Rules on professional standards

Advocates, in addition to being professionals, are also officers of the courts and play a vital role in the administration of justice.

Accordingly, the set of rules that govern their professional conduct arise out of the duty that they owe the court, the client, their opponents and other advocates.

Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. These rules have been placed there under section 49(1)(c) of the Advocates Act, 1961.

Click here to see the Advocates Act, 1961

Click here to see Parts I, II and III of the Bar Council of India Rules

Click here to see Part IV of the Bar Council of India Rules (Rules on Legal Education)

Click here to see Parts V, VI, VII, VIII and IX of the Bar Council of India Rules

RULES ON AN ADVOCATE’S DUTY TOWARDS THE COURT

1. Act in a dignified manner

During the presentation of his case and also while acting before a court, an advocate should act in a dignified manner. He should at all times conduct himself with self-respect. However, whenever there is proper ground for serious complaint against a judicial officer, the advocate has a right and duty to submit his grievance to proper authorities.

2. Respect the court

An advocate should always show respect towards the court. An advocate has to bear in mind that the dignity and respect maintained towards judicial office is essential for the survival of a free community.

3. Not communicate in private

An advocate should not communicate in private to a judge with regard to any matter pending before the judge or any other judge. An advocate should not influence the decision of a court in any matter using illegal or improper means such as coercion, bribe etc.

4. Refuse to act in an illegal manner towards the opposition

An advocate should refuse to act in an illegal or improper manner towards the opposing counsel or the opposing parties. He shall also use his best efforts to restrain and prevent his client from acting in any illegal, improper manner or use unfair practices in any mater towards the judiciary, opposing counsel or the opposing parties.

5. Refuse to represent clients who insist on unfair means

An advocate shall refuse to represent any client who insists on using unfair or improper means. An advocate shall excise his own judgment in such matters. He shall not blindly follow the instructions of the client. He shall be dignified in use of his language in correspondence and during arguments in court. He shall not scandalously damage the reputation of the parties on false grounds during pleadings. He shall not use unparliamentary language during arguments in the court.

6. Appear in proper dress code

An advocate should appear in court at all times only in the dress prescribed under the Bar Council of India Rules and his appearance should always be presentable.

7. Refuse to appear in front of relations

An advocate should not enter appearance, act, plead or practice in any way before a judicial authority if the sole or any member of the bench is related to the advocate as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.

8. Not to wear bands or gowns in public places

An advocate should not wear bands or gowns in public places other than in courts, except on such ceremonial occasions and at such places as the Bar Council of India or as the court may prescribe.

9. Not represent establishments of which he is a member

An advocate should not appear in or before any judicial authority, for or against any establishment if he is a member of the management of the establishment. This rule does not apply to a member appearing as “amicus curiae” or without a fee on behalf of the Bar Council, Incorporated Law Society or a Bar Association.

10. Not appear in matters of pecuniary interest

An advocate should not act or plead in any matter in which he has financial interests. For instance, he should not act in a bankruptcy petition when he is also a creditor of the bankrupt. He should also not accept a brief from a company of which he is a Director.

11. Not stand as surety for client

An advocate should not stand as a surety, or certify the soundness of a surety that his client requires for the purpose of any legal proceedings.

RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT

1. Bound to accept briefs

An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practise. He should levy fees which is at par with the fees collected by fellow advocates of his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.

2. Not withdraw from service

An advocate should not ordinarily withdraw from serving a client once he has agreed to serve them. He can withdraw only if he has a sufficient cause and by giving reasonable and sufficient notice to the client. Upon withdrawal, he shall refund such part of the fee that has not accrued to the client.

3. Not appear in matters where he himself is a witness

An advocate should not accept a brief or appear in a case in which he himself is a witness. If he has a reason to believe that in due course of events he will be a witness, then he should not continue to appear for the client. He should retire from the case without jeopardising his client’s interests.

4. Full and frank disclosure to client

An advocate should, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosure to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client’s judgement in either engaging him or continuing the engagement.

5. Uphold interest of the client

It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means. An advocate shall do so without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused. An advocate should always remember that his loyalty is to the law, which requires that no man should be punished without adequate evidence.

6. Not suppress material or evidence

An advocate appearing for the prosecution of a criminal trial should conduct the proceedings in a manner that it does not lead to conviction of the innocent. An advocate shall by no means suppress any material or evidence, which shall prove the innocence of the accused.

7. Not disclose the communications between client and himself

An advocate should not by any means, directly or indirectly, disclose the communications made by his client to him. He also shall not disclose the advice given by him in the proceedings. However, he is liable to disclose if it violates Section 126 of the Indian Evidence Act, 1872.

8. An advocate should not be a party to stir up or instigate litigation.

9. An advocate should not act on the instructions of any person other than his client or the client’s authorised agent.

10. Not charge depending on success of matters

An advocate should not charge for his services depending on the success of the matter undertaken. He also shall not charge for his services as a percentage of the amount or property received after the success of the matter.

11. Not receive interest in actionable claim

An advocate should not trade or agree to receive any share or interest in any actionable claim. Nothing in this rule shall apply to stock, shares and debentures of government securities, or to any instruments, which are, for the time being, by law or custom, negotiable or to any mercantile document of title to goods.

12. Not bid or purchase property arising of legal proceeding

An advocate should not by any means bid for, or purchase, either in his own name or in any other name, for his own benefit or for the benefit of any other person, any property sold in any legal proceeding in which he was in any way professionally engaged. However, it does not prevent an advocate from bidding for or purchasing for his client any property on behalf of the client provided the Advocate is expressly authorised in writing in this behalf.

13. Not bid or transfer property arising of legal proceeding

An advocate should not by any means bid in court auction or acquire by way of sale, gift, exchange or any other mode of transfer (either in his own name or in any other name for his own benefit or for the benefit of any other person), any property which is the subject matter of any suit, appeal or other proceedings in which he is in any way professionally engaged.

14. Not adjust fees against personal liability

An advocate should not adjust fee payable to him by his client against his own personal liability to the client, which does not arise in the course of his employment as an advocate.

15.An advocate should not misuse or takes advantage of the confidence reposed in him by his client.

16.Keep proper accounts

An advocate should always keep accounts of the clients’ money entrusted to him. The accounts should show the amounts received from the client or on his behalf. The account should show along with the expenses incurred for him and the deductions made on account of fees with respective dates and all other necessary particulars.

17. Divert money from accounts

An advocate should mention in his accounts whether any monies received by him from the client are on account of fees or expenses during the course of any proceeding or opinion. He shall not divert any part of the amounts received for expenses as fees without written instruction from the client.

18. Intimate the client on amounts

Where any amount is received or given to him on behalf of his client, the advocate must without any delay intimate the client of the fact of such receipt.

19. Adjust fees after termination of proceedings

An advocate shall after the termination of proceedings, be at liberty to adjust the fees due to him from the account of the client. The balance in the account can be the amount paid by the client or an amount that has come in that proceeding. Any amount left after the deduction of the fees and expenses from the account must be returned to the client.

20. Provide copy of accounts

An advocate must provide the client with the copy of the client’s account maintained by him on demand, provided that the necessary copying charge is paid.

21. An advocate shall not enter into arrangements whereby funds in his hands are converted into loans.

22. Not lend money to his client

An advocate shall not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client. An advocate cannot be held guilty for a breach of this rule, if in the course of a pending suit or proceeding, and without any arrangement with the client in respect of the same, the advocate feels compelled by reason of the rule of the Court to make a payment to the Court on account of the client for the progress of the suit or proceeding.

23. Not appear for opposite parties

An advocate who has advised a party in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party in the same matter.

RULES ON ADVOCATE’S DUTY TO OPPONENTS

1. Not to negotiate directly with opposing party

An advocate shall not in any way communicate or negotiate or call for settlement upon the subject matter of controversy with any party represented by an advocate except through the advocate representing the parties.

2. Carry out legitimate promises made

An advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the Court.

RULES ON AN ADVOCATE’S DUTY TOWARDS FELLOW ADVOCATES

1. Not advertise or solicit work

An advocate shall not solicit work or advertise in any manner. He shall not promote himself by circulars, advertisements, touts, personal communications, interviews other than through personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned.

2. Sign-board and Name-plate

An advocate’s sign-board or name-plate should be of a reasonable size. The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has been associated with any person or organisation or with any particular cause or matter or that he specialises in any particular type of work or that he has been a Judge or an Advocate General.

3. Not promote unauthorized practice of law

An advocate shall not permit his professional services or his name to be used for promoting or starting any unauthorised practice of law.

4. An advocate shall not accept a fee less than the fee, which can be taxed under rules when the client is able to pay more.

5. Consent of fellow advocate to appear

An advocate should not appear in any matter where another advocate has filed a vakalt or memo for the same party. However, the advocate can take the consent of the other advocate for appearing.

In case, an advocate is not able to present the consent of the advocate who has filed the matter for the same party, then he should apply to the court for appearance. He shall in such application mention the reason as to why he could not obtain such consent. He shall appear only after obtaining the permission of the Court.

Brief History of law in India

Law in India has evolved from religious prescription to the current constitutional and legal system we have today, traversing through secular legal systems and the common law.

India has a recorded legal history starting from the Vedic ages and some sort of civil law system may have been in place during the Bronze Age and the Indus Valley civilization. Law as a matter of religious prescriptions and philosophical discourse has an illustrious history in India. Emanating from the Vedas, the Upanishads and other religious texts, it was a fertile field enriched by practitioners from different Hindu philosophical schools and later by Jains and Buddhists.

Secular law in India varied widely from region to region and from ruler to ruler. Court systems for civil and criminal matters were essential features of many ruling dynasties of ancient India. Excellent secular court systems existed under the Mauryas (321-185 BCE) and the Mughals (16^th – 19^th centuries) with the latter giving way to the current common law system.

Law in British-ruled India

The common law system – a system of law based on recorded judicial precedents- came to India with the British East India Company. The company was granted charter by King George I in 1726 to establish “Mayor’s Courts” in Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata respectively). Judicial functions of the company expanded substantially after its victory in Battle of Plassey and by 1772 company’s courts expanded out from the three major cities. In the process, the company slowly replaced the existing Mughal legal system in those parts.

Following the First War of Independence in 1857, the control of company territories in India passed to the British Crown. Being part of the empire saw the next big shift in the Indian legal system. Supreme courts were established replacing the existing mayoral courts. These courts were converted to the first High Courts through letters of patents authorized by the Indian High Courts Act passed by the British parliament in 1862. Superintendence of lower courts and enrolment of law practitioners were deputed to the respective high courts.

During the Raj, the Privy Council acted as the highest court of appeal. Cases before the council were adjudicated by the law lords of the House of Lords. The state sued and was sued in the name of the British sovereign in her capacity as Empress of India.

During the shift from Mughal legal system, the advocates under that regimen, “vakils”, too followed suit, though they mostly continued their earlier role as client representatives. The doors of the newly created Supreme Courts were barred to Indian practitioners as right of audience was limited to members of English, Irish and Scottish professional bodies. Subsequent rules and statutes culminating in the Legal Practitioners Act of 1846 which opened up the profession regardless of nationality or religion.

Coding of law also began in earnest with the forming of the first Law Commission. Under the stewardship of its chairman, Thomas Babington Macaulay, the Indian Penal Code was drafted, enacted and brought into force by 1862. The Code of Criminal Procedure was also drafted by the same commission. Host of other statutes and codes like Evidence Act (1872) and Contracts Act (1872).

Law after Independence

At the dawn of independence, the parliament of independent India was the forge where a document that will guide the young nation was being crafted. It will fall on the keen legal mind of B. R. Ambedkar to formulate a constitution for the newly independent nation. The Indian Bar had a role in the Independence movement that can hardly be overstated – that the tallest leaders of the movement across the political spectrum were lawyers is ample proof. The new nation saw its first leader in Jawaharlal Nehru, and a paternal figure in M. K. Gandhi, both exemplary lawyers. Perhaps it is the consequent understanding of law and its relation to society that prompted the founding fathers to devote the energy required to form a Constitution of unprecedented magnitude in both scope and length.

The Constitution of India is the guiding light in all matters executive, legislative and judicial in the country. It is extensive and aims to be sensitive. The Constitution turned the direction of system originally introduced for perpetuation of colonial and imperial interests in India, firmly in the direction of social welfare. The Constitution explicitly and through judicial interpretation seeks to empower the weakest members of the society.

India has an organic law as consequence of common law system. Through judicial pronouncements and legislative action, this has been fine-tuned for Indian conditions. The Indian legal system’s move towards a social justice paradigm, though undertook independently, can be seen to mirror the changes in other territories with common law system.

From an artifice of the colonial masters, the Indian legal system has evolved as an essential ingredient of the world’s largest democracy and a crucial front in the battle to secure constitutional rights for every citizen.

नशीले वस्तुओ का सेवन:

किशोरों के दिमाग को अधिक नुकसान पहुँचाती है शराब अनुसंधान ने यह साबित कर दिया है के आलकोहल किशोरो के विकासोन्मुख दिमागों को आधिक नुकसान पहुँचाता है जबकि पूर्व विज्ञानिक का मत इसके विपरित था। नवीनतम शोध के अनुसार अलकोहल (alcohal) वयस्क दिमागों के अपेक्षा किशोरों के दिमाग को अधिक नुकसान पहुँचाता है। इन खोजो मे इस धारणा को समाप्त कर दिया है कि कई साल तक भारी मात्रा मे अल्कोहल का इसतेमाल करने से ही स्‍नायु तंत्र गंभीर रुप से जख्मी होता है खोज यह बताती है कि शुरुआत मे भारी मात्रा मे अल्कोहल का प्रयोग आपको शराबखोर बनने से रोकने के लिए वाछित स्‍नायु तंत्र की क्षमता को कमज़ोर कर देता है। इस संबंध मे किए गए अनुसंधान यह बताने मे मदद करेगें कि जो लोग किशोरावस्था में शराब पीना शूरु कर देते हैं उसमे शराबखोर बनने की यथावना बहुत अधिक रहती है। आर्काइवस आँफ पैडिएट्रिकस एंड एडोल्सेन्ट मैडिसिन मे प्रकाशित अमेरिका मे ४३,०९३ वयस्कों पर किए गए एक सर्वे के नतीजो के अनुसार जिन लोगों ने१४ वर्ष से कम आयु मे शराब का इसतेमाल करना शुरु कर दिया था, उनमे से ४७ प्रतिशत शराब के गुलाम बन गए जबकि जिन लोगों ने २१ वर्ष के उम्र के बाद शुरु किया उनमे से ९ प्रतिशत ही नशेडी बने। अमेरिकी सरकार की सहायता प्राप्‍त प्रयोगशाला मे किशोर चुहों के दिमाग पर शराब के सेवन का परिक्षण किया गया जिसमे शराब का सेवन करने से होने वाली शारीरिक क्षति के सबसे गंभीर सबूत मिले हैं। इन अध्ययनो मे पाया गया कि शराब पीने से अगले हिस्‍से तथा हिप्पोकैपस में गंभीर कोशकिय क्षति पहुँचती है। हालांकि यह सपष्‍ट नही है कि इन जांच परिणामो को मनुष्य पर कैसे लागू किया जा सकता है। इस खोज मे यह भी सबूत मिले हैं कि युवा शराबी मिलती जुलती कर्मियों से पिडित हो सकते है। अमेरिका सरकार द्धारा प्राप्‍त अनुसंधानकर्ताओं ने सान डिएगो मे लगभग ८ वर्ष तक अध्ययन किया। इस अध्ययन मे पाया गया कि शराब पीने वाले किशोरो ने मौखिक तथा अमौखिक परिक्षा मे बहुत ही घटिया प्रदर्शन किया। डयूक यूनिवर्सिटी में मनोवैज्ञानिक विभाग मे असिस्टेंट रिसर्च प्रोफैसर तथा कालेज परिसर मे अत्याधिक शराब खोरो पर हालिया अध्ययन के सहलेखक एरोन वहाइट कहते हैं कि 'अब इस बारे मे कोई संदेह नही है कि किशोर अवस्था मे शराब के अधिक सेवन से दूरगामी परिणाम बहुत भयंकर हैं । डयूक मे किशोर चूहों पर अल्कोहल के प्रभाव पर हुई खोज मे शामिल डाँ व्हाइट कह्ते हैं, 'हम जानते है कि ५ या १० साल पहले अल्कोहल दिमाग को किसी अन्य ढंग से प्रभावित करती थी । इस ओर तत्‍काल ध्यान देने की आवश्यकता है'। रिसैप्‍टर्स एक या दो ड्रिंक लेने से अभिग्राही की क्रियाएं धीमी हो जाती हैं जबकि इस मे अधिक अल्कोहल का प्रयोग करने पर वे लगभग पूरी तरह ठ्प हो जाते है।

Law & Morality : Moore’s Philosophy

In general view morality is the quality of being in accord with standards of right or wrong conduct. M.S Moore also thinks in the same way. Morality, for him speaks of a system of behavior in regards to standards of right or wrong. The word carries the concepts of: (1) moral standards, with regard to behavior; (2) moral responsibility, referring to our conscience; and (3) a moral identity, or one who is capable of right or wrong action. Morality has become a complicated issue in the multi-cultural world we live in today. Timeless wisdom explains that there cannot be a complete law unless there lays the effect and inclusion of morality. My Project explores what is Moore’s concept of morality and how he explains its affects on our behavior, our conscience, our society, and our ultimate destiny. In this light further to understand his concept completely I would like to analyze in my project the following issues as given below:

Issues
My project deals with the four aspects related to law and morality.
The first is the relationship between the law that obligates judges, and morality: exactly how, does that law relate to morality?
The second relates to the nature of that morality to which the law is related.
The third involves the proper aims and limits of law making in a democratic society: is it possible to legislate morality?
The fourth is the content of that morality apt to be part of the law.

Relation Of Morality To The Law We Have
According to Moore, the question of how law is related to morality is best approached through judicial obligation that obligates judges in their role as judges, and then to further consider how ought judges to use morality in their decision of disputed law cases? How should morality properly enter into judicial decisions?

A. Morality in Judicial Reasoning
Moore’s idea to understand the judicial reasoning is by considering the “obvious law”.[1] This can be understood with the help of certain examples, which he cites. When statutes award custody of minor children to a parent it is most likely in the best interest of the child, award citizenship only to those applicants who possess good moral character, deport those who are convicted of crimes of moral turpitude. This shows that judges in legal systems with obvious law like ours have to make some kind of moral decisions in order to apply such laws to the cases before them

Moore further has explained that why and how Judges are justified. He says, with the force of the state behind them, they coerce people into giving up their money, their liberty and their lives. Such coercion requires justification, which is of course the (obvious) law, which lays down certain doctrines of legislative supremacy and the ban on common law crimes. Some political ideals such as democracy, the separation of powers, and the rule of law make those doctrines a source of judicial obligation.

B. Conceptualizing Morality in Law
Conceptualizing[2] what judges ought to do as judges becomes important. This can be done by finding that whether judges while performing their duties are following the law. Moore here discusses, the ideas of legal positivists. They admit that judges should look to such incorporated moral standards but deny that such standards are part of the law, which raises an analogy. Likewise for cases where the obvious law is indeterminate a positivist advises judges to look to morality because there is no law in such cases. When the judge makes some law by his decision, the law that is made may be morally correct, but it will still be law only because the judge laid it down and not because it is morally correct. On the other hand, the natural lawyer denies both, that the obvious law is all the law, and that the “obvious law” is in fact always law. According to this school of thought there should inclusion of morality in law. We thus face a conceptual choice that is not obvious.

Morality And Our Behaviour
Morality, according to Moore, describes the principles that govern our behavior. Without these principles in place, societies cannot survive for long. In today's world, morality is frequently thought of as belonging to a particular religious point of view, but by definition, we see that this is not the case. Everyone adheres to a moral doctrine of some kind to ensure fair play and harmony between individuals; (2) to help make us good people in order to have a good society; and (3) to keep us in a good relationship with the power that created us. Unless we live in a dictatorial society, we are free to choose our own personal moral code. The question is, what happens when our choices conflict with each other? If we do not have an absolute standard of truth, chaos and conflict will result as we are all left to our own devices and desires.

Morality And Law
According to Moore, there seems to be no distinction between law and morality. Greek writers, he quotes, suggest that the good person is the one who will do what is lawful. It is the lawgivers, in these early societies, who determine what is right and wrong. What should be legal roughly corresponds to what is really right or just, that is, what we would call morally right. We find, for instance, the distinction between what is legally or conventionally right and what is naturally or morally right. Sometimes this is expressed as an opposition between what the gods command (i.e., what is morally right) and what the political authorities command (i.e., what is legally right). The knowledge of what is just or moral, and the ability to distinguish true justice or morality from what is merely apparently just depends on the full development and use of human reason.

How Does Morality Relate To The Law We Ought To Have?
Moore moves forward from the relation of morality to the law that binds judges, to the relation of morality to the content of what ought to be law in a liberal, democratic state. He thus, moves from the judicial role to the legislative role. Legislators no less than judges need a theory of their role, a theory about what are and are not proper ends to be sought via legislation. A legislator should simply represent accurately the views of his or her constituents, whatever those views might be with respect to the new law proposed to be created. But where do we find a theory of proper legislative ends? The obvious answer for Moore, is, “morality.” Where there is no obvious law available to a judge morality is referred on the subject.

Mill thought that one of the aims forbidden to legislators in a liberal democracy was the aim to legislate morality. Only legislation aimed at preventing behavior harmful to others was proper; legislation aimed at promoting morality was as much condemned, as was paternalistically motivated legislation. E.g.: the state should not coerce or encourage any moral conception of the good life; or the state should refrain from legislation on moral matters where there is no overlapping consensus; or the state should only provide the fair framework in which differing moral visions can compete; etc

The critique of Mill and these Post-Millian liberalisms is very simple. If something is morally good, that gives each of us a reason to promote its attainment. That is as true of legislators as of anyone else. If laws can be made that promote justice, there is good reason to make such laws. How liberal they are depends on the structure of morality they would enact into law. If that morality contains such items as a general right to liberty, then a moralist legislator should respect that part of morality too. Mill’s harm principle is not a limit on proper legislative aim rather it is a theory of when behavior is morally wrong. Most harming of others without their consent is morally wrong, and most seriously immoral wrongs consist of causing such harms. According to Moore, Austin had it right, when he held that we should legislate morality. The law we ought to have should be as near to morally correct as we can make it. But Moore can be criticized here, when he supports legislation of morality, which is practically impossible

Should Real Or Conventional Morality Be Part Of The Law?
Moore further discusses here a meta-ethical issue: that whether “is and ought” which is to be a part of the law, real or conventional morality? Is it so that the moral beliefs shared by citizens are the mores of our society? Or is it what some call “critical morality,” and what Moore calls real (or the correct) morality? The second issue is a substantively ethical question: is that morality utilitarian including justice as something to be maximized?

Moore examines the first issue here and the second in the succeeding section. He assumes that meta-ethical relativism is false. The argument for use of conventional moral beliefs that interests him proceeds not from necessity but from desirability. The idea is that it is right to look to popular, generally accepted moral beliefs when questions of morality arise in the law. That at least is the shape of the conclusion.

1. Supposed wisdom of many
Moore says, everyone has quite a few firmly held moral beliefs. Is it likely that they can render those beliefs doubtful because many others disagree with them? If truth in morality is really so hard to achieve, why defer to others, who surely are as muddled as are you? There is another argument for use of conventional morality in law, but it is distinct and merits separate mention. This is the idea that perhaps, conventional morals are a good heuristic to true morality. Whether a particular murderer really deserves to die, for example. In this case we use conventional morality, not because it is more likely true, but because thinking about conventional morality gets us to our own best views of what true morality requires.

Somewhat more plausible, perhaps, is deference based, not on the fact that conventional moral beliefs are correct, but on the fact that they are conventional, i.e., they are what most people think. Social peace and harmony is worth the price of living under incorrect moral beliefs. In the Law We Ought to Have Supposed these democratic and “peace-at-any-cost” ideals, which convince one to use conventional morals whenever morality enters the law. This conventionalist legal moralism would mean that there are no principled limits to what may be legislated by a majority. Lord Devlin showed us this in his debate with Herbert Hart in the 1960’s. Seeing this makes it easy to see why Mill thought he should be arguing against legal moralism as much as against legal paternalism. Mill took this to be an example of legal moralism doing its pernicious work. Yet what if Mill thought that polygamy was deeply immoral, perhaps like female circumcision in certain African tribes. Wouldn’t his outrage have been eliminated – because then, the Americans would have been legislating true morality and not (a largely incorrect) conventional morality about sex. Mill surely thought (as also Moore) that polygamy was no big deal morally speaking, and therefore that using the coercive force of the law to stamp it out was unjustified. In this case, Mill’s real target was the use of conventional morals as the basis of legislation, not the use of morals as such.

2. In the Law We Have
Now turn to morality in the law we have, the law that obligates judges in their roles as judges. As we saw, there are four ways by which morality enters into the law we have, and let us consider how it looks if we plug conventional morality in at each of these four points.

(1) The explicit incorporation of moral standards into legal standards.
Consider the constitutional case first. As noted earlier, the U.S. Constitution explicitly requires moral judgments by judges as they exercise “the great power” of judicial review. Despite the rhetoric of many Supreme Court opinions – that judges should look to “the canons of decency and fairness which express the notions of justice of English-speaking peoples” (Frankfurter), “the canons of decency that mark the progress of a maturing society” (Earl Warren), “the values, so rooted in the traditions and conscience of our people as to be ranked as fundamental” (Cardozo), “the narrowest social tradition” (Scalia), etc. – using conventional morality in exercising the power of judicial review makes no sense. For remember, what is being reviewed is the product of consensus moral beliefs, a statute enacted by a representative legislature. It makes little sense for a court to use that same conventional morality to review an expression of it by a more representative body.

This general point is reinforced by a point specific to the rights-protecting clauses of the U.S. Constitution. Such rights become important when their support does not command a majority so that they will not win out in the political process. The idea that there are such minority rights against majority views again makes little sense if these rights are given conventional i.e., majoritarian interpretations. A right good against the majority only when the majority agrees with it is not much of a right. These arguments are unavailable when it is not constitutional law that incorporates moral standards, but is common law or statutory law. One argument common to all three kinds of law is based in language use. On the theory of meaning Moore have long thought correct, he says, when we speak we ordinarily refer to things whose nature guides our meaning. If I request that you “prospect for gold,” I expect you to bring me stuff that is really gold; “fool’s gold,” or other stuff commonly thought to be gold, will not be what is meant. The same is true of moral usages. If legislatures direct judges to find wherein lies the best interest of a child, or whether a petitioner for citizenship does or does not possess good moral character, they like all other speakers should be construed to mean what is really best or good, not what most people think is best or good.

It is possible of course, for prior judges, legislatures, or constitutional conventions to mean something else. It is possible they meant for judges to look to popular moral beliefs. It is even possible they meant for judges to look to their (the law-givers’) moral beliefs on these matters, whether such beliefs were conventionally accepted or not. But absent some special context making the existence of these special interpretive intents plausible, surely law-givers should be seen like other language users. Judges are to ascertain where the child will really be better off, not guess at what most people would think on the matter.

(2) The justification of the obvious law by the thoughtful judge.
As we have seen, the thoughtful judge justifies the use of obvious law like statutes by political ideals such as democracy and the rule of the law. It is this exercise that justifies judges in using the coercive power of the state to order the litigants before them to give up their property, their liberty, their children, and their lives. It is inconceivable to Moore that judges could ever feel satisfied in this justificatory task, if they repaired only to conventionally accepted versions of democracy, the rule of law, etc. For notice how personal is this question: “what justifies me in doing what I am about to do?” That others think it fine cannot answer for me. “Do I think it’s fine?” is the relevant question, and for that question only ideals that I accept as true can fit the bill.

(3) Filling in the indeterminacies in the law in hard cases.
In cases of conflicting legal standards, cases of first impression, and cases of penumbral application of legal standards – Fuller’s “hard cases” – conventional morals has perhaps its most plausible use. The fact that these “legislators” i.e., judges in hard cases, are not subject to the discipline of frequent, regular election might incline one away from the conception for which Moore had earlier argued. As many legal philosophers have noted that the views of judges in hard cases doesn’t reflect the continuity judges rightly sense, between what they do in hard cases and what they do in easier ones. On the “molecular legislation” view, judges do two quite different things: in easy cases they apply the law, and in hard cases they make new law. In hard cases there is an extension of what went before, not the fresh beginning suggested by the phrase, “judicial legislation.” Judges owe an obligation to extend the past in a way legislators do not.

Therefore, conventional morality should not be used in doing the interpretation required in hard cases. But how are we to conceive of “the past” to which judges owe fidelity in hard cases? Should we see the obvious law that is to be extended in hard cases as: (1) a reflection of the community’s moral beliefs? (2) an imposition of the law-givers’ moral beliefs at the time that law was laid down? or (3) a reflection of some underlying ideal of justice, partially and somewhat inaccurately expressed by the obvious law? If it is the first, then judges might well seek to extend that past consensus by bringing it up to date with the present consensus. If it is the second, then judges might well seek to extend that past imposition in light of those lawgivers own views of what they did. If it is the third, then judges should seek to extend that attempt to capture justice with their own best insights as to what justice requires. Which of these views to adopt is not be settled by history. It should not matter much how law-givers of the past viewed what they were doing. The question for judges is a more straight forwardingly normative one. In Moore’s vicarious judging, judges should see law makers of the past as striving for justice, and should thus join them in the task of achieving it.

Conclusion
Moore has summarized the relationship between morality and law in the following manner:
(1) On one hand the existence of unjust laws (such as those enforcing slavery) proves that morality and law are not identical and do not coincide.

(2) On the other hand the existence of laws that serve to defend basic values such as laws against murder, rape, malicious defamation of character, fraud, bribery, etc., prove that the two can work together.

(3) Laws can state what overt offenses count as wrong and therefore punishable. Although law courts do not always ignore a person's intention or state of mind, the law cannot normally govern, at least not in a direct way, what is in your heart (your desires). Because often morality passes judgment on a person's intentions and character, it has a different scope than the law.

(4) Laws govern conduct at least partly through fear of punishment. Morality, when it is internalized, when it has become habit-like or second nature, governs conduct without compulsion. The virtuous person does the appropriate thing because it is the fine or noble thing to do.

(5) Morality can influence the law in the sense that it can provide the reason for making whole groups of immoral actions illegal.

(6) Law can be a public expression of morality, which codifies in a public way the basic principles of conduct, which a society accepts. In that way it can guide the educators of the next generation by giving them a clear outline of the values society wants taught to its children.

Further Moore says suppose law had no connection to morality. Suppose, that the content of the law we ought to have is fully determined by what a majority of citizens wants. Then to know what ought to be made law as a legislator is to know the results of the most accurate opinion surveys. It is morality in the law that makes law worthy of our intelligence and our interest. It is the morality in the law that makes the philosophy of law truly philosophical.

International Criminal Court and Universal jurisdiction: Sacrificing sovereignty for security?

The International Criminal Court (ICC) is an organ meant to preserve and maintain a just social order internationally. Whether or not its creation was with bona fide motives or not may be debatable , the fact of the matter in my opinion, as that of several authorities on the subject, is that its existence indeed helps serve this purpose, and this will be more so, if it is granted universal jurisdiction.

The ICC was established in 2002, with its official seat in The Hague, Netherlands as a permanent tribunal to prosecute individuals for genocide (an international crime involving acts causing serious physical and mental harm with the intent to destroy, partially or entirely, a national, racial or religious group ), crimes against humanity (brutal crimes that are not isolated incidents but that involve large and systematic actions, often cloaked with official authority, and that shock the conscience of humankind ), war crimes (violations of international laws governing the conduct of international armed conflicts ), and the crime of aggression (armed invasions or attacks, bombardments, blockades, armed violations of territory, permitting other states to use one's own territory to perpetrate acts of aggression and the employment of armed irregulars or mercenaries to carry out acts of aggression ), though it cannot currently exercise jurisdiction over the crime of aggression. The court came into existence on the 1st of July, 2002 - the date its founding treaty, the Rome Statute of the International Criminal Court, came into force - and it can only prosecute crimes committed on or after that date.

As of October 2007, 105 states are members of the Court. A further 41 countries have signed but not ratified the Rome Statute. However, a number of states, including the United States, India and China, are critical of the Court and have not joined. The reasons for this have been discussed later in this essay.

The history of the emergence of the Court may be discussed. In 1948, following the Nuremberg and Tokyo Tribunals, the United Nations General Assembly recognised the need for a permanent international court to deal with atrocities of the kind committed during World War II. At the request of the General Assembly, the International Law Commission drafted two draft statutes by the early 1950s, but these were put on the shelf because the Cold War made the establishment of an international criminal court politically unrealistic.

A. N. R. Robinson, then Prime Minister of Trinidad and Tobago, revived the idea during the forty-fourth session of the General Assembly in 1989, proposing the creation of a permanent international court to deal with the international trade in drugs. While efforts began to be made on a draft statute, the international community established ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda, further highlighting the need for a permanent international criminal court.

Following years of negotiations, the General Assembly convened a conference in Rome, Italy, in June 1998, with the objective of finalising a treaty. On July 17, 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were Iraq, Israel, Libya, the People's Republic of China, Qatar, the United States and Yemen.

The Rome Statute became a binding treaty on 11th April, 2002, when the number of countries that had ratified it reached 60. The Statute, as mentioned earlier, legally came into force on July 1, 2002, and the Court can only prosecute crimes committed on or after that date. The first bench of 18 judges was elected by an Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the Court on the 11th of March, 2003. The Court issued its first arrest warrants on 8th July 2005, and the first pre-trial hearings were held in 2006.

Some light may be thrown on the jurisdiction of the Court. Article 5 of the Rome Statute grants the Court jurisdiction over four groups of crimes, referring to them as the “most serious crimes of concern to the international community as a whole”: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression (as has already been mentioned). The Statute defines each of these crimes except aggression: it provides that the Court will not exercise its jurisdiction over the crime of aggression until such time as the state parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.

Many states urged for the addition of terrorism and drug trafficking to the list of crimes covered by the Rome Statute; however, the states were unable to agree on a definition for terrorism and it was decided not to include drug trafficking as this might lead to problems, keeping in view the Court's limited resources. India lobbied to have the use of nuclear weapons and other weapons of mass destruction included as war crimes but this move was also defeated. India has expressed concern that “the Statute of the ICC lays down, by clear implication, that the use of weapons of mass destruction is not a war crime. This is an extraordinary message to send to the international community.”

Some commentators have also expressed the view that the Rome Statute defines crimes too broadly or too vaguely. For example, China has argued that the definition of ‘war crimes’ goes beyond that accepted under customary international law.

Article 123 of the Rome Statute provides that a Review Conference shall be convened in 2009, and that this conference may review the list of crimes contained in Article 5. The final resolution on adoption of the Rome Statute specifically recommended that terrorism and drug trafficking be reconsidered at this conference.

During the negotiations that led to the Rome Statute, a large number of states argued that the Court should be allowed to exercise universal jurisdiction. However, this proposal was defeated, largely due to opposition from the United States. A compromise was reached, allowing the Court to exercise jurisdiction only under certain limited circumstances, namely:

• where the person accused of committing a crime is a national of a state party (or where the person's state has accepted the jurisdiction of the Court);

• where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the Court); or

• where a situation is referred to the Court by the UN Security Council.

The Court is intended to be a court of last resort, investigating and prosecuting only where national courts have failed. Article 17 of the Statute provides that a case is inadmissible if:

“(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.”

Article 20, paragraph 3, specifies that, if a person has already been tried by another court, the ICC cannot try them again for the same conduct unless the proceedings in the other court:

“(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.”

Indeed, the establishment of the International Criminal Court is a positive development and helps in the establishment of an international check for all governments not to engage in or turn a blind eye to human rights violations. However, this hardly means that this is enough. This is in fact, just the beginning. In the words of Dr. S.K. Kapoor, a well-known scholar of international law in India and formerly Reader in the Faculty of Law, Lucknow University-

“The adoption of the Rome Statute of the International Criminal Court is a great achievement. There are, however, some glaring shortcomings. For example, the crimes of hijacking and terrorism which pose a great menace to the international community, especially to the innocent men, women and children, have not been included in the list of crimes over which the International Criminal Court shall have jurisdiction. Similarly, the enforcement mechanism derived is far from satisfactory. The Statute shows that states are yet not prepared to establish a strong Court having compulsory jurisdiction over international crimes. The Statute represents the maximum agreement that could be reached in the present circumstances. A welcome feature of the Statute is the provision of review of the Statute seven years after the entry into force of this Statute. Let us hope that when a Review Conference is held the present shortcomings will be removed. A good and auspicious beginning has been made with the adoption of the Statute. It is rightly said that well begun is half done, so be it.”

The concept of universal jurisdiction may be examined. Universal jurisdiction or universality principle is a controversial principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish.

Several countries, such as Belgium, Canada, Germany, Israel, Spain and the United Kingdom, have passed laws in this spirit, thereby allowing themselves to try anyone anywhere in the world for what they consider is a grievous crime. There have also been cases, like Adolf Eichmann being carried off by Mossad agents from Argentina and being tried in Israel, for killing Jews, though Israel was in no way directly involved.

I, like several eminent jurists, do not support the concept of universal jurisdiction in this sense, though in some ways, it may have proved to be useful for convicting genuine criminals. Such a policy is prone to political misuse, and only an international tribunal should have jurisdiction over all people committing grievous crimes that affect humanity the world over. The international tribunal for such crimes is the ICC, and I fully support the idea of giving it universal jurisdiction, so as to have a better tomorrow. However, for this to happen, all states must cooperate in handing over perpetrators to states where the crimes have been committed, so that they can be tried, since the ICC is a court of last resort (if the courts of the countries do not punish the perpetrators, an appeal can be made to the ICC). We have already discussed the shortcomings in the ICC in its present form, but the solution lies in removing these shortcomings, rather than opposing the ICC, a non-political body, comprising judges from the world over. As US Senator Patrick Leahy (the views expressed by him differ from those expressed by the prevalent Bush government) puts it, “…I recognize that improvements can be made to the ICC through further negotiations.”

Opposition to the ICC and the real reasdon for the same
Governments of countries like the United States of America, China and, unfortunately, even India oppose the ICC, in my opinion, only to immunize themselves and those abetted by them or those they do not wish to punish, from the action that the ICC can take against them. However, it is noteworthy that many people in these countries are all for the ICC. Two such persons have already been mentioned – Dr. S.K. Kapoor from India and Patrick Leahy from the United States, and more such people have been mentioned subsequently in the essay.

We may begin with the only superpower in today’s world, the United States. It has made several attempts to oppose the ICC. President Bush signed the anti-ICC Nethercutt Amendment and put sanctions on countries that support the ICC. It has passed the American Servicemembers' Protection Act (ASPA) prohibiting U.S. cooperation with the International Criminal Court. It is noteworthy that before it was enacted, ten Senators sent a letter to Secretary of State Colin Powell urging him “to reject the option of a diplomatic confrontation with our allies in an effort to try to kill the Court.” President Bush ‘unsigned’ the Rome treaty of the ICC. In a letter to the then UN Secretary General Kofi Annan, US Under Secretary of State for Arms Control and International Security John R. Bolton wrote-
“This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary's status lists relating to this treaty.”

In the words of US Senator Patrick Leahy (who has been quoted earlier as well), “I am deeply disappointed that the Administration has decided to 'unsign' the Rome Treaty on the International Criminal Court (ICC). This unprecedented decision will not protect U.S. citizens and military personnel from the Court's jurisdiction. Rather, it will work against U.S. interests by undermining our moral authority on this critical issue… “ Mr. Collin Powell, US Secretary of State, has justified the ‘unsigning’ in the following words – “the ICC, where prosecutors and a court beholden to no higher authority, not beholden to the Security Council, not beholden to anyone else, and which would have the authority to second-guess the United States after we have tried somebody and take it before the ICC, we found that this was not a situation that we believe was appropriate for our men and women in the armed forces or our diplomats and political leaders.” However, it is noteworthy that the ICC is a court of last resort and that obviously, there will have to be a court at the top of the hierarchy. “The ICC is the best international forum for combating impunity and bringing to book perpetrators of serious crimes, which often go unpunished”, says Usha Ramanathan, a New Delhi-based independent law researcher. “It is ideally placed to achieve justice for all, to act as a court of last resort, to remedy the deficiency of ad hoc tribunals, to deter future perpetrators of heinous crimes, and to have true and lasting peace, based on justice.”

Not only has the US ‘unsigned’ the ICC treaty, it has also got other countries such as East Timor and Romania to protect its citizens from being offered to the ICC by these countries. The agreement between the US and East Timor, signed August 23, 2002 states that either of the two countries “shall not, absent the expressed consent of the first Party,

(a) be surrendered or transferred by any means to the International Criminal Court for any purpose, or
(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to the International Criminal Court.”

It is noteworthy that the ‘Parties’ referred to are the United States and East Timor. However, the US campaign against the ICC has not been a grand success. In the words of Reed Brody, Special Counsel with the reputed international organization, Human Rights Watch -
“The U.S. campaign has not succeeded in undermining global support for the ICC and universal jurisdiction. But it has succeeded in making the U.S. government look foolish and mean-spirited. Many countries continue to ratify the ICC treaty, and the court last month swore in its first prosecutor, a distinguished Argentine jurist teaching at Harvard Law School.”

We may discuss at some length, why the US is actually opposed to the ICC. It has been worded beautifully by Reed Brody when he says, “the Bush administration is engaged in a worldwide crusade against the ICC and universal jurisdiction, which it sees as incompatible with its vision of U.S. global supremacy. The United States apparently wants to immunize itself from any international legal restraint on its conduct by barring even the theoretical possibility that the actions of top U.S. officials could be questioned by the ICC…”

In this context, we may discuss some of the human rights violations carried out by the US in Iraq. In an article written by Praful Bidwai, an internationally known author and human rights activist, he mentions –
“The John Hopkins School of Public Health in the U.S. estimates that Iraq's occupation has resulted in the avoidable deaths of 655,000 civilians since the country's invasion in March 2003. Even before the war, sanctions imposed at the behest of the U.S. led to the death of an estimated one million Iraqi civilians, half of them children.”

This apart, several atrocities were committed by the US soldiers in Iraq. Beginning in 2004, accounts of abuse, torture, rape and homicide of prisoners held in the Abu Ghraib prison in Iraq came to public attention. The acts were committed by some personnel of the 372nd Military Police Company of the United States, and possibly additional American governmental agencies. It is largely believed that the punishments awarded to the perpetrators in the US Army were not enough.

Also, while the capital punishment awarded to Saddam Hussein may be justified, gross human rights violations were committed against him during the trial, thus basically not letting his trial be a free and fair one. As mentioned by Praful Bidwai in his article –
“Had the ICC tried Hussein for his alleged crimes against humanity, it would have averted the numerous flaws that marked his prosecution by the SICT , noted by the United Nations' Working Group on Arbitrary Detention (UGAD), established by the UN Commission on Human Rights. UGAD received its mandate from the General Assembly and the UN Human Rights Council.

UGAD held that ‘the deprivation of liberty of Saddam Hussein is arbitrary, being in contravention of Article 14 of the International Covenant on Civil and Political Rights (ICCPR).’ The accused were denied the elementary right to defend themselves. Hussein didn't have unimpeded access to his lawyers, nor adequate facilities to prepare his defence. Two of Hussein's lawyers were assassinated. This ‘seriously undermined his right to defend himself through counsel of his own choosing.’
SICT judge Abdel-Rahman, who delivered the final verdict, abruptly, arbitrarily ended the trial in Jun. 2006. He made ‘statements incompatible with impartiality and the presumption of innocence enshrined in Article 14(2) of the ICCPR.’ Even before the trial ended, Iraqi Prime Minister Nuri Al-Maliki demanded that Hussein be hanged. More recently, he declared the hanging would take place before the end of the year, thus usurping the judiciary's prerogative. The final procedural clearances were obtained in unseemly haste.”

Considering all this, it becomes clear that the US opposes the ICC only to immunize itself from the action it (the ICC) can take against it, and not for any of the reasons it states for doing so, which are merely excuses. One reason cited by the US, as mentioned earlier, is that there is no court above the ICC, and it has already been explained that this argument makes no sense. Another reason cited by the US is that its soldiers and officials would be the target of politically motivated prosecutions, hampering its ‘peacekeeping’ efforts around the world. It is worth mentioning that the US human rights violations were by no means in the spirit of ‘peacekeeping’ and that it went against the Charter of the UN, the international peacekeeping organization, of which the US is a founder member, by declaring war on Iraq. On September 16, 2004, Kofi Annan, the then Secretary General of the United Nations, said of the invasion, “I have indicated it was not in conformity with the UN charter. From our point of view, from the charter point of view, it was illegal.”

Next, China’s position with respect to the ICC may be taken up. The reasons for the opposition of the Chinese government to the ICC are not too far to seek. In a country, where in its communist setup, human rights are blatantly violated, as is evident from the assassination of protesting students at Tiananmen Square in 1989 , the government would obviously not come out in support for an international criminal tribunal.

Finally, the case of India. While enlightened public opinion in India is, to quite an extent in favour of the ICC, there have been human rights violations, such as by army personnel in the northeast against even innocent civilians, communal riots, such as in Gujarat in 2002 , or more recently, the murders and rapes of peasants in Nandigram in West Bengal , often believed to involve political parties, and therefore the government does not wish to subscribe to the jurisdiction of the ICC for this reason.

Question of sacrificing security for sovereignty
Now we arrive at the question of whether states subscribing to the jurisdiction of the ICC and giving it universal jurisdiction would mean sacrificing sovereignty for security. In this connection, we may first define the word ‘sovereignty’. It means ‘supreme dominion, authority or rule’. While every government must have supreme authority as such, if it is to be misused or not used properly, there is no harm in having, and definitely there should be, an international criminal tribunal without geographical limits on jurisdiction (so that the perpetrator can run, but not hide), to ensure the security of all human beings, to ensure that major crimes, affecting large masses should be checked. Moreover, the ICC is a court of last resort, and does not interfere if justice has been imparted by the domestic judiciary of any country. As Praful Bidwai points out, “The ICC statute contains numerous checks and balances to prevent possible misuse. It is based on the principle of complementarity - that is, it would complement national legal systems, and not act as a substitute for them. The prosecutor cannot start an investigation without permission from a pre-trial chamber of three judges.” If subscribing to the ICC and giving it universal jurisdiction means, to some extent, sacrificing sovereignty for security, the sacrifice is more than worth it.

“The ICC represents a major advance over existing arrangements”, says Saumya Uma, coordinator of ICC-India, the Indian Campaign on the International Criminal Court. “It allows individuals to be prosecuted fairly and in conformity with international law in a genuinely global forum on the principle that crimes against humanity and war crimes are the concern of the entire world and not one specific nation-state. Yet, some states have been opposing it on spurious and narrow grounds of ‘sovereignty'.” In this respect, the view expressed by Bernhard Graefrath assumes significance – “…the competence of an international criminal court will ultimately only curtail concepts of sovereignty which are basically already outdated under the existing order of international law. This is true, at any rate, insofar as offences against the peace and security of mankind are concerned; acts constituting offences of this kind are international matters lying outside the area of state sovereignty. Accordingly, if states are to strengthen the international legal order, they must create as effective a mechanism as possible for the international prosecution of these offences.”

Richard Goldstone, a former judge of the Constitutional Court of South Africa, eminent leader in residence at the Joan B. Kroc Institute for Peace and Justice at the University of San Diego and chairman of the Institute for Historical Justice and Reconciliation at the Salzburg Seminar, supporting the concept of an international criminal tribunal with universal jurisdiction, recalls an incident, when he was chief prosecutor for the ad hoc war crimes tribunal for the former Yugoslavia, showing how international efforts help bring about justice-

“In the summer of 1995 I received a call from a television journalist who was in tears. She had interviewed a man who had participated in the massacre in Srebrenica. He admitted to having shot at least 71 Muslim men and boys in the back of the head. He also drew a map with remarkable accuracy showing exactly where the mass grave was located. The reporter took the map to the U.S. Embassy in Belgrade, but then she did a rather unfortunate thing. She called her London office and told them about the interview. The call was tapped by the secret police in Belgrade. At the airport, the video of the interview was confiscated. She feared the police would murder the witness. I immediately secured an order requesting Serbia to hand over the witness. Not only was he not killed, he was eventually delivered to the court in The Hague. With the evidence he provided, as well as satellite photographs, we were able to locate the graves and prosecute him for a war crime. The same evidence provided the basis for some of the charges against Milosevic. This evidence not only allowed us to bring suspected war criminals to justice, it also established the historical record.”

He further goes to say-
“A permanent International Criminal Court plays an important role not only in serving justice in the immediate present, but in laying the groundwork for preventing future conflicts. Good evidence makes for good justice. It also makes for credible history. And, let's hope, a more peaceful future.”

Is India Actually Developing?

“I used to think I was poor. Then they told me I wasn’t poor, I was needy. Then they told me it was self-defeating to think of myself as needy. I was deprived. (Oh not deprived but rather underprivileged.) Then they told me that underprivileged was overused. I was disadvantaged. I still don’t have a dime. But I have a great vocabulary.” - Jules Feiffer

Who is developing?-
Sensex has touched the 20,000 mark within a short period of time. The bulls are roaring on Dalal Street. Traders are celebrating it. The soaring Sensex has become a symbol of India's growing economy. But what does it indicate — that India is one of the fastest growing economies in the world? Indeed, everyone should be happy that India is doing well and receiving huge inflows of foreign exchange. This is becoming the breaking news of the media and it is shown in such a way that India is developing very fast. All magazines, newspapers and TV channels are representing this rise with the development of the country. But there is a point that is Sensex or any other stock market indices should be taken as criteria of development? If is it so then why people are not smiling all that much? The truth is that Sensex reaching great heights and high industrial growth has little meaning for the common man. It is not benefiting the common Indian because when it is showing up as higher profits for the corporate sector, it translates to higher salaries and bigger perks for top executives. Thus it is not benefiting the common or poor India. Why is the rise in Sensex not affecting the fortunes of all? This is because only a few million people are investing in the equity (shares) of companies. Indians invested only 6.2 per cent of their total savings in equity-related instruments in 2007 and equity and mutual funds accounted for only 1.2 per cent of the GDP in 2007.[1] So rising Sensex is benefiting to only few people that have invested in it. This seems to be the by-product of the Global Economy, benefiting only the upper classes and elites while the poor get poorer.

Government policies are also seems to be concentrate on the matters of big industries. Government also shows indices like Sensex and Nifty as criteria of the progress of the country. Earlier the slogan of political parties was “poverty eradication” but now days they talk about Forex, Sensex and economic buoyancy. The government says that purchasing power capacity of people is increased. But we should not see the purchasing power of the people who buy luxurious items like car, T.V. etc. We should see the point that prices of wheat, rice, edible oil and pulses have risen and poor people are not able to buy this. Prosperous India has not yet provided sufficient social infrastructure to make the country less brutal for those at the bottom. India is a democratic country. Whether that democracy is a democracy wherein a small portion of people is being benefited and where there is poverty, they are not getting benefited?

Government’s point-
According to Gandhiji we want independence for effecting change in the system. I think that we have not succeeded in that goal. Sensex, Forex, growth rate, saving and investment are increasing but inequality has also been increasing. Inequality always creates dissatisfaction. We must think about poorest of the poor people and not about rich people. Your policy should be guided for poor people. This government is running by great economists and these led to the situation where common people cannot buy vegetables. Government shows great affection towards the big industrialists. They provide them with each and every requirement whether in terms of money, resources or with land. But both government and private sector are not performing their civil duty. Charity, civic duty and pressure on both the state and the private sector to sustain anti-poverty programmes are rare. Our politicians are seriously concerned when their interests are at stake (the Sensex being one of them) but they hardly care for the millions who go hungry. Hunger and poverty will not be eliminated as long as they form the basis of vote-bank politics.[2]

Poverty in India is present from a long time, no matter which government comes to power. Seat sharing is become the most important work of the parties. Even after 40 years of garibi hatao campaign launched by Indira Gandhi we are still lagging behind Ethiopia in hunger eradication. With the economic buoyancy in industrial sector the investment is increased in this sector. But we need more investment in social sector to increase the status of poor. In India 26% i.e. 260 million people are below the “official” poverty line. In comparison to China, they have only 6 million people who can be termed as poor.

Agriculture sector-
India’s most of the population is engaged in the agriculture sector. This sector is also suffering from many obstacles. Farmer is the biggest producer and farmer is the biggest consumer. Farmer is getting poorer day-by-day. Farmers are commuting suicides. Till the farmers do not get right prices for their produce, they will not get benefited directly. [3]Agriculture, too, needs investment and farmers require credit to remain viable. But today most farmers remain poor without having adequate access to credit and have to migrate from farms to towns in search of work, as productivity and output are low and the size of farms small. Most farmers do not even own the land they are tilling. And the farmers who have their farms to cultivate are forcing to give their land to Special Economic Zones (SEZ). India is trying to attract foreign investment to spur its economy and help develop its largely backward infrastructure. In part, it has chosen to do this by setting up Special Economic Zones, where companies get tax breaks to open businesses and factories. But critics say farmers are often forced from their land or cheated of its value when it is acquired for these projects. On 29th October 2007, 27,000 landless people were gathered to march to Parliament and to protest against government. "Day-by-day the Sensex goes up but the common people get nothing from this," said Anil Gupta, a march organizer, referring to the Bombay Stock Exchange's benchmark index. "People here are asking only for the basics. There is no greed. They don't want clothes or electricity, just land so they can feed themselves," he said. ‘’In the recent years of economic liberalization, the programme of land distribution among the landless has been badly neglected while hundreds of thousands of acres that belonged to small peasants have been taken away for industries, mining, dams and others projects. Their already meager share of the land is diminishing. Non-violent struggle for protecting the land rights of the poor cannot be delayed any further,’’ said P.V. Rajagopal, the main organizer of the march and chairman of the internationally-known Ekta Parishad movement. [4]

If multinationals needs land government provide them but if landless want land, government denied them. All matters of land reforms laws like SEZ come under 9th schedule. Earlier the rule was that laws under 9th cannot be review by court but now after the Supreme Court decision that court can interpret the laws come under 9th schedule, there is a little hope that this discrimination of farmers could be stop. But it is not so easy. Nandigram issue is an example. Government is giving the land for SEZ that is fertile and producing. This totally shows the unfriendly nature of the government with the poor farmers. Indian property laws are unsettled and are not precise and this also helps the government to acquire the land of poor landowners. And the other factor is red tapping and corruption that also allows exploiting these farmers. So we cannot just blame big industrialists. There are so many loopholes present in our system. Farmers are committing suicides because they are not able to give interest of the loan. There is no facility of small credit without any security like in Bangladesh where Gramin Bank of Yunus Khan is giving small credit without any security.

Cause of poverty-
The main cause of poverty in India is unemployment. This is also because of illiteracy. The poor people cannot afford private school education and the level of government education is very bad. So we can say that only few can get jobs in the future because of lack of education and qualification. The poor people also cannot open their own business because they are not able to get sufficient credit. This is because of lack of education and lack of sufficient security. The credit only goes to the rich people who have collateral securities.

Consequences of poverty-
Due to poverty poor people are not able to invest and even save money. Saving and investing are become only the business of well-to-do people. In real sense, India is experiencing such situation where economic development is only helpful to the rich and more secured people. On one hand people are talking about airplanes, latest mobiles, LCD TVs, five star hotels, abroad education etc. but on the other hand people are deprived of even basic needs like shelter, food, primary education, proper sanitation, pure water, permanent jobs, etc. Such contrasts are not sustainable, and this is clearly evident from the rising protests, incidents of violence, the crime rate, insurgencies and Naxalite activity.[5]

Separation of classes-
Indians are now divided into three parts- upper class, middle class and lower class. The upper class i.e. the big businessmen are always trying to attract middle class because they see them as their market. They do not bother about the poor class. Not only upper class is responsible for this situation but also middle class is also responsible for this. Middle-class Indians who feel little obligation to the poor tend to believe that they have made their contribution simply by becoming middle class. They focus on their own needs because they have overcome a great deal to get where they are and still fear slipping back. Moreover, they say, why give to the state when corrupt politicians will just waste the money? Meanwhile, small charities oriented towards children and women are sprouting up across the country. But life expectancy at birth across India as a whole—62 for men, 64 for women—is lower than in poor Latin American countries like Guatemala and Nicaragua, and the poorest rural families eat less rice than they did five years ago. And no statistic can capture the agonizing sight of a barefoot, ragged four year old doing somersaults at a traffic light to earn a rupee.[6]

Government launched the Rural Employment Guarantee Scheme to give employment to the poorest to the poor. It is launched with the aim of providing 60m people a measure of financial protection, through guaranteed work and unemployment benefit. But this scheme is also seems not more than a political tool. Again red tapping, bad governance and corruption are the obstacles that are likely to come before this scheme.

It is not true that India is not developing that India is not developing but it is not developing altogether. Some of the Indian states are doing well. In Tamil Nadu, half the population lived below the poverty line in the mid-1960s, but effective contraception, female education and primary healthcare led to population stability and a consequent drop in poverty by the end of the century. But in Bihar, which had the same percentage of people below the poverty line in the 1960s, the population still grows at a staggering pace, making anti-poverty measures hard to pursue. Both Assam and Punjab have histories of political violence and a poor school system, but the latter's infrastructure allows for a standard of life far ahead of the former.[7]

Conclusion-
It’s not easy to eradicate poverty in a country of having largest number of poor. But somehow steps have to be taken to come up with this problem. The government should take some steps with the public involvement. The upper class and middle class have to realize their civic duty towards poor. I am not talking about the national sharing but atleast some measures should be taken to make flow of money towards the poor one. It’s good that the big businessmen are becoming richer but poor should get some benefit out of this. They should give a better platform to the poor through aiding them by providing with good education, proper housing, safe drinking water, proper sanitation facility and more importantly jobs. The banks should take some measures that will allow short period and small credit without any security to the poor so that they can start their own business. By only such efforts we can develop in true sense and can say our country as Incredible India. In the end I want to say that it’s not the gyrating Sensex that will bring our country prosperity, only the all-over development will bring India into the league of developed countries.