Critical Analysis – The Law Blog

28/04/2018. Dear diary… (On Restitution of Conjugal Rights)

May 26, 2018Posted in Critical Analysis, Social IssuesTagged Marital Rape, Restitution of Conjugal RightsLeave a comment

28/04/2018

1:35 am

Dear Diary,

“To keep your marriage brimming, with love in the loving cup, whenever you’re wrong, admit it; Whenever you’re right, shut up.”

Here’s a picture that I’ve attached, that goes back to my first night. I was lying stark naked next to the love of my life, who was trying to make love with me, who was, for the first time trying to enter my body, that is, only after they allowed us to have our first time.

A Hindu wedding, one of the most sacred of rites, incorporates many timeless rituals and customs, and one such tradition which we were to follow, where the newly-weds were served with a glass of milk on our wedding night in order to de-stress the body and keep the sex drive high[1]. Sadly, these age-old traditions have trivialized this so-called sacred institution of marriage to that of a mere physical form of love. Which makes me wonder, why do we tend to love someone? Is it because we can’t keep our hands off each other’s bodies or is it this deeper connection with our souls which mould us into one entity. Then why is it that in our nation marriage is considered so sacred yet the first act after marriage is celebrated with sex?

Ironically, we are punished for public display of affection and as soon as we are married we are pushed into a room with a glass of milk and a bed decorated with flowers? What if I don’t want to have sex with my partner? What if my partner doesn’t want to have sex with me? Do we defy the institution of marriage if we don’t have sex on the night of the marriage? Why is it that we cannot look at marriage beyond sex? Or maybe without it? Will our marriage not be validated if the act of consummation is not performed? The concept of Consummation is something that I’ve failed to decipher, I mean it neither preaches procreation nor is it the social expectation of sexual satisfaction in marriage.[2] So then why exactly are we still so loyally bound by something, that reduces the magical act of two individuals who are willing to share their body to a mere social obligation to have sex, as and when required.

They say they can’t interfere in the private space of two beings, they can’t indulge in what happens behind the closed doors of this intimate space called bedroom, they can’t intrude in the matters of violation like marital rape where consent is in question. So then why do they contradict themselves by entering the same prohibited area of private spaces and tell us to perform sexual intercourse, to follow the ritual of consummation only after which will they call us legally married. It’s surprising how sometimes, they invade our privacy when we don’t want them to and sometimes they simply don’t, even after we plead them too. How they ignore our cry for justice and yet shamelessly impose rituals in the name of society. And what deepens my agony even more is the fact that the prevalence of the concept of consummation simply fosters the previously existing cultural and societal attitudes and understandings of marriage that make it more difficult to acknowledge these violations.[3]

But that wasn’t enough for us, there also lies a greater evil which creates an inseparation of marriage with that of sexual cohabitation. They call it the restitution of conjugal rights, a process through which the courts will tell me to return to my husband or wife because I am depriving them, because they need me to fulfil their natural urges, because they need my body and physical presence to be constantly available[4].

Now, Marriage has to be seen as one living with another with no autonomy? Neither bodily nor otherwise. This is what has become of this institution, a mere obligation which we owe to our significant other and if we don’t fulfil them, we have a judge and a judiciary who are ready to get involved and tell us what to do in OUR relationship. If this is how marriage is being defined as of now, then it is no different from the forceful forfeiture of our very own body, if marriage cannot be seen separate from sexual cohabitation, then the court order of going back to my spouse against my will is nothing but forfeiture of my body. I’ve started to come in terms with reality, where love in marriage is nothing but a myth and the body and sex are the pith and substance.

So, since you know I am right, do I have to shut up now?

Thanks for keeping my feelings safe, diary.

Ananya Kanoria.

[1] https://www.speakingtree.in/allslides/hindu-ritual-of-serving-milk-on-suhagraat-wedding-night

[2] Marriage Customs of the World: From Henna to Honeymoons, by George Monger, pp 82-84

[3] “Case in point – Is consummation a legal oddity? – Solicitors Journal”.

[4] Hetal Vyas, Denying Sex a Ground for Divorce: Karnataka HC TIMES OF INDIA, Apr. 20, 2012, http://articles.timesofindia.indiatimes.com/2012-04-20/india/31373128_1_family-court-share-bed-hindu-marriage-act.

ABOUT THE AUTHOR

Ananya Kanoria

Ananya Kanoria is second-year Law student of O.P.Jindal University. She discovered at the age of 13, while making her first journal entry, that writing is a cathartic process, a means of releasing her emotions and giving clarity to her jumbled thoughts. She chose Law as her path of empowerment and writing is her tool of paving this path.

Patent on Human Embryonic Stem Cells: A Critical Legal Study

April 24, 2018April 24, 2018Posted in Critical Analysis, IP LawTagged HES, Patent LawLeave a comment

“As time and science move forward, the law struggles to keep pace while, at the same time, resisting change in order to maintain stability.”[1]

Human embryonic stem cells (HES cells) is the most sensational discussed topic in present form not only by the biologists who discovered them but also by the medical professional, media, ethicists, governments, Lawyers and politicians etc. These ‘super cells’ have a major clinical potential in repairing tissues, with their proponents it is believed that they represent the future relief or cure of a wide range of common disabilities, such as replacement of defective cells in a patient by transplantation of the HES cells, which would restore the normal functioning of the defective cells.[2]

Associated patent law issues have been a growing concern with the invent of new developments in biotechnology, since the 1980s. Human embryonic stem cell research, as one of the most controversial among all the subcategories within the general field of biotechnology, is receiving different patent system treatment in different countries.[3] That stem cells that involve the destruction of human embryos are not patentable, which was held by the European Court of Justice in October 2011. This landmark judgment provides an interpretation of the term “human embryo” that takes account of current scientific developments. The case had its origin in Germany, where Dr. Oliver Brustle had applied for a patent on brain stem cells (neural or glial progenitor cells) and the processes for producing them from embryonic stem cells. He claimed that such cells could help treat neurological diseases such as Parkinson’s disease. The patent was granted by the German patent office.[4]

The clinical research environment in India is currently undergoing a tremendous change, with regulators coming under stern criticism from the press, public and the elected government. There are the new ICMR-DBT (Indian Council of Medical Research – Department of Biotechnology) draft guidelines on stem cell research which divided the research into three categories, this follows:

Permissible Areas of Research:–
- In-vitro studies on established pluripotent stem cell lines may be carried out with review and approval of ICMR.
- An Umbilical Cord stem cell bank could be established with the prior permission of the Competent Authority and following guidelines for collection, processing and storage etc.
Restricted Areas of Research:–
- Studies on chimaeras where stem cells from two or more species are mixed and introduced into animals, including primates, at any stage of development and differentiation. This would require the proper approval of Concerned Authority.
- The stem cells which were derived from the donors and identity of such donors should be readily accessible or might be known to the investigator.
Prohibited Areas of Research:–
- Any kind of research related to human germline genetic engineering or reproductive cloning is prohibited.
- Breeding of those animals should not be allowed in which any human stem cells have been introduced at any stage of the research development.
- Research directly involving to any non-autologous donation of any stem cells is also prohibited by virtue of law to a particular individual.

To explore the possibilities of clinical applications using stem cells, through basic research on all types of stem cells i.e. embryonic, adult and tissue is essential. National agencies are pro-active in supporting and promoting this area.

However, there are many challenges in current stem cell research such as non-availability of human resources of adequate expertise. The laws and institutions that regulate the use and ownership of biotechnology in India are multifaceted and complex. Moreover, these laws and institutions are still very incipient and subject to contestation. The process of creating jurisprudence certainly transforms the meaning and interpretation of many of its provisions.

Nevertheless, it is possible to discern patterns in what concerns the protection of the public interest in the various laws that impact the use and ownership of biotechnology in India. Restrictions on patenting of pharmaceuticals and possibilities of opposition to such patenting are intended to ensure broad access to essential medicines and to protect public health.

[1] “Patentability of Human Embryonic Stem Cells: Finding the balance between the Moral Hazard in Europe and the wide scope in the U.S.”, Anna Thorstenson (Phd Thesis for “Faculty of Law, University of Lund”)

[2] https://doi.org/10.1093/humrep/deg143 last accessed on 02/04/2017.

[3] “A Comparative Study on Human Embryonic Stem Cell Patent Law in the United States, the European Patent Organization, and China”, Huan Zhu (Phd Thesis for “School of Law, University of Kansas”).

[4] “Europe Prohibits Patents on Human Embroynic Stem Cells”, Sangeeta Udgaonkar; Published in “The Practical Lawyer”, January, 2012, page no: S–3.

ABOUT THE AUTHOR

Nijhum Seal

Nijhum Seal completed his LL.M in Business Law from Calcutta University. He has been Legal Editor in some MNCs. He is presently practicing in Calcutta High Court and also he is the Founder of the Association namely “Law Legum Associates”, the Organisation is providing guidance to law aspirants in Competitive Examination such as C.L.A.T, Judiciary, A.I.B.E etc. In his leisure time, he plays tabla and he is also a Certified Martial Artist.

Analysing the Judicial Development of Privacy Law

April 7, 2018Posted in Critical AnalysisTagged Indian Law, Privacy LawsLeave a comment

Right to Privacy was never incorporated in the Indian Constitution nor has been provided by any Ordinary law in India. The Judicial interpretations, as well as the development of the law, has led to the emergence of this right, which remains ambiguous till date. Privacy still remains as subjective as it can be comprehended by one unless a law governs the same, which is highly unlikely as the Government is unwilling to take a step ahead. The cases portray shift of the judiciary in striking out Privacy as any right to providing Right to Privacy, which is inherent in the Constitution.

The Judiciary had initially looked through the Indian Constitution in a very rigid and inflexible manner. The M.P. Sharma case[1] was decided merely by considering the American law and decision of the Constituent Assembly, without taking into account any other considerations whatsoever. Whereas the Kharak Singh case[2] went on to state that even late night periodical visits in house and unreasonable surveillance do not infringe any Constitutional rights and amount to the violation of Privacy ipso facto.

Both these decided cases can be clearly inferred to be based on the principles laid down in A.K.Gopalan case[3]. The Judiciary has not endeavoured at all to innovate or apply principles of Article 19 and 21 taken together, effectively. If it were done so, Right to Privacy would have been effortlessly recognised as an inherent Fundamental Right post-independence, subject to reasonable restrictions.

The later case of R.M.Malkani[4] laid down a bad law that phone tapping is not violative of Fundamental Rights merely because the communication cannot be distorted in any manner, which has been severely criticised. This was overruled in the much celebrated PUCL case[5] which guaranteed phone conversations as a Right to Privacy. Right to Privacy has been strengthened in the post-liberalisation era.

In a similar state, Rajagopal[6] and Gobind[7] case held that Privacy was intrinsic to Article 21 of the Indian Constitution but was not at all absolute and cannot be claimed without passing the State and Public interest test and also by public officials in the discharge of official duties. By this time, privacy had assumed an inherent role in our fundamental rights jurisprudence that helped us lead a dignified life without fearing surveillance.

The content of the constitutional right to privacy and its limitations have proceeded on a case to case basis, each precedent seeking to build upon and follow the previous formulations. The foundation of Right to Privacy rests upon M.P.Sharma, Kharak Singh and Gobind cases, further contributed by Rajagopal, PUCL, Selvi and ABC cases. The right to privacy has been traced in the decisions which have been rendered over more than four decades to the guarantee of life and personal liberty in Article 21 and the freedoms set out in Article 19. The Right to Privacy, partially, had been granted due to changing needs and circumstances and being the need of the hour.

The recent judgement has laid down that Right to Privacy is a Fundamental Rights inherent in Article 21 of the Constitution and includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.[8] It protects individual autonomy and power of individuals to make decisions for their life.

[1] (1954) AIR 300.

[2] (1963) AIR 1295.

[3] (1950) AIR 27.

[4] (1973) 1 SCC 471.

[5] (1997) 1 SCC 301.

[6] (1994) 6 SCC 632.

[7] (1975) 2 SCC 148.

[8] K.S.Puttaswamy v. Union of India, Writ Petition (Civil) No. 494 of 2012 (Supreme Court, 24/08/2017).

ABOUT THE AUTHOR

Devansh Saraswat

Devansh Saraswat is a second-year BBA LLB student at Gujarat National Law University. Academy sound and possessing a keen interest in writing and being an avid researcher, he has presented papers on diverse issues in various National and International Conferences, and as well grabbed publications in various journals. He wishes to learn the law to transform the society in whatever way possible.

The Biggest Contribution of Legal Issues to Humanity

March 12, 2018Posted in Critical AnalysisTagged Law and Society, Socio-Legal Analysis2 Comments

In the words of the legendary physicist, Albert Einstein “The strength of the Constitution lies entirely in the determination of each citizen to defend it”. It is us, the mere human souls of this world, that need to be the sole proprietor of every law binding constitution and its legitimacy. Though the government bodies are elected and run for redeeming the nation of its chaotic grievances, the judicial system is the neural network that maintains the livelihood of any living territory. Albeit the world’s partition on the evolutionary dogma of the origin of life, the unanimity for honoring the judicial system remains engraved in everyone’s mind and soul.

Social Stigmas

India has been honored with its due respect since the early 90s when the nation welcomed the digital technology era under the heartfelt guidance of Late Rajeev Gandhi. Since then the country has witnessed an eye-popping statistics drop in various societal discriminations as well. India was rendered with the orthodox mindset of the cases like untouchability, caste-ism, gender differentiation, purging of minorities, & child marriage since before the time of independence.

The issue of untouchability and caste-ism was so pronounced and the practicing results were so inhumane that the Father of the Nation-Mahatma Gandhi- came up with the term Harijan for the socially oppressed class which plainly translated to ‘God’s fellow’. Despite the life-consuming efforts, this stereotypical thinking prevailed amongst the countrymen and it was only in 1955 that the Untouchability Offenses Act was passed for safeguarding the civil rights of the socially oppressed class of India.

Battling the social stigma on somewhat the same ground, the Indian transgender community managed to acquire their deserving status in the society following the 2014 Supreme Court verdict of identifying the kinnar or hijra as the third gender section of India.

Marriage & Family

The legitimacy regarding marriage and family growth has remained yet another challenge for the nation and the country is still recovering from the regularly reported marital/family mishaps. Starting from the legal marriage age to the domestic violence cases, the judicial system has been acting beyond its enabled capacities & resources to ensure a healthy and prosperous marital/individual life to the Indians.

Following the illegitimate child marriage practices and subsequent exploitation of the underage children led the government and many activists to speak up for this evil ceremony. Following the marriage acts of 1955, the judiciaries of India specified the legal marriage for the bride and the groom to prevent the violation of child rights.

In addition, to rid the society of other marriage and family mishaps, various laws and acts subdued under the Indian Penal Code liberalized a quarter of women’s right with the Protection of Women from Domestic Violence Act 2005. The year of 2017 witnessed a historical reform where the legalization of the Triple Talaq Bill helped a huge chunk of the Muslim minority population to exhale a sigh of relief.

Child Protection Rights

Preventing the naïve mind and soul of the children to shape their life into a better future, the Child Labor Act of 1986 brought a ray of hope for millions of exploited souls across the nation. The bill was aimed at providing a better living platform to the underage section of the society, preventing them from various inhumane treatments and wiping out the child labor practice completely. Following the age limit constraints of the act, the bill was amended in the year 2016 as the Child and Adolescent Labor Act to safeguard the rights of individuals ranging from 14-18 years.

The POCSO (Protection of Children from Sexual Abuse Offence) Act 2012 was formulated in order to address the issue of child abuse and sexual exploitation with strict action course. The past decade has witnessed numerous inhuman acts of child molestation and murder cases following which the judicial system has worked breathlessly under the IPC & POCSO Acts to bring the sexual predators under the law enforcement custody and serve them with the deserved punishment.

International Relations

The international relations law is probably the most evolving law to be acted upon on a daily basis. Be it the trade affairs or the citizenship provident or even the medical treatment cases, international relations play an omnipotent role for each nation with their latent yet pronounced economic influence. No country can run a solo business in this era of globalization and prosper with at the same time. North Korea- potential in scientific advancements and cultural heritage could have had one of the most prosperous growth rates in the world. But the solidarity and the ignorance of the nation’s governing bodies have made the major economic forums of the world to cut its ties bringing the citizen’s life almost to a standstill.

Thankfully India is blessed with some of the most efficient trade and international relation laws in its constitution for the nation to maintain pleasant work-relationship with its peers. The GATT (General Agreement on Tariff and Trade, 1947) & the World Trade Organization trade arrangement are the major two players of the international trade market in India.

Be it the BC timeline or the AD running period, history has witnessed the very law establishment and its practice outcomes from ancient Romanians to the modern AI creators. Whether it is the Babylonian laws or the Draconian constitution, the legal system has been evolving as per the needs and priorities of the nation with the whole and sole aim of serving justice. Although the validity and moral code of conduct of the ancient constitutional laws are debatable, it is established beyond the shadow of a doubt that the existence of legal system has been reigning since the beginning of the times. From nature to nurture, every element of this world follows a centralized system.

ABOUT THE AUTHOR

Crystal J. Pace

Crystal J. Pace is a Professional legal writer worked with many companies. She is currently associated with West Coast Trial Lawyers, Car Injury Law Firms. She loves to share her views regarding law.

Personal Guarantee and the issue of Moratorium under Insolvency and Bankruptcy Code, 2016

March 3, 2018Posted in Critical AnalysisTagged Moratorium, Personal GuaranteeLeave a comment

Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as ‘Code’) was enacted with the aim of consolidating multiple legislations dealing with insolvency and bankruptcy and ensuring time-bound adjudication on the subject. Since the enactment of the Code, courts have made important rulings on a plethora of issues under the Code. Recently, a conflict of opinion has surfaced between the NCLT and the Allahabad High Court on the applicability of moratorium under section 14 of the Code vis-a-vis personal guarantee given by the guarantors of the corporate debtor.

Moratorium is an authorization provided to the debtors to postpone payment of debt. According to section 14 of the Code, it is a period during which institution or continuation of suits, execution of any decree or order, or alienation or transfer of the assets of the corporate debtor is prohibited.

Recently, in the case of Sanjeev Shriya v. State Bank of India[1], the Allahabad High Court ruled on this issue. In the concerned case, the directors of the company (corporate debtor) were guarantors against the loan taken by the company from the State Bank of India. After the declaration of the company as ‘sick’ by the Board for Industrial & Financial Reconstruction, SBI approached the Debt Recovery Tribunal (‘DRT’) for the recovery of the due amount. Following this, the company approached the National Company Law Tribunal (‘NCLT’) under section 10 of the Code for the initiation of corporate insolvency resolution process. The NCLT admitted its application and declared moratorium against the Company. Consequently, the directors approached the DRT for the stay of recovery proceedings. The DRT by its order granted stay on proceedings against the corporate debtor but not against the guarantors (petitioners). This order was, therefore, challenged by the petitioners in the High Court on the ground of a lack of jurisdiction of the DRT.

The issue, in this case, was whether the declaration of moratorium under section 14 of the Code vis-a-vis the Company bars proceedings against guarantors under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.

After analyzing the arguments of both sides, the High Court ruled that since the proceedings are in a fluid stage and the liability of both guarantor and the corporate debtor has not yet crystallized, parallel proceedings in different jurisdictions must be discouraged in order to avoid complexity. The Court considered proceedings in the DRT to be without jurisdiction as once the proceedings have commenced under the Code and moratorium is applicable, the proceedings against the guarantors is per se bad.

This decision of the High Court in Sanjeev Shriya stands in stark contrast to the earlier decisions of NCLTs. One such decision was taken in Alpha and Omega Diagnostics (India) Ltd. v. Asset Reconstruction Company of India Ltd[2] wherein, personal property of the promoters was given as security against the loan taken by the Corporate Debtor. The issue was whether moratorium under the Code would be applicable on the property of the promoters or not. The Tribunal placed reliance on section 14(1)(c) of the Code, which states that the adjudicating authority shall declare moratorium for prohibiting “any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.” It held that the use of the word “its” is of significance in that sub-section. It took recourse to a strict interpretation of the statute and ruled that the corporate debtor has applied for “its” own insolvency resolution proceedings and the assets would only include the assets of the corporate debtor and not of any third-party including the promoters.

Another such decision was taken by the NCLT (Delhi) in the case of Schweitzer Systemtek India Pvt. Ltd. v. Pheonix ARC Pvt. Ltd[3] and was later upheld by the National Company Law Appellate Tribunal (‘NCLAT’). As in the above-mentioned case, the issue here too was whether personal property given as security to the creditor bank would fall within the scope of moratorium or not. The tribunal ruled that recognized canons of interpretation must be used in the present case as the language of the Act is so simple that no other form of interpretation is necessary. The tribunals followed the reasoning of Asset Reconstruction Company Case and held that the use of the word “its” in section 10 relates to the property of the Corporate Debtor. The section talks about books of accounts of the corporate debtor and under no circumstance can such use of the word “its” be expanded to bring within its scope property or books of accounts of the guarantor or any third party.

While the opinion of the legal authorities is divided on the issue, it appears that the purposive approach taken by the Allahabad High Court holds good. The decision was taken while keeping in mind the object and motive behind the enactment of the Code. If the property of the guarantor is excluded from the scope of moratorium, then it could potentially affect the financial position of the corporate debtor once the creditor satisfies its debts out of the property of the guarantor. Moreover, it will cause complexity in the corporate insolvency resolution process and consequent resolution plan that the Committee of Creditors (“COC”) may formulate under the Code. In order to avoid this uncertainty, it seems pragmatic to not conduct proceedings in two distinct forums simultaneously. It, thus, becomes imperative that the ambiguity around this legal issue is settled by the appropriate authority conclusively.

[1]2017(9)ADJ 723.

[2]Company Appeal (AT) (Insolvency) No. 116 of 2017.

[3][2017]140 CLA 128.

ABOUT THE AUTHOR

Amrit Singh

Amrit Singh is a fourth-year student of the West Bengal National University of Juridical Sciences. He is deeply interested in Corporate law and likes to follow the developments in the area closely.

Megha Tiwari

Megha Tiwari is a fourth-year student of the West Bengal National University of Juridical Sciences. She is going to become a corporate lawyer and likes to write about the subject in her free time.

The Constitutional Vision of Inclusive Growth: Challenges and Strategies

February 7, 2018February 7, 2018Posted in Constitution of India, Critical AnalysisTagged Constitutional Vision, Development, Inclusive Growth1 Comment

The Indian Society has suffered from the menaces of social and economic inequalities, caste-based discrimination, and purging of minorities for centuries. But the nation’s independence struggle and its ultimate triumph remains the greatest testimony to the world of the power of a people united in the spirit of nationalism.

The Constitution of independent India is a manifestation of the ideals of liberty, equality and fraternity. An inclusive society was the vision of the makers of our constitution. But even after independence the perils of inequality and discrimination lingered on. The post-independence era witnessed the re-emergence of these vices which had subsided during the independence struggle. Although attempts at tackling these were made in the form of social reform legislations, economic and social disparities continue to plague the society.

Over the past two decades, India has made a successful transition from an economy that was growing at best at a moderate rate to one that has become one of the principal drivers of the global economy in the post-crisis phase. The GDP growth rate, the investment rate and the savings rate have steadily increased.

The charm of high growth is, however, obliterated by the fact that the distribution of benefits arising from the growth dynamics is highly skewed. Large sections of the population are precluded from partaking in the benefits of the economic growth which is evidenced by the rising economic disparities.

The lack of inclusion has two broad dimensions, economic and social, which analysts have pointed out, mutually reinforce each other. The most obvious manifestations of economic imbalances are the high incidences of poverty, wide income inequality and high rates of unemployment. These can be attributed to the inequality in access to essential services, particularly those related to education and health, which in turn is the result of social exclusion, “the process through which individuals or groups are wholly or partially excluded from full participation in the society in which they live”[1].

Exclusion is thus both the cause and the effect. It is antithetic to ‘inclusive growth’, which is the “process that yields broad‐based benefits and ensures quality of opportunity for all”[2] as envisioned in the constitution particularly in the preamble, in chapter III and in the Directive Principles of State Policy. Inclusive growth is to be primarily achieved at the levels of Reduction Of Poverty, Reducing Unemployment, Social Justice And Empowerment, Environmental Sustainability, Gender Equity, Access To Essential Services and Governance.

Basely et el (2007) considers inclusive growth as the “growth that has a high elasticity of poverty reduction”, i.e., higher reduction in poverty per unit of growth. The ability to generate an adequate number of productive employment opportunities will be a major factor on which the inclusiveness of growth will be judged. Rapid growth focused on labour-intensive industries and small and middle enterprises will create employment opportunities in the manufacturing and services sectors. The ability to create jobs will be enhanced by greater labour flexibility which may require some changes in labour laws.

Access to essential services is an indispensable aspect of equality of opportunity. Copious theoretical studies have demonstrated that the idea that both the pace and pattern of growth are critical to accomplish a high, sustainable growth record, as well as poverty reduction, is consistent with the findings in the Growth Report, Strategies for Sustained Growth and Inclusive Development[3].

The vision of inclusiveness must be taken beyond the conventional objective of poverty alleviation to embrace equality of opportunity, as well as economic and social mobility for all sections of society, with greater focus on SCs, STs, OBCs, minorities and women. There must be equality of opportunity to all with freedom and dignity, and without social or political obstacles.

The Commission on Growth and Development, in the report found that inclusiveness, a concept that incorporates equity, equality of opportunity, and protection in market and employment transitions is a vital element of any successful growth strategy. The Commission regards systematic inequality of opportunity “toxic” as it will disturb the growth process through political means or conflict.

Another strategy of achieving inclusive growth must be one that not only preserves and maintains natural resources, but also provides equitable access to all. This requires international co-operation to develop forms of burden sharing for alleviation as well as adaptation that are just and equitable to all nations.

Recognizing the depth of the problem of social exclusion based on gender, an integrated approach towards gender equity is also the need of the hour. Identifying and rectifying the flaws and drawbacks in the previous schemes and programs and improving the governmental machinery for implementation and expansion of strategies for inclusive growth through is the most crucial aspect in our stride towards inclusive growth. The need of the hour, thus, is a comprehensive and balanced approach in achieving inclusive growth and distributive justice as part of it.

[1] 1 11 European Foundation for the Improvement of Living and Working Conditions (1995), “Public Welfare Services and Social Exclusion: The Development of Consumer Oriented Initiatives in the European Union”, The Foundation,Dublin, quoted by De Haan, Arjan, and Simon Maxwell (1998), “Poverty and social exclusion in North and South”,IDS Bulletin, 29 (1): 1‐9

[2] 2 7 Govt of India (2008), “Inclusive Growth: Vision and Strategy”, Eleventh Five Year Plan, Planning Commission, New Delhi, p. 2.

[3] Commission on Growth and Development, 2008

ABOUT THE AUTHOR

Treesa Ann Benny

Treesa Ann Benny is a third-year student pursuing B.A LL.B(Hons.) course at the National University of Advanced Legal Studies, Kochi. She enjoys writing, particularly on contemporary issues. She finds legal research extremely interesting as well as rewarding and has a particular liking for corporate and constitutional law. She has interned at various law firms in the country, participated in various moot courts, essay-writing and policy-framing competitions and authored several law research papers. She is a volunteer at the Kerala chapter of Increasing Diversity by Increasing Access (IDIA). She is a music lover and also enjoys cooking.