decades in the world for expansion of there business with a motive of earning profit and also with a latter motive of boosting their parent country economy.
But the problem is those todays these so called multinationals are become power houses latter production houses. They today are taking workers rights and environmental considerations as hindrance to their motive which has resulted in disastrous results for the world environment .However all these problems did not arosed all of sudden ,it was a gradual process fanned by HOST as well as PARENT country. National Governments were and are still ready to collude with these multinational for the sake of perceived benefits to their own economies or rather personal benefits of the rulers of the nation.
Link Between these two concepts was first brought in limelight by April 1999 Department of Public International Law at Erasumus University of Rotterdam in a colloquium on CORPORATE RESPONSIBILTY.Main aim behind this colloquium was to
---bring together different groups working to achieve corporate accountability between lawyers, trade unionists,academics,developmental NGOs and campaigners
----to review legal initiatives aimed to control these organizations and to suggest future directions and initiatives for civil society in making corporations more accountable to states especially citizens and planet
However it is worth mentioning that this seminar did not pretend to arrive at definitive conclusions or strategies. To understand the things better we can take example of ADIDAS
Adidas sponsor of Euro2000 football tournament is basically another company to many contractors in countries where low wages and poor working conditions are common .During the tournament Adidas was found guilty of several violations of workers in Bulgaria, EL Salvador, Thailand paying less an minimum wages excessive working hours making workers taking pregnancy test, prohibiting workers of collective bargaining and all this was violating FIFA code designed keeping ILO in view. However due to technical difficulties and as well as political pressure nothing much happened and after a certain hype cases went up above in clouds.
Then in USA Arthur Anderson, a well respected audit firm was held responsible for non –disclosure of vital information leading to ‘Enron ‘fiasco and faced criminal charges from government in obstruction of justice. Several high profile executives at Enron and WorldCom were responsible for the collapse of thousands of jobs and billions of dollars and they are now in judicial net. The whistleblowers estimated around 3.06 billion of USD and 797 million in 2002 as irregularities including transfers
In India also unethical practices and variety of financial scams have been witnessed such as capital market scams, co-operative sugar factory scam, land scams, fake stamp paper printing scams etc involving various people by way of gross misuse of public funds affecting ordinary people.
We have seen clashes between high profile clashes between entrenched promoters group and aggressive flamboyant professional CEOs in number of reputed companies in matters such as ‘Indian Hotels’,’Tata Finance’,’Britania’ on matters of corporate governance. Unfortunately Indian Financial institutions despite their holding substantial equity stake in such companies did not play an effective inter ventionaist role at right time.
The recent ill-conceived attempt by Satyam computers services ltd. To acquire ‘Maytas properties’ and ‘Maytas Infra’,the companies owed by the promoters chairman of Satyam and family, to cover up the huge financial and accounting scam of Satyam amounting to Rs.78 billion proves the point.
Multinational Corporations can be held accountable for their operations in other countries either directly or through the governments of countries where they operate and under either domestic or international law. States are obliged to protect the rights of people in their jurisdiction, implying to regulate companies operating in their jurisdiction. Therefore it is important to consider the responsibility of state while blaming MNCs.It means exposing and challenging collusion between governments and MNCs in both home and host countries. And presently due to privatization of public services state are transferring the responsibilities e.g. to provide water now private companies are there resulting in poorer quality of service to poorer class. In many countries Government bend or waive their own labour and environmental legislation to allow MNCs a freer rein or turn blind eye to violations.
For instance …. Sri Lanka has created free trade zones within which the state allows a separate system of law or waivers of national law.
In Burma state oil and Gas Company MOGE was part of a joint venture with UNOCAL accused of serious human rights violations, carried out by the Burmese security forces, to clear territory and obtain forced labour for construction of a gas pipeline .
In Nigeria new civilian government, state security forces are still being used to repress protest by local people at the activities of shell and other companies in Niger River delta.
However there are many Nations which have implemented legislature to tackle corporate liability like in United States there is (Alien Tort Claims Act) ,which is 200 year old law and decides about the jurisdiction of the companies situate in the country whether be it American or Non-American.
In England the legal standard is “duty of care ”which is an obligation applying to everyone in the UK,individuals as well as organizations.
Even after these legislation problem lies in distribution of justice, claimants working are disappointed on success or failure of legal action often depends not on facts of the case but on technicalities of the case like where lies the actual violation? or what is the jurisdiction?, relationship between parent and daughter companies and where the duty of care lies. In Cape case for instance, three years have now been spent in argument where the case should be held?
Moreover there are international organizations like NAFTA, OECD etc but there sketching is as such that they help corporate rather than the victims to have a proper back up for compensation and other remuneration. Therefore something else that is involvement of NGOs and the general public is must. Moreover there are conventions of ILO which are supposed to be handling the “hard law” that is the law related to fixation of corporate liability, allowing claimants to proceed against the governments in case of any sort of violations. It also provides way of negotiating between workers, governments and between employer and worker. Now even World Bank and World Trade Organizations are taking care that their member states are not violating the principles of humanity and are working under proper liability. However this sometimes is not very true because many of its rules are framed for profit at any cost, leading again its establishment no where.
However the issue of social responsibility of business is not free from the conflicting perspectives from intellectuals. Economist like Adam Smith and Milton Freidman were of opinion that only responsibility of business was to perform its economic functions efficiently that is of providing goods and services and earn maximum profit. And better to leave social issues on government itself. But economist like Paul Samuelson and Robert Dahl while criticizing this highly materialistic viewpoint advocated a spirit go social responsibility as an inherent feature of modern business firm.
In the present era of intense competition, it is imperative for the corporate to generate and sustain ‘goodwill’among their stakeholders and community at large. Therefore active participation in various social welfare projects is surely going to improve corporate visibility .Global MNCs like General Motors ,Ford Motors, Microsoft ,McDonalds have sponsored many social welfare and philanthropic activites.And as Corporate India is Concerned it is also not far behind.The Giant Indian Companied viz.Tata Steel,Infosys,ITC,Sail,Bhel etc have also been working tremendously on the front of social service.Tata steel for instance has been a pioneer in discharging social responsibilities and has made several contributions in community development, social welfare ,tribal and adivasi development,agriculture,rural industrialization etc.
Moreover Lawyers, Trade unions and NGOs have a common goal to minimize the impunity of MNCs as power increases with globalization. Moreover there are certain things like
*pooling of resources
*build a body of evidence around case law
*implementation, implementation and implementation, otherwise the international instrument will become toothless and initiatives on it would remain vain
*sharing of knowledge as done by SOMO and IRENE which can serve as clearing house
So to sum up the things it can be said that the corporate being the part of society can’t escape from there liability towards it .They have to sketch there profit earning a way that it doesn’t question the mere existence of the human society on whole. They should and are expected to modify there policies in a way such that social responsibility simultaneous to their business can be maintained. Again it is also the fact that up till now they have been voluntarily avoiding such situation or even if being following that is out of mass outcry. For Instance in 1984 in India happened the Bhopal Gas Tragedy which happens to be one of the gravest industrial disasters it was then when our judiciary drafted “Absolute Responsibility ” on the Union Carbide Limited and that was the first notable case in India where Corporate were forced to realize their responsibility toward society .Now it is up to the Governments of the nation and also the General public to speak up for their rights and secure future of theirs as well as that of their generations to come.
References:
1 Google Wikipedia(Corporate Liability)
2 ICFAI University Journal Of International Business Law
(Corporate Liability and Human Rights)
By:-
Karmashil Bhagat
Parul Yadav
IInd Yr. L.L.B(3Yr Course)
WHETHER SEARCH ENGINES ARE LIABLE FOR COPYRIGHT INFRINGEMENT
This article discusses the application of Indian copyright law to the phenomenon of search engines which has become ubiquitous on World Wide Web on the Internet. In particular, I consider how the copyright law applies to “search engines”
I begin with brief background explanations of the Internet, the World Wide Web, the technological infrastructure within which search engines operate.
The Internet
The Internet had its genesis in the middle of the Cold War when the US Department of Defense sought the development of a network of geographically dispersed computers which could continue to function when there were a number of damaged computers or telephone lines linking them. Rand Corporation, a research and development think tank for public policy set up with the encouragement of the US Air Force, came up with the idea of a packet- switched network.. Originally confined to the US military and the research departments of US educational institutions, the growing presence of corporate institutions on the Internet started a trend which opened up the Internet to more widespread membership. What is Search engine***
A Web search engine is a tool designed to search for information on the World Wide Web. The search results are usually presented in a list and are commonly called hits. The information may consist of web pages, images, information and other types of files. search engines operate algorithmically or are a mixture of algorithmic and human input. A program that searches documents for specified keywords and returns a list of the documents where the keywords were found. Although search engine is really a general class of programs, the term is often used to specifically describe systems like Google, Alta Vista and Excite that enable users to search for documents on the World Wide WebA search engine operates, in the following order
1. Web crawling 2. Indexing
3. Searching
Web search engines work by storing information about many web pages, which they retrieve from the WWW itself, hence it works as an automated Web browser which follows every link it sees. When a user enters a query into a search engine, the engine examines its index and provides a listing of best-matching web pages according to its criteria. Most Web search engines are commercial ventures supported by advertising revenue and, as a result, some employ the practice of allowing advertisers to pay money to have their listings ranked higher in search results. Those search engines which do not accept money for their search engine results make money by running search related ads alongside the regular search engine results. The search engines make money every time someone clicks on one of these ads.
What is Copyright?
What copyright is may be summed up as:
A type of property right which is founded on a person's creative skill and labour. It is designed to prevent the unauthorized use by others of a work, that is, the original form in which an idea or information has been expressed by the creator. Copyright is not a tangible thing. It is made up of a bundle of exclusive economic rights to do certain acts with an original work or other copyright subject-matter.
Copyright owner's rights**
The Copyright Act grants the copyright owner of an original literary work the exclusive right to:
a. reproduce the work in a material form (the "reproduction right");
b. publish the work (the "publication right");
c. perform the work in public (the "performance right");
d. broadcast the work (the "broadcast right");
e. cause the work to be transmitted to subscribers to a diffusion service (the "diffusion right");
f. make an adaptation of the work (the "adaptation right");
g. in relation to a work that is an adaptation of the work, any of the acts specified in (a) to (f); and
h. enter into a commercial rental arrangement in respect of the work reproduced in a sound recording or, in the case of a computer program, enter into a commercial rental arrangement in respect of the program (the "rental right").
** INDIAN COPYRIGHT ACT, 1957
What is Copyright infringement?
Copyright in a literary or artistic work is infringed when a person who is not the copyright owner and who is not licensed by the copyright owner, does, or authorises the doing of, any of the acts comprised in the copyright.
The onus of establishing the absence of a license rests on the copyright owner. In this context a license means no more than "permission" and may be an express or implied term of a contract or implied by conduct.
There can be no authorisation of infringement unless there is an act of infringement of the kind allegedly authorised. However, a person does not authorise an infringement merely by knowing that another person might infringe the copyright and takes no action to prevent the infringement. Authorisation includes a mental element and it cannot be inferred that a person had, by mere inactivity, authorised something to be done if he neither knew nor had reason to suspect that the act might be done. Nonetheless, where a person expressly or impliedly extends an unqualified invitation to the public to exercise the exclusive rights of the copyright owner, it is unnecessary that the authorising person have knowledge that a particular act comprised in the copyright will be done.
Are Search Engines Liable for copyright infringement?
“Search Engine Cache Isn't Copyright Infringement”**
There are some out there who have suggested that search engines such as Google and Yahoo are basically just massive copyright violators, because they scan, index and keep an archive of websites. That copied archive is, according to these commenters, an unauthorized copy. Now a court has basically destroyed that argument, noting that putting content online is giving an implicit license for search engines to index and copy. The lawsuit also claimed that individuals who visited the cached version were also infringers -- but the court also rejected that argument, claiming that the implied license extends to those users. The only part of the case that seems to be moving forward is whether or not this implicit license was broken after the lawsuit started and search engines still didn't take down the content. The idea there was that any explicit notification by the content holder might override the implicit license -- and thus search engines should have taken down the content as soon as the lawsuit started.
** www.techdirt.com
Statutory defences
The Copyright Act provides that it is not an infringement of copyright in a literary or artistic work where there is:(a) fair dealing for the purpose of research or study; (b) fair dealing for the purpose of criticism; (c) fair dealing for the purpose of reporting news; (d) reproduction for the purpose of judicial proceedings or the giving of legal advice; or, in the case of a computer program, a reproduction for backup purposes. Additionally, there are a number of other statutory exceptions to copyright infringement for various institutions including educational institutions and libraries in specified circumstances and for specified purposes.
Conclusion
It is submitted that the above discussion leads inevitably to the conclusion that the existing Copyright Act is quite able to cope with the phenomenon of the search engines in all its guises on the web. The current legislation does not overly constrain the continued development of the web, nor does it unduly prejudice the rights of copyright owners to control their web content. In cases where copyright owners wish to exercise greater control over their content than the legislation provides, the technological means are available to allow them to do so.
Field v. Google case **
Anyone who posts content to the web knowing that search engines display cached copies impliedly licenses the search engines to do so.
Parker v. Yahoo, Inc.***
Search Engine "Cache" Function is Covered under Implied License.
*** http://blog.ericgoldman.org
--By
Faizkhan F Pathan
(LLB – final year, 3 yrs )
ENVIRONMENTAL WATCH
• NATIONAL MISSION ON ENHANCED EFFICIENCY: PRIME MINISTER COUNCIL ON CLIMATE CHANGE HAS ANNOUNCED A NATIONAL MISSION ON ENHANCED ENERGY EFFICIENCY.THE MISSION IS SAID TO ENABLE ABOUT 750 BILLION WORTH OF TRANSACTION IN ENERGY EFFICIENCY.THE MISSION IS SUPPOSED TO SAVE 5% OF ANNUAL ENERGY CONSUMPTION IN INDIA AND ABOUT 100 MILLION TONNES OF CARBON DIOXIDE EMISSION WILL BE REDUCED EVERY YEAR. A NEW PROVISION IS ALSO INTRODUCED UNDER THE MISSION THAT PROVIDES FOR DOMESTIC TRADE OF CARBON CREDITS.UPTILL NOW , CARBON CREDITS EARNED CAN BR TRADED ONLY IN INTERNATIONAL MARKET.
• GROUND WATER DEPLETION IN NORTHERN INDIA:NASA’ GRAVITY RECOVERY AND CLIMATE EXPERIMENT (GRACE) SATELLITE PAIR HAVE FOUND AND REPORTED THAT THE GROUND WATER LEVEL IN NORTHERN INDIA HAVE BEEN DECLINING AS FAST AS 33cm(ONE FOOT ) PER YEAR,OVER THE PAST DECADE.
• KAZIRANGA NATIONAL PARK: THE STATE WILDLIFE ADVISORY BOARD HAS DECIDED TO FORWARD A Rs.7.8 CRORE ANTI-EROSION SCHEME TO THE NATIONAL WILDLIFE BOARD FOR FINAL APPROVAL.THE SCHEME WAS PREPARED BY THE WATER RESOURSE DEPARTMENT FOR PROTECTING KAZIRANGA NATIONAL PARK FROM EROSION CAUSED BY THE BRAHMAPUTRA.
• POISONOUS EATING HABITS FOUND IN TIGERS: TIGERS IN SUNDERBANS ARE RESORT TO ABBERANT FOOD HABITS, ON THE ACCOUNT OF INCREASED COMPETITION FOR CATHING PREY AND CHANGING HABITATS.RECENTLY A TIGER’S TOMACH IS DETECTED TO INGEST A POISONOUS SNAKE.
• POLAR MELTING WILL CHANGE EARTH’S TILT:NASA SCIENTISTS HAVE SUGGESTED THAT GLOBAL WARMING MAY DISTORT THE DISTRIBUTION OF MAN AROUND THE EARTH TO THE EXTENT THAT IT WILL SHIFT THE TILT OF EARTH’S AXIS OF ROTATION SLIGHTLY.
• PLANT FILTER TO RECYCLE WATER: SCIENTIST AT LONDON HAVE DESIGNED A PLANT FILTERATION SYSTEM IN WHICH WASTE WATER IS RECYCLED BY THE PLANT SUCH AS REEDS AND BUSHES. IT IS IN THE FORM OF A MINI ECO-SHOWER THAT COLLECTS THE WASTEWATER OF BATHROOM AND CLEAN IT EFFECTIVELY.
• GROUND WATER DEPLETION IN NORTHERN INDIA:NASA’ GRAVITY RECOVERY AND CLIMATE EXPERIMENT (GRACE) SATELLITE PAIR HAVE FOUND AND REPORTED THAT THE GROUND WATER LEVEL IN NORTHERN INDIA HAVE BEEN DECLINING AS FAST AS 33cm(ONE FOOT ) PER YEAR,OVER THE PAST DECADE.
• KAZIRANGA NATIONAL PARK: THE STATE WILDLIFE ADVISORY BOARD HAS DECIDED TO FORWARD A Rs.7.8 CRORE ANTI-EROSION SCHEME TO THE NATIONAL WILDLIFE BOARD FOR FINAL APPROVAL.THE SCHEME WAS PREPARED BY THE WATER RESOURSE DEPARTMENT FOR PROTECTING KAZIRANGA NATIONAL PARK FROM EROSION CAUSED BY THE BRAHMAPUTRA.
• POISONOUS EATING HABITS FOUND IN TIGERS: TIGERS IN SUNDERBANS ARE RESORT TO ABBERANT FOOD HABITS, ON THE ACCOUNT OF INCREASED COMPETITION FOR CATHING PREY AND CHANGING HABITATS.RECENTLY A TIGER’S TOMACH IS DETECTED TO INGEST A POISONOUS SNAKE.
• POLAR MELTING WILL CHANGE EARTH’S TILT:NASA SCIENTISTS HAVE SUGGESTED THAT GLOBAL WARMING MAY DISTORT THE DISTRIBUTION OF MAN AROUND THE EARTH TO THE EXTENT THAT IT WILL SHIFT THE TILT OF EARTH’S AXIS OF ROTATION SLIGHTLY.
• PLANT FILTER TO RECYCLE WATER: SCIENTIST AT LONDON HAVE DESIGNED A PLANT FILTERATION SYSTEM IN WHICH WASTE WATER IS RECYCLED BY THE PLANT SUCH AS REEDS AND BUSHES. IT IS IN THE FORM OF A MINI ECO-SHOWER THAT COLLECTS THE WASTEWATER OF BATHROOM AND CLEAN IT EFFECTIVELY.
LAW OF THE WEEK
Offence of RAPE
……….Now consent is in danger
Offence of rape is an act which is barbaric in nature. An act in which sexual intercourse is done with a woman against her will, without her consent, by fear, fraud, under the influence of intoxic substance or by reason of unsoundness of mind and if she is under age. In INDIA section 375 of Indian Penal Code defines ‘’RAPE’’.
It is important to understand that rape is an offence which is not only against an individual but the entire society as it hampers the grass root of the governance of the society. And as per the Supreme Court finding it also affects:-
(1) The entire psychology of a woman due to which she becomes emotionally and mentally weak.
(2) It also infringes the basic human right of a person as it violates the ‘’Right to Life’’ which is a fundamental right under article 21 of Indian Constitution 1950.
In India it is very sadden to say that the percentage of this heinous crime is increasing tremendously as in 2006 Cases registered were 19384, which rose to 20737 in 2007. Here we need to understand why the percentage of rape is increasing in our country with a higher growth rate. The answer to this is quite logical because the violators escape easily due to lacunas in our system and mostly delay in trial results in the loss of faith of the people in the judiciary as ‘’justice delayed is justice denied’’. And due to these reasons the violators are not afraid of judiciary and other authorities. So they commit such a dreadful crime which is the slur to a democratic country like India.
Q. How to control this crime?
To control or reduce the percentage of such a heinous crime our judiciary is continuously making efforts in the form of amendments to control it. Such an amendment was made through criminal law amendment act 1983 (act 43 of 1983) through which section 375of I.P.C was amended and some provisions were incorporated for punishing custodians who molested the women under their custody. And because of this section 114A was added in Indian evidence act which says:-
‘In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) or section 376 of the Indian Penal Code, (45 of 1860) where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent “.
Actually this amendment was made by the court of India after the” Mathura case” by the criminal law amendment act, 1983 and a statutory provision in the face of section 114(A) of the evidence was introduced
Q. Can this section be used to punish innocent?
Albeit the introduction of this section is a good attempt to control this (rape) crime, there is also another side to this section which is contrary and should also be considered as an innocent can also be accused of and be punished of a crime which he has not committed.
As there was a case of a gang rape registered against the station house officer & four other policemen of Inderpuri police station on June 23rd 2009, by a woman of that area that she had been raped by the policemen in police station. On the night of 22nd, she was called by the police to the police station for enquiring about her husband who was allegedly involved in betting cases. Though, it was later proved by the medical examination report that woman was not raped by the policeman. The consequences of woman alleging were so horrifying, as her complaint only triggered protest with scores of people pelting stones at the police station. And on the other hand the mental agony faced by the accused policemen is not even imaginable as the act in a way was an attempt to take away their basic rights.
Therefore, this section should be again considered as in a case there is sexual intercourse between the persons with the consent but the women for any other purpose files the complaint of rape against the person & in court of law says that the sexual intercourse was without her consent, then it would result in punishing that person, who is innocent but according to this section the court will just presume & not consider whether it was a rape or not.
Conclusion
The attempt made by the government through this section is a good attempt but there should be more modifications as this section should not be used against any innocent person. As it is rightly said by Sir William Blackstone that ‘’it is far better that ten guilty persons escape than one innocent suffers’’.
There is one more thing which should be considered which is the delay in judgment which can also result in losing faith in judiciary. As we can see that there was a Buddha Jayanti Park3 gang rape case in which the decision came after 6 years which is quite a long gap. So, we should consider the time factor also as it is rightly said that ‘’Justice delayed is justice denied’’. So we should come with some new ideas like, setting separate rape courts where only rape trials would be conducted and justice woulds be given as soon as possible.
References :
Criminal Law Amendment Act, 1983,(act43 of 1983)
Indian Penal Code, 1860,
Indian Evidence Act, 1872.
2ZEE NEWS, Tue, June, 23, 2009.
3Indian Express,Sun,Aug,23,2009
www.indianexpress.com/news/buddha-jayanti.../505689/
NEERAJ MURGAI
IIyr L.L.B(3year course)
TRACKING THE CASE
AARUSHI MURDER CASE
Facts of the Case :
The incident took place on the night of May 15, 2008 and the body of 14 years old, Aarushi Talwar, D/o Mr. Rajesh Talwar (father) and Nupur Talwar (mother), was found on the morning of May 16, 2008 at Talwar residence, Jalvayu Vihar, Noida, Delhi. The parents say that they were in the next room but did not hear any screams in the night, so they were unaware. The domestic help Yam Prasad Baryade alias Hemraj, 45 years old Nepalese, went missing, so suspicion fell on him. The Noida Police announced reward for information leading to Hemraj’s apprehension and arrest. The postmortem was conducted on May 17, 2008. The autopsy ruled out any sexual assault.. Meanwhile, Noida Police never took proper forensic information from the murder location like finger prints, blood stain samples.
After 2 days, body of Hemraj was found on the terrace of Dr. Talwar’s house, the door to which was locked and the keys were with Dr. Talwar. On May 18, 2008, after investigation, the Police stated that the murders have been committed with a surgical precision instrument.
The Prosecution Story :
The Noida Police formed a circumstantial theory, stating that Dr. Talwar and his daughter Aarushi had a strenuous relationship and Aarushi was a bad character girl. On the fateful night, Dr. Talwar comes home and finds Hemraj and Aarushi in compromising position and gets provocated. He then takes Hemraj to terrace and murders him. Later he comes back downstairs where Aarushi is sleeping and murders her as well. Later he calls the police on the morning and tells them that Hemraj has murdered his daughter. His plan is to put the blame on Hemraj and then to dispose off his body in a away that it is never found so that the case is never solved. Noida Police also says that there is one more reason for this murder. Dr. Talwar had an affair with a family6 friend Mrs. Durrani and Aarushi had objected to it, so he murdered her. They came up with ridiculous evidence of a year old e-mail and Dr. Talwar was arrested on May 23, 2008.
< http://en.wikipedia.org/wiki/Noida_double_murder_case >
Later on, the matter saw political light and it was handed over to CBI. Since then, some progress has happened in the case in a scientific manner. It does appear that Krishna, the compounder at Dr. Talwar’s clinic has confessed that the murders were carried out by him and Rajkumar, who is a domestic help at Durrani’s home.
According to the new theory based on confessions, Krishna had been openly criticized for his negligent work by Dr. Talwar and Dr. had also threatened to remove him from his clinic. Krishna, Hemraj and Rajkumar were mutual friends. On the night of incident, all three had got together at servant quarters at Talwar residence. Hemraj was aware that her parents sleep with A.C. on with closed doors and generally they don’t realize what happens outside their room in the night. All three went to Aarushi’s room and Krishna murdered her with a knife. It probably happened so fast to Aarushi that she was totally terrified and never had a chance to scream. Now Hemraj knows that he would be the prime suspect so he is afraid and ready to tell it all. So Krishna murders him as well.
This theory seems somewhat genuine.
Role of Media :
In between media also does a lot of character assassination of Dr.Talwar and wife. One section of media published report saying that Dr.Talwar had booked room in a hotel on that night and he is just faking that he was at home. This is totally a baseless allegation for which no proof was found by CBI. This clearly points out that there are sections in Indian media which has lost their moral values, to the plight of Dr. Talwar and wife. Plus, media with all its hype increased the pressure on the Police.
It is quite understandable that the job of CBI was quite difficult because the case was handed over to them almost ten days after the murder. Till that time Noida police had not collected any forensic evidence from the murder location like finger prints, blood stains, etc, they did not even lock the room where the murder took place. The CBI, based on the confessions of Krishna and Rajkumar, gave clean chit to Dr. Talwar. Later, Krishna, Rajkumar and Sambhu, all three got out on bail as well. This is because the confessions made by them to the CBI had no relevance in the court of justice. CBI is still investigating the case.
On September 4, 2009, a new fact came into light, clearing that Aarushi’s vaginal samples were substituted with those of an unknown woman. Also, the clothes that Aarushi was found in were soaked in blood but the laboratory received clean clothes.
On September 10, 2009, doubts were raised about the authenticity of the post mortem report. And finally, Aarushi’s mobile phone was found in Bulandshehar on September 14, 2009. The CBI says that finding of cell phone might prove to be a boon for the investigation.
Questions to be answered :
• Can actually a cell phone, found after more than a year, without the simcard, can solve the mystery?
• Or is it just disclosed by CBI to show that some progress is going on and divert the attention from the postmortem report controversy?
• It has been more than a year and still there’s no solid evidence against a particular person. Inspite of the limelight the case got, the case is yet pending. And there are so many other cases that don’t receive such attention, what would happen to them?
• Who is to be blamed for this delay of justice?
Conclusion :
The Noida Police, who didn’t take caution in recording evidence in the beginning, the forensic lab, which let the actual samples and the only evidence disappear, the CBI, which is taking too long to solve the mystery or the Media, which behaved irresponsibly and distracted the whole investigation? Whoever be the reason, the present situation suggests that in the absence of eye witnesses, the mystery may remain unsolved.
http://timesofindia.indiatimes.com/news/city/delhi/Finally-some-headway-as-Aarushis-mobile-found-in-UP/articleshow/5010932.cms
PIYA,
5sem,3 year L.L.B.
Facts of the Case : The murder of Aarushi Talwar is one of the most sensationalized and mysterious murders of the recent times. The murder attracted attention not only from the media but also from CBI, politics and people across the nation. But despite of taking attention for more than a year, this murder mystery is yet unsolved
The incident took place on the night of May 15, 2008 and the body of 14 years old, Aarushi Talwar, D/o Mr. Rajesh Talwar (father) and Nupur Talwar (mother), was found on the morning of May 16, 2008 at Talwar residence, Jalvayu Vihar, Noida, Delhi. The parents say that they were in the next room but did not hear any screams in the night, so they were unaware. The domestic help Yam Prasad Baryade alias Hemraj, 45 years old Nepalese, went missing, so suspicion fell on him. The Noida Police announced reward for information leading to Hemraj’s apprehension and arrest. The postmortem was conducted on May 17, 2008. The autopsy ruled out any sexual assault.. Meanwhile, Noida Police never took proper forensic information from the murder location like finger prints, blood stain samples.
After 2 days, body of Hemraj was found on the terrace of Dr. Talwar’s house, the door to which was locked and the keys were with Dr. Talwar. On May 18, 2008, after investigation, the Police stated that the murders have been committed with a surgical precision instrument.
The Prosecution Story :
The Noida Police formed a circumstantial theory, stating that Dr. Talwar and his daughter Aarushi had a strenuous relationship and Aarushi was a bad character girl. On the fateful night, Dr. Talwar comes home and finds Hemraj and Aarushi in compromising position and gets provocated. He then takes Hemraj to terrace and murders him. Later he comes back downstairs where Aarushi is sleeping and murders her as well. Later he calls the police on the morning and tells them that Hemraj has murdered his daughter. His plan is to put the blame on Hemraj and then to dispose off his body in a away that it is never found so that the case is never solved. Noida Police also says that there is one more reason for this murder. Dr. Talwar had an affair with a family6 friend Mrs. Durrani and Aarushi had objected to it, so he murdered her. They came up with ridiculous evidence of a year old e-mail and Dr. Talwar was arrested on May 23, 2008.
< http://en.wikipedia.org/wiki/Noida_double_murder_case >
Later on, the matter saw political light and it was handed over to CBI. Since then, some progress has happened in the case in a scientific manner. It does appear that Krishna, the compounder at Dr. Talwar’s clinic has confessed that the murders were carried out by him and Rajkumar, who is a domestic help at Durrani’s home.According to the new theory based on confessions, Krishna had been openly criticized for his negligent work by Dr. Talwar and Dr. had also threatened to remove him from his clinic. Krishna, Hemraj and Rajkumar were mutual friends. On the night of incident, all three had got together at servant quarters at Talwar residence. Hemraj was aware that her parents sleep with A.C. on with closed doors and generally they don’t realize what happens outside their room in the night. All three went to Aarushi’s room and Krishna murdered her with a knife. It probably happened so fast to Aarushi that she was totally terrified and never had a chance to scream. Now Hemraj knows that he would be the prime suspect so he is afraid and ready to tell it all. So Krishna murders him as well.
This theory seems somewhat genuine.
Role of Media :
In between media also does a lot of character assassination of Dr.Talwar and wife. One section of media published report saying that Dr.Talwar had booked room in a hotel on that night and he is just faking that he was at home. This is totally a baseless allegation for which no proof was found by CBI. This clearly points out that there are sections in Indian media which has lost their moral values, to the plight of Dr. Talwar and wife. Plus, media with all its hype increased the pressure on the Police.
It is quite understandable that the job of CBI was quite difficult because the case was handed over to them almost ten days after the murder. Till that time Noida police had not collected any forensic evidence from the murder location like finger prints, blood stains, etc, they did not even lock the room where the murder took place. The CBI, based on the confessions of Krishna and Rajkumar, gave clean chit to Dr. Talwar. Later, Krishna, Rajkumar and Sambhu, all three got out on bail as well. This is because the confessions made by them to the CBI had no relevance in the court of justice. CBI is still investigating the case.
On September 4, 2009, a new fact came into light, clearing that Aarushi’s vaginal samples were substituted with those of an unknown woman. Also, the clothes that Aarushi was found in were soaked in blood but the laboratory received clean clothes.
On September 10, 2009, doubts were raised about the authenticity of the post mortem report. And finally, Aarushi’s mobile phone was found in Bulandshehar on September 14, 2009. The CBI says that finding of cell phone might prove to be a boon for the investigation.
Questions to be answered :
• Can actually a cell phone, found after more than a year, without the simcard, can solve the mystery?
• Or is it just disclosed by CBI to show that some progress is going on and divert the attention from the postmortem report controversy?
• It has been more than a year and still there’s no solid evidence against a particular person. Inspite of the limelight the case got, the case is yet pending. And there are so many other cases that don’t receive such attention, what would happen to them?
• Who is to be blamed for this delay of justice?
Conclusion :
The Noida Police, who didn’t take caution in recording evidence in the beginning, the forensic lab, which let the actual samples and the only evidence disappear, the CBI, which is taking too long to solve the mystery or the Media, which behaved irresponsibly and distracted the whole investigation? Whoever be the reason, the present situation suggests that in the absence of eye witnesses, the mystery may remain unsolved.
http://timesofindia.indiatimes.com/news/city/delhi/Finally-some-headway-as-Aarushis-mobile-found-in-UP/articleshow/5010932.cms
PIYA,
5sem,3 year L.L.B.
INTERNATIONAL LAW
National Treatment
… No discrimination
The General Agreement on Tariffs and Trade (GATT) is a multilateral agreement, in general which means to reduce the tariff and increase the trade, was signed in 1947. It was replaced by World Trade Organization in 1995. According to its preamble; the purpose of the GATT is the "substantial reduction of tariffs and other trade barriers and the elimination of preferences, on a reciprocal and mutually advantageous basis."
Article III of GATT deals with National Treatment, which means that there should be no discrimination on the same type of products made in the country itself and imported product, i.e. foreign products should be treated equally to domestic products. National Treatment only applies once a product, service or item of intellectual property has entered the market. Therefore, charging customs duty on an import is not a violation of National Treatment even if locally-produced products are not charged an equivalent tax. It is one of the important pillars of WTO. It is the very heart of it.
National Treatment provides that there should not be discrimination between domestic products and foreign products on the basis of:
(a) Internal taxes,
(b) By way of secondary treatment, and,
(c) Safeguard measures.
http://www.law.duke.edu/lib/researchguides/gatt.html
http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm
In this case Japan (Taxes on Alcoholic Beverages 1996) imposed taxes on the alcoholic beverages based on the content of the alcohol. As the content of alcohol in Japan beverages was less as compare to that of the imported beverages. It was seen that whether the taxed items are like; and whether the taxes applied to the imported products are in excess of those applied to the like domestic products. To protect the domestic market Japan imposed such tax on the products. Hence this was the discrimination on the basis of internal taxes.
This case states; "[a] national treatment obligation is a general prohibition on the use of internal taxes and other internal regulatory measures so as to afford protection to domestic production".
Therefore we can conclude;
Foreign product = domestic product; and lso,
Domestic product + same taxes = Foreign product + same taxes
PRIYAM KAPOOR
3RD YEAR BA.LL.B.
… No discrimination
The General Agreement on Tariffs and Trade (GATT) is a multilateral agreement, in general which means to reduce the tariff and increase the trade, was signed in 1947. It was replaced by World Trade Organization in 1995. According to its preamble; the purpose of the GATT is the "substantial reduction of tariffs and other trade barriers and the elimination of preferences, on a reciprocal and mutually advantageous basis."
Article III of GATT deals with National Treatment, which means that there should be no discrimination on the same type of products made in the country itself and imported product, i.e. foreign products should be treated equally to domestic products. National Treatment only applies once a product, service or item of intellectual property has entered the market. Therefore, charging customs duty on an import is not a violation of National Treatment even if locally-produced products are not charged an equivalent tax. It is one of the important pillars of WTO. It is the very heart of it.
National Treatment provides that there should not be discrimination between domestic products and foreign products on the basis of:
(a) Internal taxes,
(b) By way of secondary treatment, and,
(c) Safeguard measures.
http://www.law.duke.edu/lib/researchguides/gatt.html
http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm
In this case Japan (Taxes on Alcoholic Beverages 1996) imposed taxes on the alcoholic beverages based on the content of the alcohol. As the content of alcohol in Japan beverages was less as compare to that of the imported beverages. It was seen that whether the taxed items are like; and whether the taxes applied to the imported products are in excess of those applied to the like domestic products. To protect the domestic market Japan imposed such tax on the products. Hence this was the discrimination on the basis of internal taxes.
This case states; "[a] national treatment obligation is a general prohibition on the use of internal taxes and other internal regulatory measures so as to afford protection to domestic production".
Therefore we can conclude;
Foreign product = domestic product; and lso,
Domestic product + same taxes = Foreign product + same taxes
PRIYAM KAPOOR
3RD YEAR BA.LL.B.
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