The IMF and the World Trade Organization
The IMF and the WTO are international organizations with nearly 150 members in common. While the IMF's central focus is on the international monetary and financial system, and the WTO's is on the international trading system, both work together to ensure a sound system for global trade and payments.
What objectives do the IMF and the WTO have in common?
The International Monetary Fund (IMF) is an international organization of 188 countries that works to ensure the stability of the international monetary and financial system. The IMF’s mandate includes facilitating the expansion and balanced growth of international trade, promoting exchange stability, and providing the opportunity for the orderly correction of countries’ balance of payments problems. The IMF was established in 1945.
The World Trade Organization (WTO) is an international organization of 153 members that deals with the rules of trade between nations. With Russia’s impendingمحتمل الوقوع accession, the WTO will encompass all major trading economies in the near future. The WTO works to help international trade flow smoothly, predictably, and freely, and provides countries with a constructive and fair outlet for dealing with disputes over trade issues. The WTO came into being in 1995, succeeding the General Agreement on Tariffs and Trade (GATT) that was established in 1947.
The work of the IMF and the WTO is complementary. A sound international financial system is needed to support vibrantفعال international trade, while smoothly flowing trade helps reduce the risk of payments imbalances and financial crisis. The two institutions work together to ensure a strong system of international trade and payments that is open to all countries. Such a system is critical for enabling economic growth, raising living standards, and reducing poverty around the globe.
How the IMF and the WTO work together
The IMF and the WTO work together on many levels, with the aim of ensuring greater coherence in global economic policymaking. A cooperation agreement between the two organizations, covering various aspects of their relationship, was signed shortly after the creation of the WTO.
Regular consultation: The IMF has observer status in certain WTO bodies, and may participate actively in meetings of certain WTO committees and working groups. The WTO Secretariat attends meetings of the IMF Executive Board or the Board Committee on Liaison with the World Bank, and other international organizations on matters of common interest. Trade policy issues may feature prominently in Fund surveillanceنظارت activities and are addressed in the context of IMF-supported programs when needed to meet the program’s objectives. Equally, IMF surveillance reports are important inputs to the WTO’s periodic reports on member countries’ trade policies (Trade Policy Reviews).
The WTO Agreements require that it consult the IMF when it deals with issues concerning monetary reserves, balance of payments, and foreign exchange arrangements. For example, these agreements allow countries to apply trade restrictions in the event of balance of payments difficulties. The WTO’s Balance of Payments Committee bases its assessments of restrictions in considerable part on the IMF’s determination of a member’s balance of payments situation.
Informal consultation between IMF staff and the WTO Secretariat takes place regularly regarding trade policy and global economic developments, as well as on advice for individual countries. Examples of consultations include visits by senior IMF staff to the WTO, and vice versa, to make presentations and attend discussions on issues of common interest (such as recently on the macroeconomics of protectionism, trade in financial services, trade finance, and global macroeconomic and financial developments). An inauguralافتتاحی IMF/World Bank/WTO Joint Trade Workshop was held in December 2011 to further facilitate the exchange of views among academics, civil society, and staff of the three organizations on current trade issues. The IMF and WTO also regularly share data and research.
Technical assistance and training: The IMF, the WTO, and other international organizations and donorsبخشنده often work together to help countries improve their ability to trade. The Integrated Framework for trade-related technical assistance to Least Developed Countries seeks, among other priorities, to ensure that poorer member countries incorporate appropriate trade-related reforms into their Poverty Reduction and Strategy Papers (PRSPs), which form the basis for concessionalامتیاز انحصاری support by the IMF and the World Bank.
Fund assistance for trade liberalization: In an effort to support progress under the WTO’s Doha Round of trade talks, the IMF established the Trade Integration Mechanism (TIM) in April 2004. The TIM is available to all Fund member countries whose balance of payments positions might suffer, albeitاگرچه temporarily, as a result of multilateral trade liberalization. It is not a new lending facility, but rather a policy aimed at making Fund resources more predictably available under existing IMF facilities.
High-level coordination: The Managing Director of the IMF and the Director General of the WTO consult regularly on a range of trade-related issues. The First Deputyنماینده Managing Director attended the December 2005 WTO Ministerial Conference in Hong Kong, China, and the November 2007 WTO General Council Meeting in Geneva. More recently, the Managing Director participated in the Second Global Review of Aid for Trade, hosted by the WTO in July 2009.
Looking forward, it is likely that cooperation and consultation between the IMF and WTO will intensify, given the increased areas of mutual support and overlap between the two institutions. Potential areas of heightened interaction include current and prospective WTO agreements on financial services, trade facilitation, and regionalism. As highlighted in a recent IMF policy paper, the Fund strongly supports the multilateral approach for trade negotiations and calls for flexibility and compromise to guarantee security in trade relationships, forge conclusion of the long-running WTO Doha round negotiations, and broaden attention to new, emerging issues (such as fosteringغذا an open regionalism, food and energy security, and trade-related climate change issues).
First IMF/WB/WTO Joint Trade Workshop
The first IMF/WB/WTO joint trade workshop was held at the head-quarters of WB on December 2, 2011. The goal was to exchange views on policy issues of common interest and discuss on-going research projects. The workshop was open to staff members of the three organizations and selected external participants. All together about 150 people attended the workshop.
The event started with welcoming remarks by the Chief Economist of the WB, Justin Lin. He also introduced the Director-General of WTO, Pascal Lamy, who gave an opening address via video conferencing from Accra, Ghana. Mr. Lamy emphasized the importance of inter-institutional coherence in trade related work, notably in the areas of monitoring, research, statistics, development, and capacity building. He welcomed the initiative of the joint workshop, which will help enhance coherence, and called for it to be held every year. He encouraged the participants to identify concrete steps to develop research co-operation among the three institutions.
Speaking after Mr. Lamy, the President of the WB, Robert Zoellick, highlighted the important role of research in these institutions in connecting theory with practice. He encouraged further research on value added trade, trade facilitation by addressing beyond-the-border barriers, better trade data collection, food and agriculture trade, Doha, and the structural reform agenda. He concurred that the workshop should be an annual event.
The first session was on “Trade policy in an era of high and volatileسبک food prices.” Will Martin (WB) presented his paper, “Agricultural Trade Policies & Food Security,” in which he found that for individual countries, raising export barriers or lowering import barriers to insulate domestic prices from world prices may help avoid increases in poverty. If all countries do this, however, world prices will rise, reducing the effectiveness of insulation and increasing the problems of net food importers—suggesting that careful thought is needed to deal with this collective action problem.
Michele Ruta (WTO) presented his paper, “Food Prices and The Multiplier Effect of Export Policy,” joint with Giordani and Rochi. They found that export restrictions and subsidies in food markets magnify price shocks, creating a “multiplier effect”: high food prices trigger export restrictions that exacerbateبدتر،تشدید کردن the rise of the world price and feed into even more restrictive policies. The empirical analysis confirmed the existence of this multiplier effects for the 2008-10 food crisis.
The second session was on “Value Added Trade.” Nagwa Riad presented her joint paper with Errico, Henn, Saborowski, Saito, and Turunen (all IMF), “Changing Patterns of Global Trade,” which analyzed changes and increased interconnectedness in global trade over the past few decades. The paper highlighted the growing role of vertical integration through global supply chains. It also demonstrated the importance of value added analysis in examining trade inter-linkages and the implications of exchange rate changes for trade flows.
The second paper in this session, “Assessing Domestic Value Added in Chinese Exports,” was presented by Hiau Looi Kee (WB), jointly written with Tang (Tufts). The paper used a ground-up approach to calculate domestic value added of Chinese exports, based on customs transaction data and firm production data. She showed that domestic value added of Chinese exports has risen from 50% in 2000 to 63% in 2006. The increase was driven by firms substituting imported materials with domestic materials, which signaled that China is capturing a larger part of global production chain.
The panel discussion over lunch focused on the trade research portfolioمقام،سهم of the three institutions. Patrick Low, Chief Economist of WTO indicated their research was often demand driven, such as the World Trade Report, dispute resolution, and collaborative activities with other institutions. Looking ahead, key research topics will include: non-tariff measures, value added trade and global supply chains, exchange rates and trade policy, economic analysis for dispute settlement, such as export restrictions, subsidies, and the effects of trade on labor, social protection and wages.
Ranil Salgado, division chief responsible for trade policy at the IMF, pointed to the Fund’s mandate of advising member countries on important global economic changes and on trade policy, particularly in the context of Fund-supported programs. Against this background, recent, ongoing, and planned trade research focuses on new trade patterns and macroeconomic implications; trade and protectionism in the 2008-09 global financial crisis and beyond; the links between trade, growth, and economic volatility; and trade policy and regional integration.
Aaditya Mattoo, Trade Research Manager of WB, laid out three main areas for the Bank’s trade research: (i) the impact of trade and trade policy on the firm, the worker and the household; (ii) rigorousشدید impact evaluations of trade assistance and policy interventions designed to reduce trade costs and promote exports, as well as a better understanding of non-tariff barriers in goods and services; (iii) the most pressing challenges for international cooperation on trade, including: food and energy security, climate change and environmental security, and how to beneficially anchorلنگر rising powers like China in the multilateral trading system.
Doug Irwin (Dartmouth College) gave the keynote address on “Trade Policy and Exchange Rates.” Previous research has found that overvalued exchange rates lead to domestic protectionism, but not international friction because few would object to a country taxing its exports and subsidizing its imports. However, an undervalued currency promotes a country's exports and discourages imports and may lead to friction between countries. He argued that the IMF and the WTO in principle disallow exchange rate manipulation to gain unfair competitive advantage, but enforcement has not yet been tested. Because of this gap in the international architecture, countries may seek unilateral solutions to the problem of misaligned exchange rates.
The last session of the workshop was on “Protectionism.” Christian Henn presented his joint paper with McDonald (both IMF), “Protectionist Responses to the Crisis: Damage Observed in Product-Level Trade.” They found that protectionist action in the wake of the global crisis was not widespread and had a limited impact on trade overall—despite a strong impact on trade in the products affected. Consequently, policy makers need to continue to resist protectionist pressures to safeguard trade’s contribution to global recovery.
Chad Bown (WB) presented his joint paper with Crowley (Chicago Fed), “Import Protection, Business Cycles, and Exchange Rates: Evidence from the Great Recession.” He highlighted that trade policy in the US and elsewhere became less responsive to exchange rate appreciations and, perhaps in support of the November G20 declaration, they “switched” from their historical behavior of implementing new import protection on those trading partners that were contracting and instead imposed such barriers more often toward those trading partners that were experiencing economic growth.
Ingo Borchert presented the last paper of the workshop, jointly written with Gootiiz, Grover and Mattoo (all WB), “Landlocked or Policy Locked? How Services Trade Protection Deepens Economic Isolation.” Focusing on services sectors, the paper finds that trade in services tends to be more restricted in landlocked countries. These policies lead to more concentrated market structures and more limited access to services. Thus, services trade policy reform constitutes an under-appreciated part of aid-for-trade initiatives.
Closing the workshop, the First Deputy Managing Director of IMF, David Lipton, stressed the crucial role of free trade in the global recovery. Despite some rising protectionist pressures recently, he was cautiously optimistic on the global trade agenda. The G20 summit in Cannes signaled openness to fresh, new approaches that include elements of the Doha Development Agenda. Progress towards a pan-Pacific trade deal, especially Japan’s interest in such a deal, and growing attention to trade integration in the Middle-East, following the events of the Arab spring, were also encouraging developments.
نوشته شده توسط ناصر بهرامی در دوشنبه پانزدهم خرداد 1391 و ساعت
Difference Between ICC and ICJ
- -(properly, as expected)
1. ICC and ICJ are both tribunal courts that accommodate (find) criminal investigations and proceedings.
2. ICC and ICJ courts are both located in The Hague, Netherlands.
3. International Court of Justice (ICJ) or the World Court is the primary judicial organ of the UN which settles legal disputes submitted by states while ICC is legally and functionally independent from the United Nations (UN).
4. If the country you belong is part of the UN you can go directly to ICJ and if you are not go to ICC for further proceedings.
5. International Criminal Court (ICC) is called to be a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes and the crime of aggression while ICJ settles legal disputes submitted by states and ICJ also gives advisory and opinions on legal questions forwarded by duly authorized international organs, agencies and the UN General Assembly.
نوشته شده توسط ناصر بهرامی در دوشنبه پانزدهم خرداد 1391 و ساعت
Petition under Article 32 of Constitution
Scope of Article 32 of the Constitution of India
The sole object of the Article 32 of the Constitution of India is the enforcement of the fundamental rights guaranteed under Part III of the Constitution of India. Whatever other remedies may be open to a person aggrieved, he has no right to complain under Article 32 where no fundamental right has been infringed. It follows that no question other than relating to a fundamental right will be determined in a proceeding under the Article 32 including interlocutory reliefs. A writ under the said Article 32 would not lie to enforce the Government policy or a Directive Principle.Article 31 dealt with right to property. The said Article was deleted by the 44th Amendment Act, 1978, whereby the provisions of the said Article 31 were deleted and provisions of Article 300A were incorporated. By reason of deletion of the said Article 31 from the Part III of the Constitution, the right to property cease to exist as a fundamental right and therefore now it is not possible to file a writ in the Supreme Court of India under Article 32 for enforcing and/or challenging the right to property. However, a writ may lie under Article 226 of the Constitution of India to the High Courts.
Application under Articles 32 and 226Article 32 and Article 226 both deal with enforcement of right of the citizen against the Government or Governmental Authorities. However, the scope of Article 32 is limited to the extent of enforcement of the fundamental rights stated in the Part III of the Constitution, whereas the scope of Article 226 of the Constitution is much wider than Article 32 of the Constitution. The High Court while exercising the Article 226 can give reliefs in case of quasi-Judicial Tribunals and authorities or other acts by such lower authorities even though the acts of such authorities do not infringe the fundamental rights.The Supreme Court is competent to give relief under Article 32 against any authority within the territory of India. The power of High Court under Article 226 is confined to its territorial Jurisdiction, so that even where fundamental rights have been infringed, the High Court cannot grant reliefs against an authority located outside its territorial jurisdiction except in certain exceptional cases, namely where the causes of action arises, in whole or in part, within territorial jurisdiction of that Court. Howoever, a writ against Union of India can be filed in any High Court in India.
Amplitude of Supreme Court's jurisdiction under Article 32The powers given to the Supreme Court under Article 32, for the enforcement of fundamental rights, are not confined to issuing prerogative writs only, and are not necessarily circumscribed by the conditions which limit the exercise of the prerogative writs. The said Article is wide enough to consider even claims for compensation arising from the violation of fundamental rights. The range of judicial review recognised in the superior judiciary of India is, perhaps, the widest and the most extensive known to the world of law. The power extends to the examining the validity to even an amendment to the Constitution. No Constitution amendment can be sustained which violates the basic structure of the Constitution.
Who may apply under Article 32Any person who complains of infraction of any of the fundamental rights guaranteed by the Constitution is at liberty to move the Supreme Court, including corporate bodies, except where the language of the provisions or the nature of right compels the inference that they are applicable only to natural persons. Conversely, one cannot apply under Article 32 in respect of a fundamental rights which he does not possess. There are certain fundamental rights which are confined on citizen alone viz., rights under Article 19 of the Constitution. A non citizen cannot, therefore, apply for the enforcement of any such rights. But a non citizen or a company or a statutory authority may apply for enforcement of any of the fundamental rights, which have been confined on all persons under Article 14 of the Constitution.
Applicability of Article 32 to the Public Interest LitigationIn recent times, the Supreme Court has even considered and given reliefs in public interest litigation under Article 32 of the Constitution.
Expansion of Public Interest Litigation
This extraordinary jurisdiction was exercised by the Supreme Court for the enforcement of fundamental rights, in its jurisdiction under Article 32, where two Law Professors addressed a letter to the Supreme Court complaining that the fundamental rights of the inmates of the Protective Home under Article 21 were being violated by the Government Home.
In Gupta's case (AIR 1982 sec. 149) where Upendra's case (1983) 2 sec. 308 was referred to, the doctrine of public interest litigation was formulated by a Bench of 7 Judges in a comprehensive form, to apply to any case of public injury arising from –
the breach of any public duty, or
the violation of some provision of the Constitution, or
of the law.
Though the doctrine was initially applied by the Supreme Court to enforce fundamental rights under Article 32, it soon came to be applied by the High Courts, in their jurisdiction under Article 226, not only to enforce fundamental rights but also to restrain the Executive from undermining the public interest. As the Government is encouraging sports, grant of lease of land for that purpose even at concessional rates cannot be said to be not to subserve the public purpose.
Application under Article 32 against an order of taxation
Though the right not to be taxed except by authority of law is embodied in Article 265, which is not a fundamental right, an application under Article 32 will lie if that tax relates to a person's right to carry on a business or profession and thus constitutes an infringement of his fundamental right guaranteed by rights 14; 15; 19(1)(g).
Where the impugned order is a quasi-judicial order, which violates the fundamental right, application under Article 32 will lie if such order is –
made under an ultra vires statute or rule;
without jurisdiction, though the statute may be intra vires, or
made under a procedure which is ultra vires;
violative of principles of natural justice, which is also regarded as an instance of order without jurisdiction.
But an application under Article 32 will not lie where the order of the taxing or other quasi-judicial authority, which has violated a fundamental right, is ultra vires, though based on a misconstruction of the law or an error of fact.
In The Supreme Court of India, New DelhiCivil Original JurisdictionWrit Petition No. of 1995
In the matter of Article 32 of the Constitution of India.AndIn the matter of Articles 14, 19 (1) (g), 31A, 31C, 300A, 301 and 304 of the Constitution of India.AndIn the matter of Textile Undertakings (Taking Over of Management) Act, 1983AndIn the matter of judgment and order of the Division Bench of the Bombay High Court dated 30th June, 1984 in Writ Petition No. 2401 of 1983AndIn the matter of various orders passed by this Hon’ble Court in Civil Appeal No. 2995 and companion appeals and interim applications thereinAndIn the matter of Textile Undertakings (Nationalisation) Ordinance, 1995 (No. 6 of 1995) dated 27th June, 1995AndIn the matter of constitutional validity of the Textile Undertakings (Nationalisation) Ordinance, 1995.
ToThe Honourable Shri A. S. AnandChief Justice of IndiaAnd Other Honourable Puisne JusticesOf the Supreme Court of India, New Delhi.
The Humble Petition of the Petitioners Abovenamed
Most Respectfully Sheweth :
By this petition under Article 32 of the Constitution of India, the Petitioners seek to challenge the constitutional validity of the Textile Undertakings (Nationalisation) Ordinance, 1995 (No. 6 of 1995) ["the Ordinance" for short] and the consequent actions proposed to be taken pursuant thereof. The Petitioners submit that the said Ordinance is clearly ultra vires the Constitution and violative of Articles 14, 19 (1) (g) and 300A of the Constitution of India. The said Ordinance is clearly a colourable exercise of the legislative power (exercised by the executive) by the Respondents. The said Ordinance is also in teeth of the mandate of Article 300A of the Constitution of India. Besides the Ordinance is apparently aimed at nullifying the various orders passed by this Hon’ble Court which have been completely breached by the Respondents and they are clearly in contempt of those orders as demonstrated hereinafter. Besides the facts and circumstances of the case demonstrate that there was not an iota of urgency or circumstances as envisaged under Article 123 of the Constitution for promulgation of Ordinance. The Ordinance is clearly unconstitutional, null and void and the same is liable to be so declared for which purpose the Petitioners are approaching this Hon’ble Court.
The brief facts and background giving rise to the filing of this petition is narrated hereinafter.
Petitioner No. 1 is a joint stock company existing under and governed by the provisions of the Companies Act I of 1956 and has its registered office at Kamani Chambers, R. Kamani Marg, Ballard Estate, Bombay 400 038. Petitioner No. 2 is the Principal Officer/Director and shareholder of the 1st Petitioner and is national and citizen of India.
Respondent No. 1 is the Union of India. Respondent No. 2 is the Secretary, Ministry of Law and Justice and Company Affairs (Legislative Department). Respondent No. 3 is the National Textiles Corporation Ltd. ("NTC" for short) who were appointed custodian under the provisions of the Textile Undertakings (Taking over of Management) Act, 1983 (" the 1983 Act" for short) to whom now the assets of the textile undertakings, sought to be nationalised under the impugned Ordinance, are to be transferred and then to be vested in the said NTC. Respondent No. 4 is subsidiary corporation of respondent No. 3.
The Petitioner Company has been engaged in the manufacture of textile prior to 1982. The Petitioner Company has been performing its manufacturing activities extremely well upto 1979-80. On 18th January 1982 a general strike was declared in the textile industry at Bombay which strike had disastrous effect on the functioning of all the textile units in Bombay. The strike was continuing on 18th October, 1983.
On 18th October 1983 the Textile Undertakings (Taking over of Management) Ordinance, 1983 was promulgated and the possession of the Petitioners' textile undertaking was taken over at 2.30 a.m. on the morning of 19th October 1983 with the help of police force. The said Ordinance was later on passed into Act of parliamentary. The Ordinance and subsequently the Act proclaimed that it was passed to takeover the management of 13 textile undertakings mentioned in the First Schedule in the public interest; one of them being the Petitioner’s textile undertaking. It was further recited that the circumstances compelled the takeover of the management of those 13 textile undertakings. The Petitioner Company is listed at serial No. 1 of the First Schedule of the 1983 Act, a copy of the said Act of 40 of 1983 is annexed hereto as Annexure-A.
The Petitioners thereupon filed Writ Petition No. 2401 of 1983 in the High Court at Bombay challenging the constitutional validity of the said 1983 Ordinance and subsequently the 1983 Act, and other consequential reliefs. The petitioners crave liberty to rely upon the papers and proceedings of the said writ petition and various affidavits filed therein.
The said writ petition filed by the Petitioners herein was heard by the Division Bench of the Bombay High Court along with other companion writ petitions and the said writ petition by a judgment and order dated 13th June 1984 was allowed and the 1983 Ordinance/Act was declared as unconstitutional inter alia insofar as it pertained to the Petitioners textile undertaking. The Division Bench however granted certificate under Article 32 of the Constitution of India to the Respondents herein to appeal to this Hon’ble Court. A copy of the said judgment dated 13th June 1984 delivered by the Division Bench of the Bombay High Court is annexed as Annexure ‘B’.
The Petitioners state that thereafter Respondent No. 1 as also Respondent No. 3 have filed appeals in this Hon’ble Court being Civil Appeal No. 2995 and other companion appeals. On those appeals various orders have been passed which are summarised as under.
The appeals filed by Union of India and Respondent No. 3 as also various other parties were heard on 11th December 1984, 12th December 1984, 13th December 1984, 18th December 1984, 19th December 1984, 20th December 1984 and 15th January, 1985.
On 17th January 1985 an order was passed by the Bench of three Judges of this Hon’ble Court under which it was directed that the Civil Appeals as also the interim applications therein be heard by a Bench of not less than five Judges. A copy of the said order dated 17th January 1985 is annexed as Annexure ‘C’.
On 22nd January 1985 the three Judges’ Bench of this Hon’ble Court passed the following order as regards the Petitioners’ undertaking is concerned.
(i) NTC was directed to furnish to the Petitioners quarterly statement of profit & loss, balance sheet, monthly statement of stocks, production and employment in respect of their use and management of the Petitioners’ textile undertaking from 1983 onwards.(ii) The Union of India and NTC were restrained from disposing of, parting with possession or encumbering any immovable property, fixed asset, land, plant and machinery of the Petitioners without prior leave of the court.(iii) The Union of India and NTC were restrained from removing any plant, equipment, furniture or fixture from the premises of the Petitioners’ textile undertaking without leave of the court.(iv) The existing telephone connections of the directors of the Petitioner Company were directed not to be disconnected.(v) The NTC was directed to prepare inventory of all assets and other properties, both movable and immovable from 29th January 1985 from day-to-day.(vi) The NTC was directed to hand over the register of contracts, register of directors, register of charges, unissued shares, scrips, minute books of Board Meetings and General Body Meetings.A copy of the order dated 22nd January 1985 is annexed as Annexure ‘D’.
On 23rd January 1985 on order was passed by the Bench of three Judges of this Hon’ble Court in which it was recorded that the possession of the registered office premises of the Petitioner Company will be restored by the Union of India and NTC to the Petitioners and this possession will continue with the company during the pendency of the appeal. The cars of the Petitioner Company takenover by NTC were also directed to be returned to the Petitioner Company. A copy of the order dated 23rd January 1985 is annexed as Annexure ‘E’.
The Petitioners state that each one of the above order and particularly the order dated 22nd January 1985 has not been fully complied with by the Respondents inasmuch as no steps have been taken whatsoever by the Respondents to comply with the same and furnish to the Petitioners necessary particulars and information as directed to be so furnished under the said order dated 22nd January 1985. Thus non-compliance with the order of this Hon’ble Court. The Petitioners have also learnt that the Respondents have disposed of the assets of the Petitioners’ textile undertakings contrary to and in breach of the orders passed by this Hon’ble Court, particularly the above order.
5. The Petitioners believe that in May 1995 the Union Cabinet had approved the revised Turnaround plan for the NTC subject to the following stipulations;
i. The retrenchment of workmen would be undertaken at large scale and voluntary retirement scheme would be offered to reduce the number of workmen strength by 32938.
ii. To modernise 29 textile mills at a cost of Rs. 2005.72 crores.
iii. Re-structuring of 26 mills stated to be unviable into 18 viable mills (as regards the Petitioners’ mills is concerned that it is to be merged with Gold Mohur and Jam Mills or Tata Mills).
iv. Nationalization of 15 takeover mills.
v. The funds for the modernization are to be generated by sale of surplus lands and assets of these NTC mills.
vi. That the functioning of the Turnaround plan should be met exclusively by sales proceeds of surplus lands and assets and no budgetary provision would be made for the same.
In this background, the Petitioners were shocked to learn that on 2nd June 1995 the Bill was introduced in the Lok Sabha being Bill No. 41/95 known as the Textile Undertakings (Nationalisation) Bill, 1995. The statement of objects and reasons for the Bill recited that pending nationalisation, management of the Petitioners’ undertaking and 12 other textile undertakings were takenover in public interest. It was further recited that it was necessary to ensure continued production and distribution of different varieties of cloth and yarn to the public at fair prices and the interests of workmen were also to be protected. The government also proposed to modernise and restructure the undertaking to make them viable and hence it was proposed to nationalise the 15 textile undertakings in public interest. The copy of the said Bill along with the statement of objects and reasons, President’s recommendation under Article 117 of the Constitution of India and the financial memorandum are annexed as Annexure ‘F’.
The Petitioners further state that the aforesaid Bill was introduced in Lok Sabha. This Bill for purported nationalization was introduced after a period of 12 years after the takeover of management. The Petitioners further state that the Bill is referred to the Joint Parliamentary Committee for Commerce for consideration to whom the Petitioners have made subsequently certain representations. The consideration of the Bill was thus deferred pending recommendations/report of the said Committee. The Petitioners submit that Article 31A permits takeover of management for a limited period of time. However, 12 years can never be considered as a limited period of time at end of which the Bill for nationalization was introduced and in this background, whilst the Bill introduced in Lok Sabha was pending before the Joint Parliamentary Committee, an Ordinance was sought to be promulgated on 27th June 1995 as mentioned hereinafter. The Ordinance promulgated under Article 123 of Constitution of India clearly did not precede existence of any emergency or urgency for taking such a step of legislation by executive. Thus the conditions precedent for issuance of Ordinance under Article 123 were and are clearly absent.
In this background, the Petitioners were shocked to learn that on 27th June 1995 the Ordinance has been promulgated known as Textile Undertakings (Nationalisation) Ordinance, 1995 (No. 6 of 1995). It is recited in the said Ordinance as under:
The Ordinance is stated to be to provide for acquisition and transfer of textile undertakings and the right, title and interest of the owners in respect of textile undertakings.
Pending nationalisation, the management of the textile undertakings was takenover.
Large sums of money have been invested with a view to make the textile undertakings viable.
Further investments of very large sums of money were necessary for the purpose of securing optimum utilisation of the available facilities for the manufacture, production and distribution of cloth and yarn.
It was necessary for securing continued employment of the workmen.
It was necessary in the public interest to acquire textile undertakings to ensure the interest of general public.
The copy of the said Ordinance is annexed as Annexure ‘G’.
The Petitioners submit that the salient features of the said Ordinance are as under :
The provisions of the Ordinance are deemed to have come into force on 1st April 1994 which is described as appointed day.
‘Owner’ has been defined in Section 2(g) to mean any person immediately before the appointed day was immediate proprietor or lessee or occupier of the textile undertaking or any part thereof, and the said definition reads thus :"2(G) "owner", when used in relation to a textile undertaking, means any person or firm who or which is, immediately before the appointed day, the immediate proprietor or lessee or occupier of the textile undertaking or any part thereof and in the case of a textile company which is being wound up or the business whereof is being carried on by a liquidator or receiver, includes such liquidator or receiver, and also includes any agent or manager of such owner but does not include any person or body of persons authorised under the Textile Undertakings (Taking over of Management) Act, 1983 or under the Laxmirattan and Atherton West Cotton Mills (Taking over of Management) Act, 1976 to takeover the management of the whole or any part of the textile undertaking";
‘Textile Company’ has been defined in sub-section (1) of Section 2 which reads thus :"2(1) "textile company" means a company (being a company as defined in the Companies Act, 1956) specified in column (3) of the First Schedule as owning the textile undertaking specified in the corresponding entry in column (2) of that Schedule;"
Section 3 provides that on the appointed day, the right, title and interest of the owner in relation to every textile undertakings shall stand transferred to and shall vest absolutely in Central Government. Sub-section (2) provides that every textile undertakings which stands vested in Central Government shall stand transferred and vested in the National Textile Corporation.
Section 4 provides the effects of vesting the assets and properties of the textile undertakings first in the Central Government and then in the NTC and those effects generally are thus :
(a) The assets of textile undertaking are deemed to be inclusive of all movable/immovable properties and lands etc. in India as well as abroad and shall also be deemed to include the liabilities and obligations specified in sub-section (2) of Section 5.(b) The property on vesting shall be freed and discharged from any trust, obligation, encumbrances, mortgage, charge, lien, etc. (c). The licences granted to the owner shall stand transferred to NTC.(c) The licences granted to the owner shall stand transferred to NTC.(d) The mortgagor of the property which vest in Central Government and NTC thereafter is required to give intimation to the Commissioner appointed as Commissioner of Payments under Section 17.(e) On the appointed day any suit, appeal or other proceedings in respect of the property shall not abate and be discontinued, but may be continued or prosecuted or enforced by or against the NTC.
Section 5 provides that the owner shall be liable for liabilities of the textile undertakings except those specified in sub-section (2) in respect of any period prior to the appointed day. The liabilities excluded are the following:
(a) Loans advanced by the Central Government or State Government after the 1983 Ordinance.(b) The amounts advanced to textile undertakings after the management of the undertaking was takenover by the 1983 Act.(c) Wages, salaries and other dues in respect of any period after the management was takenover by the Central Government under the 1983 Act.
Sub-section (3) of Section 5 provides that except the liabilities provided in sub-section (2) in relation to textile undertakings prior to appointed day shall be enforceable against the Central Government or NTC.
Section 8 provides that the owner of the textile undertakings shall be given in cash an amount equal to amount specified in the First Schedule. For the Petitioners’ undertaking the amount specified is Rs. 4,56,98,000/-.
Section 10 provides for management of the textile undertakings by NTC.
Section 11 provides that NTC may for the better management, modernisation, restructuring or revival of textile undertaking with the previous sanction of the Central Government may transfer, mortgage, sale or otherwise dispose of any land, plant, machinery or any other asset of the textile undertaking.
Section 17 provides for appointment of Commissioner for Payments for the purposes specified in the said section.
Section 20 provides for making claims before the Commissioner for Payments against the owner and Section 21 provides for priority of the claims as provided in the Second Schedule to the Ordinance. The priorities are classified as Categories 1, 2, 3, 4, 5 and 6 which are to take precedence over the other one. Categories 1 and 2 are included in the Schedule of the post takeover management period and apparently under Section 21 these liabilities are to get precedence and therefore they would be paid over to the respective claims who would make claim under Section 20 before the Commissioner for Payments, which will virtually wipe out the amount payable to the owner as specified in the First Schedule.
The Petitioners state that the Bill referred to hereinabove is reproduced verbatim by way of the impugned Ordinance was presented in the Lok Sabha on the last day of the budget session. After learning about the same, here was widespread protest against the same from all circles, including trade, industry, labour as also the State Government. The copy of the newspaper reports are annexed as Annexure ‘H’. The Petitioners further submit that the Bill has been referred to the Parliamentary Standing Committee. The Petitioners therefore made a representation on 10th July 1995 to the said Committee requesting them for the hearing. The Petitioners received a communication dated 10th July 1995 fixing the hearing on 12th July 1995 which has been postponed at the request of the Petitioners to 14th July 1995. The copies of the above two letters both dated 10th July 1995 are annexed as Annexures ‘I’ and ‘J’. The Petitioners submit that this seems to be a classic case of the governmental functioning of right hand being unaware of the activities of the left hand.
The Petitioners made representation dated 12th July 1995 to the Parliamentary Committee on Textile. In this representation, Petitioners pointed out the circumstances in which the management of the textile undertakings was takenover. The Petitioner pointed out the judgment of the Bombay High Court in which the said Act of 1983 so far as it pertains to the Petitioners’ undertaking was struck down and the appeal pending in this Honourable Court. The Petitioners also pointed out the complete mismanagement of the Petitioners’ textile undertaking by NTC and pointed out that it was not in anybody’s interest to nationalize the Petitioner’s undertaking as it would be further ruination of the undertaking and neither the production will increase nor the employment will be continued as the proposals being circulated in respect of the Petitioners’ undertaking were not the revival of the unit but the closure thereof and sale of land and merging the unit with some other mill. The Petitioners made a reference to the earlier representation made by them to the Honourable Minister on the subject matter being representation dated 29th August 1985, as also the representation dated 1st September, 1992. A copy of the representation dated 29th August 1985 is annexed as Annexure ‘K’ hereto. A copy of the representation dated 1st September, 1992 is annexed as Annexure ‘L’. A copy of the representation made by the Petitioners to the Parliamentary Committee being representation dated 12th July 1995 is annexed as Annexure ‘M’ hereto. The Petitioners submit that this is yet another factor this Hon’ble Court be pleased to take into account while judging the constitutional validity of the impugned Ordinance.
The Petitioners state that it appears that on 31st July, 1995 in the monsoon session of Parliament, the Hon’ble Minister of State for Textile Mr. G. Venkataswamy introduced the Bill for converting the impugned Ordinance into Act. A discussion took place and various members have pointed out that promulgation of the Ordinance was wholly contrary to the parliamentary practices and it virtually amounted to ridiculing the Parliament. This was stated on the footing that earlier on 2nd June 1995 the Bill was already introduced in the Parliament and thereafter the same was referred to the Standing Committee which was equivalent to the Select Committee on the Bills and in this background on 27th June 1995 the Ordinance was promulgated. The Hon’ble Minister was asked by the Deputy Speaker whether the Ordinance could not wait when the Bill was pending before the Standing Committee. The Hon’ble Minister Mr. Mukul Wasnik made the following statement:"There was an urgency which had necessitated the revival of these textile mills. There was certain recommendation made even by the Special Tripartite Committee which was constituted by the Ministry of Labour. If the Hon’ble member wants I can go through the entire statement and read it out for his information. But these were the reasons that I have explained. For the revival of these textile mills it was felt necessary to issue the Ordinances as soon as possible and therefore the Ordinance had to be issued."The Petitioners crave liberty to refer to and rely upon the proceedings of Lok Sabha as regards the discussion on the introduction of the Bill for convert the impugned Ordinance into a Parliament enactment.
The Petitioners submit that the events which have transpired from 1983 after takeover of the management of the Petitioners’ textile undertaking by the Respondents and handing over it to the NTC, particularly the NTC’s subsidiary National Textile Corporation (South Maharashtra) Limited till the promulgation of proposed Ordinance. These events also throw light and clearly indicate the arbitrariness and unreasonableness of the impugned Ordinance. These events are summarized thus :
The NTC has in operation 105 nationalized textiles and 15 managed mills including the Petitioners’ undertaking which are operated through its 9 subsidiary corporations. The authorised capital of NTC is Rs. 500 crores and paid-up capital is Rs. 457.85 crores.
There are hundreds of unviable sick textile mills allover the country in respect of which neither the Government nor NTC have taken any steps.
As per the figures available relating to the functioning of NTC, the accumulated net losses of NTC as on 31st March 1995 are Rs. 4584 crores which is the provisional estimate. Out of 9 subsidiary corporations of NTC, 8 have lost their net worth and they have been declared as sick industrial companies under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 and the references are pending before the BIFR. The reasons claimed by NTC for such losses are lack of adequate modernization of solid machinery, high mode and machine ratio, excess manpower and shortage of working capital.
The matters have been referred to BIFR including the NTC (South Maharashtra) Limited which is the custodian for the Petitioners’ textile undertaking. The Petitioners have learnt that in the scheme proposed by the Textile Ministry before the BIFR the following points have been discussed and submitted for consideration :
Since Banks and financial institutions are reluctant to pump in any more funds into operations of NTC, the functioning of NTC is neither trustworthy nor economical and NTC having defaulted in repayments has to generate its own funds.
Surplus lands are proposed to be disposed of to utilise interest free funds for modernization, working capital and to make the Units viable.
The mills will be merged with each other and on such merger surplus lands would be made available and modernization proposal will be worked out by raising Rs. 2005 crores.
The questions have been asked in Parliament on the functioning of the NTC and particularly the functioning of the mills in Bombay of which management has been takenover by the Respondents under 1983 Act. The local M.P. within whose jurisdiction the Petitioners’ textile undertaking falls; i.e., Central Bombay M. P. Mr. Mohan Rawale had asked the questions in Lok Sabha and highlighted the mismanagement by NTC and corruption and inefficiency which it had engulfed. The Petitioners crave liberty to refer to and rely upon the proceedings of discussion in Lok Sabha on this subject as when the same are available.
Petitioners state that as mentioned earlier, 9 subsidiary corporations of NTC have become sick under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 and references are pending before BIFR on which various orders have been passed. Petitioners have obtained copies of those orders which are summarized as under :
In respect of NTC (South Maharashtra) Ltd., an order was passed by Bench IV of BIFR on 26th October, 1994 and operating agency has been appointed. The order proceeds on the footing of representations made in Bombay Textile Research Association report. A copy of the order dated 26th October 1994 is annexed as Annexure "N" hereto.
The Petitioners state that similar orders have been passed in respect of the other NTC subsidiaries. On 27th April 1995 order has been passed in respect of the mills in Maharashtra wherein the Bench directed all concerned parties including the State of Maharashtra to submit their proposals on the draft scheme prepared by the operating agency. A copy of the order dated 27th April 1995 is annexed hereto as Annexure ‘O’.
The Petitioners state that although they do not have the copy of the Scheme, from the newspaper reports, it appears that the scheme is to sell the surplus lands of the textile mills including that of the Petitioners’ textile undertaking, merger of some mills with others and on that basis, revival with voluntary retirement scheme, it has been reported in December 1994 that the BIFR has turned down the proposals of sale of the lands of the mills for use for other textile mills. Copy of these newspapers are annexed hereto as Annexure P.
In May 1995, it has been reported that the BIFR, Special Bench at its hearing held on 20th April 1995 has ordered that since Textile Ministry and NTC holding Company did not give its consent for rehabilitation scheme, IDBI, the operating agency has been directed to explore the possibilities of finding a private promoter for revival of sick NTC units. Copy of the newspaper report is annexed hereto as Annexure Q.
The Petitioners further submit that time and again news reports have been appearing on the functioning of NTC which clearly indicate that the NTC has been the white elephant generated by the Union Government and all the units of NTC all run at the cost of the management and workmen of the textile undertaking which have been takenover for management. The basic premise on which the Petitioners’ textile undertaking was takenover viz, mismanagement, though this ground was rejected by the Bombay High Court, is the root cause of the malfunctioning of NTC and it is the NTC who has mismanaged the textile undertakings including the Petitioners’ undertaking. Some of the news reports which have appeared in the past on this subject demonstrate this point beyond doubt are summarized as under :
It was reported in September, 1992 (Financial Express dated 12th September, 1992) that Government itself was planning to return 7 mills (including Petitioners Mill) subject to certain terms and conditions and the proposal was not acceptable to the Millowners. A copy of the paper cutting is annexed as Annexure R.
In the issue of Clotex India, September, 1992, the functioning of NTC has been analyzed wherein the proposals about sales of surplus land, merger of mills etc. have been discussed. Copy of the said article is annexed hereto as Annexure S.
The Minister of State for Textile, Mr. G. Venkataswamy has clearly blamed NTC for malfunctioning of textile mills which has been reported in the press (Times of India dated 7th April 1993 copy whereof is annexed as Annexure T.
The reasons for NTC’s failure including corruption, mis-management have been analyzed in an editorial (Mid Day dated 10th February 1994).
Revival plan by package of sale of lands and purchase of modern machinery has been discussed which was apparently submitted to BIFR (Times of India dated 21st February 1994, Economic Times dated 21st February 1994, Observer dated 21st February 1994, Financial Express dated 21st February 1994, copies whereof are annexed as Annexure U hereto.
In February 1994, a tripartite meeting was held between Labour Ministry, Textile Ministry and NTC where 79 sick NTC mills were suggested to be modernized (Economic Times dated 11th February 1994, Times of India dated 11th February 1994, Mid Day dated 7th February 1994, Financial Express dated 4th February 1994 — copies whereof are annexed hereto as Annexure V).
The Hon’ble Speaker of Lok Sabha requested the Government to come out with a statement of the reasons which are causing NTC’s failure (Times of India dated 10th March 1994).
The President of Rashtriya Mill Mazdoor Sangh had suggested in March 1994 that NTC has failed to take any remedial measures and for revival of Mills, the Mills should be restored to the owners or they should be privatised (Indian Express dated 10th March 1994, being Annexure W hereto).
On 25th July 1995 a news report appeared in Asian Age reporting that NTC was to sell excess land of 15 textile mills which were sought to be takenover under the impugned Ordinance. It was mentioned that since the real estates prices in Bombay were zooming. Mr. Maheshwari, Manager of Industrial Relations at NTC, South Maharashtra State stated that useless lands belonging to each of these mills would be sold to raise funds to upgrade the technology in the mills. The mills of whose properties were sought to be sold inter alia include Elphinstone Mills; i.e., the Petitioners’ textile undertaking. A copy of the said news report is annexed hereto as Annexure X.
On 31st July 1995 a news report appeared in Indian Express reporting that large number of employees of NTC, South Maharashtra had not been paid their wages, back wages, gratuity fund etc. and hundreds of cases were pending in the Labour Courts, Industrial Courts, High Courts and even the Supreme Court.A copy of the said news report is annexed as Annexure Y.
On 31st July 1995 in Times of India news report on the functioning of NTC appeared under the caption "God save us from the bureaucrats". It was reported that the idea of nationalising 15 textile units including the Petitioner was to raise Rs. 2005 crores to be funded by sale of lands. It was pointed out that the capacity utilisation of NTC in spinning units had dropped from 70% to 59% and in weaving units from 68% to 28%. The sale had dropped from Rs. 659 crores to Rs. 314 crores. It was further stated that on one hand privatisation of public sector unit was being undertaken to make them more efficient and on the other hand other units were being nationalised and handedover to one of the most inefficient PSUs namely the NTC. It was further reported that the Minister of State for Textile Mr. G. Venkataswamy had himself stated in 1993 that high level corruption in NTC was responsible for poor status of the mills. A copy of the said report is annexed as Annexure Z.
On 1st August 1995 a news report appeared in Statesman, Calcutta and Hindustan Times, New Delhi in which the proceedings of Lok Sabha, in which the Government was criticised on the Ordinance, were reported. A copy of these two reports are annexed as Annexure AA.
The Petitioners submit that a starred question was asked in Rajya Sabha on functioning of NTC and the losses incurred by the NTC the break up of losses, and steps Government proposes to take or have already taken. This question was answered by the Honourable Minister of Textiles Shri G. Venkataswamy on 25th April 1995 in which it was mentioned that the accumulated losses suffered by NTC for the three years ending 1992, 1993 and 1994 were Rs. 2320, Rs. 3003, and Rs. 3790 crores respectively. It was stated that a revised Turn-around strategy was under consideration and the final scheme would be submitted to BIFR. As regards Petitioners’ textile undertaking is concerned, the accumulated net losses for the years ending 1992, 1993 and 1994 in crores were Rs. 3.63, 5.74 and 11.81 respectively. Some other questions were also answered about the functioning of the NTC. Copies of the questions and answers from the Rajya Sabha proceedings dated 25th April 1995 are annexed as Annexure BB hereto.
The Petitioners believe that in respect of Petitioners’ textile undertaking, the scheme submitted before BIFR envisages the closure of the spinning and weaving unit and merger thereof with some other sick mill and generating funds by sale of surplus land belonging to the Petitioners’ company.
The Petitioners submit that from the aforesaid it is evident that what the Respondents proposed through BIFR scheme as also of the impugned Ordinance is exactly contrary to what they are professing to do under the 1983 Act as also the impugned Ordinance; viz, augmenting manufacturing capacity for yarn and cloth, continuation of the unit and continuation of the work force in employment and preventing reduction in the employment force are all frustrated and in fact not even aimed at as is evident and obvious from the schemes proposed before the BIFR and the entire plan envisaged by the Respondents. The Petitioners submit that this single factor alone is sufficient to establish that the impugned Ordinance is clearly arbitrary, unreasonable and violative of Petitioners’ constitutional rights under Article 14, 19 (1) (g), and 300 of the Constitution of India.
In the circumstances aforesaid, the Petitioners are approaching this Hon’ble Court invoking its extraordinary jurisdiction under Article 32 of the Constitution of India challenging the aforesaid Ordinance; viz., Textile Undertakings (Nationalisation) Ordinance, 1995 (No. 6 of 1995) on the following amongst other grounds. Each of the grounds set out hereinbelow is without prejudice to one another.
The Petitioners submit that the impugned Ordinance is a continuation of the scheme of management undertaken in 1983 by virtue of 1983 Act. The Petitioners submit that 1983 Act and the 1995 Ordinance are thus inextricably linked and they cannot stand apart. The Petitioners submit that the 1995 Ordinance proceeds on the footing of the 1983 Act being ultra vires which in fact has been declared ultra vires by the Bombay High Court in the case of the Petitioners’ textile undertaking. Thus the premises of the impugned Ordinance is clearly wrong and is a subject matter pending before this Hon’ble Court before a Bench of not less than 5 Judges. The Petitioners therefore submit that until the validity of the 1983 Act is finally determined by this Hon’ble Court, the Respondents could not have undertaken the proposed legislation which has been so undertaken by the impugned Ordinance as the impugned Ordinance cannot stand on its own and therefore is liable to be declared as ultra vires. The Petitioner submits that the Ordinance which is subject matter of the Petition covers only 15 textile undertakings of which the management was takenover in 1983. However, there are around 100 mills closed which have not been touched by the present Ordinance. This clearly shows the nexus between the 1983 Act and the present Ordinance.
The Petitioners further submit that the 1983 Act was only for the purpose of preventing mismanagement in the textile undertaking and it was the only reason for taking over the textile undertakings including the Petitioners’ textile undertaking. In fact on a clear finding of fact the Bombay High Court in its judgment dated 13th June 1994 in Writ Petition No. 2401 of 1983 has observed in respect of the Petitioners’ textile undertaking thus :"180. On the admitted position, the financial condition of all the mills during 1981 and 1982 including the Petitioners’ three mills was bad. In fact as compared to the financial condition of certain mills in CAT 2, the position of the Petitioners’ mills was better. In that case from the mere circumstances that the financial condition of the Petitioners’ mill was bad during 1981-82 no inference could be drawn that the same was due to any mismanagement, even if the terms were used in the sense of bad/improper management by the Petitioner Company. The Government therefore could not have, for taking over the management of the said mills, relied on the said CATs for classifying the Petitioners’ mills as mills whose financial condition was bad due to mismanagement.""204. In our view, the above discussion would show that Union of India has failed to establish from any material on record that there was any nexus between the main object or purpose of the Act namely to takeover management of only those mills whose financial condition before strike as wholly unsatisfactory by reason of mismanagement and classification of Petitioner mills as such mills. In fact under the circumstances the Petitioner mills’ inclusion in the class covered by the Act was arbitrary. The impugned Ordinance/Act therefore infringed the Petitioners’ fundamental right under Article 14 of the Constitution and qua them was invalid".Thus it is evident that the Petitioners’ textile undertaking was not mismanaged and therefore in 1983 the management thereof could not have been taken over. The Petitioners submit that from 18th October 1983 till 1st April 1994 (the appointed day under the impugned Ordinance) the position of the Petitioners’ textile mills and the undertaking is with the Respondents only by virtue of the orders of this Hon’ble Court and not by virtue of the 1983 Act which has been declared ultra vires insofar as it pertains to the Petitioners. The basic foundation of the present legislation therefore is clearly unsustainable and the impugned Ordinance therefore on that count is liable to be declared as unconstitutional and ultra vires.
The Petitioners submit that the Government of India is a signatory to the treaty of World Trade Organisation (WTO). The Petitioners submit that in view of changed Economic Liberalisation Policy of the Government which has been accepted allover the world and Indian acceptance of World Trade Organisation Charter, the concept of nationalisation is anti-thesis to the concept of liberalisation. In fact on one hand large number of public sector undertakings are being disinvested so as to put them in the hands of better and efficient measures for their efficient and effective functioning, and on the other hand the textile units like the Petitioners unit is sought to be nationalised and to be handed over by vesting it into the most inefficient and corrupt public sector undertaking in this country, namely NTC and its subsidiaries NTC South Maharashtra Ltd. These concepts are clearly anti-thesis of economic liberalisation and the present policies which have been subscribed by all the policy makers all over the country and accepted and acted upon allover the world. The Petitioners submit that the provisions of the legislations and the Constitution are now required to be interpreted liberally in view of the new economic liberalisation policy as also new industrial policy. Viewed in this perspective, the Petitioners submit that it is clear that the impugned Ordinance is clearly ultra vires and unconstitutional.
The Petitioners submit that the impugned Ordinance is clearly in teeth of the Petitioners’ rights under Articles 14, 19 (1) (g) and 300-A of the Constitution of India inasmuch as the entire scheme of the Ordinance is clearly expropriatory and unreasonable restriction on the Petitioners’ rights under Articles 14 and 19(1)(g) of the Constitution of India. The provisions of the impugned Ordinance make it abundantly clear that it is manifestly unreasonable, arbitrarily and capricious inasmuch as it contemplates the virtual expropriation of the owner of the textile undertaking as demonstrated in this petition. On this count alone the said Ordinance is liable to be declared as unconstitutional and ultra vires.
The Petitioners further submit that by virtue of the Textile Undertakings (Taking over of Management) Act, 1983 the management of the Petitioners’ undertaking was takenover by the Central Government and entrusted to the custodian — Respondent No. 3 herein. The provisions of the said Act proceeded on the footing that there was mismanagement in respect of the Petitioners’ undertaking and therefore it was expedient for the better management of the undertaking and for the interest of the workmen to takeover the management of the textile undertaking. The Petitioners submit that by a judgment and order of the Division Bench of the Bombay High Court dated 13th June 1984, the said Act insofar as it pertains to the Petitioners has been declared ultra vires and unconstitutional. The said judgment is in appeal in this Hon’ble Court and the management continues to be with the Respondents because of the orders granted by this Hon’ble Court on 17th January 1985, 22nd January 1985 and 23rd January 1985. But for these orders, the management and the possession of the textile undertakings would have to be reverted back to the Petitioners. The basic premise of the impugned Ordinance therefore is clearly absent and on this count also the purported object of the impugned Ordinance is clearly absent and the said Ordinance therefore is unreasonable, arbitrary and thus contrary to the mandate of Article 14 of the Constitution of India.
The Petitioners submit that it has been declared in the preamble that the Ordinance has been promulgated for the acquisition and transfer of textile undertaking and the right, title and interest of the owners in respect thereof to the Central Government and then to NTC. The object of such acquisition is proclaimed to be augmenting the production and distribution of different varieties of clothes and yarn so as to subserve the interest of the general public. It is further declared that whilst the management has been takenover, which is according to the Ordinance was pending acquisition, large sums of money have been invested to make the textile undertaking viable and further investments of large sums of money was necessary and it was also necessary for securing the continued employment of the workmen employed in the textile undertaking and it was therefore necessary in the public interest to acquire the said textile undertaking. The Petitioners submit that each of the assertions made in this preamble is completely false and is a bogie created for the acquisition of the Petitioners’ textile undertaking for a pittance. Thus the acquisition of the Petitioners’ textile undertaking is neither in the public interest nor for any public purpose and is virtually expropriation of the Petitioners without making a just compensation for such acquisition. On this count, the Ordinance is liable to be declared as ultra vires and violative of Articles 14, 19 (1) (g) and 300-A of the Constitution of India.
The Petitioners submit that the impugned legislation is not protected either by Article 31-A or by Article 31-C as it is not for any purpose of implementing the directive principles under Article 39 (b) and/or 39 (c) of the Constitution of India. As held by this Hon’ble Court that from this legislation, in the instant case the Ordinance it has to be demonstrated that the Act is in fact made for the purposes of implementing the directive principles contained in clauses (b) and (c) of Article 39 and a mere proclamation or professing to that effect is not sufficient. In the instant case, it is clearly demonstrable from the text of the Ordinance that the same is not for any purpose of implementing the directive principles contained in clauses (b) and 9 (c) of Article 39 and if at all it is anything to the contrary, as such the impugned Ordinance has to satisfy on the touch stone of validity with reference to Articles 14 and 19 (1) (g) which it clearly fails. The said Ordinance therefore is liable to be declared as clearly unconstitutional and violative of Articles 14 and 19 (1) (g) of the Constitution of India.
The Petitioner submits that neither the 1983 Act nor the impugned Ordinance contain a declaration under Article 31C to the effect that the impugned Ordinance is for apparently giving effect to the principles contained in clauses (b) and (c) of Article 39 of the Constitution. The Petitioners submit that there are large number of legislations which the Petitioners have listed separately in a chart showing the nationalisation and acquisition Acts containing such declaration and the decision of challenges to such enactments and the legislations containing no such declaration and the decision of challenges to such enactments. The Petitioners submit that when the Parliament consciously puts a declaration in certain enactments whilst it consciously does not put such declaration in certain enactments, it has to have a significance and the inclusion of a declaration and their being no such declaration has to be clearly viewed in a different perspective. The Petitioners submit that in this background it is submitted that the Respondents cannot contend that the Act is protected by Article 31C unless a declaration to that effect is made in the legislation itself. The Petitioners submit that without prejudice to the aforesaid contention, even assuming without admitting that such a declaration is not necessary and it could be gathered from the legislation itself, the impugned Ordinance gives no such indication, and on the contrary positively it can be established that the impugned Ordinance is not the one for giving effect for the principles given in clause (b) and (c) of Article 39 of the Constitution. The Petitioners submit that on this count also the impugned Ordinance is liable to be declared as unconstitutional under Articles 14 and 19 (1) (g) of the Constitution.
The Petitioners further submit that after the Ordinance No. 10 of 1983 was promulgated on 8th October 1983 and possession of the undertaking was takenover by the Central Government and handed over to Respondent No. 3 as custodian, they have completely mismanaged the said undertaking, the workers’ strength has reduced and the cash losses have increased tremendously. Before the Textile Mills’ general strike Petitioners textile undertakings functioning was absolutely normal. Even during the general strike by Petitioners efforts functioning of textile undertaking was improved and just before takeover it was brought to almost normalcy. The Petitioners submit that the assertions that the Respondents have invested huge sums of money and it is necessary to invest further sums as also it is necessary to augment the work force for production and distribution of different varieties of cloth is completely false and bogus as before the takeover of the management the working of the Petitioners’ textile undertaking was much better than what as it has become after 18th October 1983. Since last about one year the Petitioners textile undertaking is completely closed. For month of June 1995, no salaries have been paid. The workforce and production has reduced considerably. The Petitioners have compiled a comparative data and the figures of the working of the Petitioners’ textile undertaking after 18th October 1983 which is annexed as Annexure ‘CC’ which justifies this point.
The Petitioners further submit that under Section 5 the liabilities of the undertaking except those specified under sub-section (2) are enforceable against the owner of the textile undertaking. Sub-section (2) contemplates liabilities by way of loans advanced to the textile undertaking by the governments, amounts advanced or the wages, salaries and other dues of the employees etc. It is contemplated that the expropriated owner shall be paid an amount equivalent to the one specified in the First Schedule. In respect of the Petitioners’ undertaking the amount specified is Rs. 4,56,98,000/-. However the said amount is not the compensation payable to the petitioners as it is to be adjusted by the Commissioner for Payments as per the scheme of part VI of the said Ordinance which contemplates that the Commissioner shall settle out of the amount payable to the owner of the textile undertaking of 5 categories as specified in the Second Schedule and the priority has been given to Categories 1 to 6 which take precedence over the another. Surprisingly and shockingly the liabilities in categories 1 and 2 are the post takeover management period which are also to be satisfied out of the amount payable to the expropriated owner out of the pittance of compensation payable to him. The Petitioners submit that this is the most shocking and grossest provisions of the Ordinance which makes the whole Ordinance unconstitutional and violative of mandate of Articles 14 and 19 (1) (g) as also 300-A of the Constitution of India.
The Petitioners further submit that the Division Bench of the Bombay High Court has declared in its judgment dated 13th June 1984 that there was no mismanagement of the Petitioners’ undertaking and the 1983 Act of taking over the management of the Petitioners’ undertaking was unconstitutional. The management and possession of the textile undertaking of the Petitioners is continued with the Respondents only by virtue of orders passed by this Hon’ble Court in the pending appeals as mentioned earlier; viz., the orders dated 17th January 1985, 22nd January 1985 and 23rd January 1985. Apart from the above, the Respondents having completely flouted and breached those orders, the possession and management of the textile undertaking continued with the Respondents is only by virtue of the said orders and not by virtue of the 1983 Act which is struck down insofar as it pertains to the Petitioners. In this view of the matter, the Petitioners submit that the impugned Ordinance is a clear frauid of power by Respondent No. 1 in promulgating the said Ordinance for nationalisation of the Petitioners’ textile undertaking. The Petitioners submit that on this count the impugned Ordinance is liable to be struck down and declared unconstitutional.
The Petitioners submit that in any view of the matter the Respondents had purported to takeover the management of the Petitioners’ textile undertaking from 18th October 1983 on the ground of mismanagement of the undertaking. The Petitioners submit that after 18th October 1983 whatever liabilities have been incurred by the Respondents cannot be fastened upon the Petitioners which is sought to be done by the impugned Ordinance. The Petitioners submit that on the other hand the management of the textile undertaking of the Petitioners was taken over with effect from 18th October 1983 which is continued by virtue of the orders of this Hon’ble Court and now what is sought to be done is all post takeover management liabilities of the textile undertaking are sought to be deducted from the compensation payable to the Petitioners for acquisition of the textile undertaking. The Petitioners submit that this is the most unfair and grossest provisions of the impugned Ordinance which makes it completely unsustainable and violative of mandate of Articles 14, 19 (1) (g) and 300-A of the Constitution of India.
The Petitioners submit that the 1983 legislation was a takeover of management legislation and was sought to be justified under Article 31-A (1) (b) which authorises the Legislature to takeover the management for a limited period. The Petitioners submit that assuming without admitting for the sake of arguments the contentions of the Respondent about the mismanagement, such takeover of management is permissible only for a limited duration of time and a period of 13 years from 1983 can, by no stretch of imagination, be considered as a limited period and hence on that count also the 1983 Act must fail. The 1983 Act being the basic foundation of the impugned Ordinance, it must also of necessary fail and on this count the impugned Ordinance is also liable to be declared as unconstitutional.
The Petitioners submit that it is mentioned that the expropriated owner will be paid an amount specified in the First Schedule subject to priority of claims as mentioned in Second Schedule under Sections 21, 22, 23, and 27 of the Act. As far as the Petitioners are concerned, a sum of Rs. 4,56,98,000.00 is stated to be the amount payable. However, no basis whatsoever has been disclosed either in the Ordinance or in accompanying document to the earlier Bill which is reproduced in verbatim by way of the present Ordinance. In fact the Petitioners have learnt that the Respondents themselves have valued the assets of the Petitioners’ textile undertaking to the tune of Rs. 100 crores whereas the amount payable is Rs. 4 crores and odd which is also subject to deductions as per the priorities mentioned in the Second Schedule which priorities first include the post management takeover period liabilities incurred by the Respondents themselves. The Petitioners submit that they have large land area. The available FSI (Floor Based Index; i.e., permissible buildable area) on the basis of 1:33. Considering the present market value at a conservatives estimate of Rs. 4000/- per sq. ft. FSI, the value in monetary terms for the lands of the Petitioners company works out more than Rs. 200 crores. Besides, the value of the Petitioners plant and machinery etc. as of December 1992 is Rs. 453.23 lacs and all these assets are sought to be takenover for a meagre sum of Rs. 4,56,98,000/- which demonstrates its illusoriness. Thus the impugned Ordinance purporting to provide compensation of Rs. 4 crores and odd is clearly and demonstrably expropriatory. The amount of so called compensation is neither just equivalent of market value nor a non-illusory amount and is clearly an illusory amount and on this count also the same is liable to declared so.
The Petitioners submit that the purported amount of compensation of Rs. 4,56,98,000/- payable to the Petitioners’ textile undertaking is a pittance compared to its real value. Besides the said compensation is not payable to the Petitioner, but is liable to be appropriated as per the priority prescribed in Schedule II of the Act. The priority include the post takeover management period liabilities created by the mismanagement of the unit by the Respondents - NTC. The Petitioners submit that the post takeover liabilities, inter alia, include the trade liabilities and creditors etc. of the textile undertaking of the Petitioners run by NTC. The Petitioners have figures available from the Respondents from the accounts for the years 1986-87, 1988-89 and provisional profit and loss account for 1st September, 1994 to 31st December, 1994. The losses for this period alone is Rs. 220.59 lakhs. The losses for the previous years for which the Petitioners have got the figures are to the tune of Rs. 711.59 lakhs and the net losses for the years 1991-92, 1992-93, and 1993-94 as disclosed by the Respondents in Rajya Sabha are Rs. 3.63, Rs. 5.74, and Rs. 11.81 crores. These are supposed to be post takeover liabilities which are to be satisfied from the compensation payable to the Petitioners which is Rs. 4,56,98,000/-. The Petitioners have worked out these figures in a separate statement in tabular form compiled from figures and documents by NTC itself. This chart is Annexure CC hereto. Thus, it is clearly evident that there is no surplus of even one paise available after discharging the post takeover liabilities. In fact the compensation is not sufficient enough for even the post takeover liabilities. Thus, for the mismanagement and negligence of the Respondents, the Petitioners are made to suffer. The Petitioners, therefore, submit that the impugned Ordinance is thus clearly expropriatory and confiscatory in nature and is therefore liable to be declared as unconscionable and violative of Articles 14, 19 (1) (g) of the Constitution of India. For the acts of omission and commission of the Respondents themselves, the liabilities are sought to be fasten upon the Petitioners. This is clearly impermissible.
The Petitioners further submit that as demonstrated earlier the purported Nationalisation is for augmenting the coffers of NTC and to subsidise and underwrite their losses which have been incurred by virtue of sheer mismanagement, corruption, inefficiency and incompetence on the part of NTC. Besides the proposed schemes even do not contemplate continuation of Petitioners’ Textile Undertaking but only to merge with other undertaking and liquidate the assets of the Petitioners’ textile undertaking. Thus the purported acquisition is not in public interest or public purpose but on the contrary not to nationalise the Petitioners textile undertaking and to return it to the Petitioners is for public purpose and in the public interest. The Petitioners therefore submit that the purported acquisition of Petitioners’ textile undertaking under the impugned Ordinance does not satisfy the twin test of acquisition, viz,: public purpose and only on payment of an amount which is non-illusory and just equivalent to market value as compensation. The Petitioners submit that above principles still continue to be the requirements of compulsory acquisition in exercise of power of Eminent Domain despite deletion of Article 19 (1)(f) and 31 by the Constitution (Fourty Fourty ) Amendment Act 1979. The Petitioners submit that on this count, the impugned Ordinance is liable to be declared as unconditional and ultra-vires.
The Petitioners further submit that under Section 9(2) of the impugned Ordinance provision has been made for simple interest at 4 per cent which is clearly unconscionable. The Petitioners submit that the interest rate generally prevailing is in the range of 18 to 21 per cent. In this background, the provision for interest at 4% is clearly illusory and arbitrary.
The Petitioners further submit that under Section 5(3)(c), the Respondents are absolved from criminal liability for the post takeover period. The Petitioners are point out this provision only to demonstrate how arbitrary, unreasonable and unconstitutional the impugned Ordinance is.
The Petitioners further submit that by virtue of 1983 Act, the management was sought to be takenover of the textile undertaking and not the Petitioners’ company as such. In fact, the said 1983 Act had itself distinguished between a textile company and textile undertakings. The Petitioners submit that they have various separate assets and undertakings which are not part of the textile undertaking, viz: i) Leather Clothes Division, ii) Falguni Division engaged in block printing, manually of fancy sarees, Salwars and Kameez which are purchased from open market as Fashion Fabric Division, iii) Head Office, iv) Landdeal with an independent third party, v) retail shop building, vi) cars and vii) land and buildings (Moon Mills premises).
The Petitioners submit that brief particulars of the three of the above separate divisions/assets of the Petitioners’ Company are summarised in statement and are annexed hereto as Annexure DD. The Petitioners submit that without prejudice to the contention that the 1983 Act itself is invalid and ultra vires and the present impugned Ordinance is also ultra vires, in any view of the matter the registered office/administrative office of the Petitioners Company and aforesaid two divisions, viz: Leather Cloth Division and Falguni Division (Fashion Fabric Division) are separate establishments and are not part of the textile undertaking which has been so held by the Division Bench of the Bombay High Court and thus in any view of the matter neither the management of them can be takenover nor the same could be nationalised.
The Petitioners submit that under Section 29 of the Ordinance it has provided that the provisions of the Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law or the judgment, order or decree of any Court. The Petitioners submit that in the event of it being contended that the orders passed by this Hon’ble Court indicated earlier in an appeal from judgment and order of the Bombay High Court from Writ Petition No. 2401 of 1983 stands superseded by virtue of Section 29. It is clearly impermissible and amounts to contempt of this Hon’ble Court. It has been now well established that a legislation overriding the judgment and decree of a court is permissible only if such a new legislation cures the defects as pointed out in the judgment but not otherwise. If such contention is raised, it would mean that the impugned Ordinance purports to declare a judgment in valid without remedying the defects pointed out in the judgment which is wholly impermissible. In fact such a course of action is not possible as factually it has been found that, the premise for enacting the 1983 Act insofar as it pertains to the Petitioners’ unit; i.e., mismanagement positively it can be established that the impugned Ordinance is not the one for giving effect for the principles given in clause (b) and (c) of Article 39 of the Constitution. The Petitioners submit that on this count also the impugned Ordinance is liable to be declared as unconstitutional under Articles 14 and 19 (1) (g) of the Constitution.
The Petitioners therefore submit that the impugned Ordinance is unconstitutional and is not saved as a reasonable restriction under Clause 6 of Article 19 of the Constitution of India. The Petitioners therefore submit that impugned Ordinance is therefore liable to be declared as ultravires, unconstitutional and violative of Articles 14, 19, 31A, 123 and 300A of the Constitution of India.
In the premises aforesaid, the Petitioners most respectfully submit that this Hon’ble Court be pleased to declare that Textile Undertakings (Nationalisation) Ordinance, 1995 (No. 6 of 1995) dated 27th June 1995 is unconstitutional, null and void and ultravires Articles 14, 19 (1) (g), 123 and 300A of the Constitution of India.
The Petitioners further submit that this Hon’ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 32 of the Constitution of India —
restraining the Respondents from acting upon in furtherance or implementation or in pursuance to the Textile Undertakings (Nationalisation) Ordinance, 1995;
for bearing and restraining the Respondents from taking any steps including the disposal of the assets of the Petitioners’ textile undertaking or any other steps whatsoever pursuant thereto;
directing the Respondents to forthwith handover back possession of the textile undertaking of the Petitioners without responsibility of the liabilities of the undertaking created in post management takeover period; i.e., 18th October 1983 till date of such handing over.
The Petitioners further submit that it is absolutely just, essential, necessary and in the interest of justice that pending the hearing and final disposal of this petition, this Hon’ble Court be pleased to stay the operation, implementation and execution of the impugned Textile Undertakings (Nationalisation) Ordinance, 1995 (No. 6 of 1995) in any manner whatsoever.
The Petitioners further submit that if it is contended by the Respondents that by virtue of Section 29 of the Ordinance the interim orders passed by this Hon’ble Court are no more valid and effective, then pending the hearing and final disposal of this petition this Hon’ble Court be pleased —
to restrain the Respondents from disposing of, parting with possession or encumbering any other immovable properties, fixed assets, plant, machinery and fixtures of the Petitioners’ textile undertaking;
to restrain the Respondents from removing any plant, machinery, furniture and fixtures from the premises of the Petitioners’ textile undertaking;
to restrain the Respondents from in any manner interfering with the possession of the office premises of the Petitioner Company at their registered office without any interference or obstruction of any nature whatsoever;
to direct the Respondents to file the monthly statement of profit and loss, stocks production and employment in respect of use by the Respondents of the Petitioners’ textile undertaking as directed under order dated 22nd January 1985 and submit to the Petitioners the inventory of all assets as on 18th October, 1983.
The Petitioners submit that it is also absolutely just, essential, necessary and in the interest of justice that pending the hearing and final disposal of this petition, this Hon’ble Court be pleased to direct that the interim orders passed by this Court on 17th January 1985, 22nd January 1985 and 23rd January 1985 on Civil Appeal No. 2995 of 1984 and other companion appeals and miscellaneous matters therein are operative and binding on the Respondents.
The Petitioners submit that they have demanded justice but the same has been denied to them. The Petitioners in the circumstances have no alternative equally efficacious remedy except approaching this Hon’ble Court.
The Petitioners are challenging the said Ordinance on the ground of violation of their fundamental right under Part III. The present writ petition under Article 32 of the Constitution of India is therefore maintainable. Besides, an appeal arising from the previous 1983 Act which was struck down by the Bombay High Court is also pending before this Hon’ble Court which has been referred to the Constitution Bench for hearing. The Petitioners submit that this Hon’ble Court therefore has jurisdiction to entertain, try and dispose of this petition in exercise of its ordinary civil jurisdiction under Article 32 of the Constitution of India.
The Petitioners have not filed any other petition in relation to the subject matter of the present petition either in this Hon’ble Court or in any High Court in the country.
The Petitioners have paid fixed court fee of Rs. 300/- on this petition.
The Petitioners will rely upon the documents, a list whereof is hereto annexed.The Petitioners Therefore pray :
(a) that this Hon’ble Court be pleased to declare that Textile Undertakings (Nationalisation) Ordinance, 1995 (No. 6 of 1995) dated 27th June 1995 as constitutional, null and void and ultra vires Articles 14, 19 (1) (g) and 300 A of the Constitution of India.
(b) that this Hon’ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 32 of the Constitution of India —
(i) restraining the Respondents from acting upon in furtherance or implementation or in pursuance to the Textile Undertakings (Nationalisation) Ordinance, 1995;
(ii) forbearing and restraining the Respondents from taking any steps including the disposal of the assets of the Petitioners’ textile undertaking or any other steps whatsoever pursuant thereto;
(iii) directing the Respondents to forthwith handover back possession of the textile undertaking of the Petitioners without responsibility of the liabilities of the undertaking created in post management takeover period; i.e., 18th October 1983 till date of such handing over;
that pending the hearing and final disposal of this petition, this Hon’ble Court be pleased to stay the operation, implementation and execution of the impugned Textile Undertakings (Nationalisation) Ordinance, 1995 (No. 6 of 1995) in any manner whatsoever;
pending the hearing and final disposal of this petition this Hon’ble Court be pleased—
to restrain the Respondents from disposing of, parting with possession or encumbering any other immovable properties, fixed assets, plant, machinery and fixtures of the Petitioners’ textile undertaking;
to restrain the Respondents from removing any plant, machinery, furniture and fixtures from the premises of the Petitioners’ textile undertaking;
to restrain the Respondents from in any manner interfering with the possession of the office premises of the Petitioner Company at their registered office without any interference or obstruction of any nature whatsoever;
to direct the Respondents to file the monthly statement of profit and loss, stocks production and employment in respect of use by the Respondents of the Petitioners’ textile undertaking as directed under order dated 22nd January 1985;
that pending the hearing and final disposal of this petition, this Hon’ble Court be pleased to direct that the interim orders passed by this court on 17th January 195, 22nd January 1985 and 23rd January 1985 on Civil Appeal No. 2995 of 1984 and other companion appeals and miscellaneous matters therein are operative and binding on the Respondents;
ad-interim reliefs in terms of prayers (c), (d) and (e);
for costs of this petition;
for such other and further reliefs as the nature and circumstances of the case may require and this Hon’ble Court may deem fit and proper to grant.
نوشته شده توسط ناصر بهرامی در دوشنبه پانزدهم خرداد 1391 و ساعت
Code of Conduct for Law Enforcement Officials
Adopted by General Assembly resolution 34/169 of 17 December 1979
Law enforcement officials shall at all times fulfil the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession.
( a ) The term "law enforcement officials", includes all officers of the law, whether appointed or elected, who exercise police powers, especially the powers of arrest or detention.
( b ) In countries where police powers are exercised by military authorities, whether uniformed or not, or by State security forces, the definition of law enforcement officials shall be regarded as including officers of such services.
( c ) Service to the community is intended to include particularly the rendition of services of assistance to those members of the community who by reason of personal, economic, social or other emergencies are in need of immediate aid.
( d ) This provision is intended to cover not only all violent, predatory and harmful acts, but extends to the full range of prohibitions under penal statutes. It extends to conduct by persons not capable of incurring criminal liability.
In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.
( a ) The human rights in question are identified and protected by national and international law. Among the relevant international instruments are the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Suppression and Punishment of the Crime of Apartheid , the Convention on the Prevention and Punishment of the Crime of Genocide, the Standard Minimum Rules for the Treatment of Prisoners and the Vienna Convention on Consular Relations.
( b ) National commentaries to this provision should indicate regional or national provisions identifying and protecting these rights.
Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.
( a ) This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders, no force going beyond that may be used.
( b ) National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. In no case should this provision be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved.
( c ) The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender. In every instance in which a firearm is discharged, a report should be made promptly to the competent authorities.
Matters of a confidential nature in the possession of law enforcement officials shall be kept confidential, unless the performance of duty or the needs of justice strictly require otherwise.
By the nature of their duties, law enforcement officials obtain information which may relate to private lives or be potentially harmful to the interests, and especially the reputation, of others. Great care should be exercised in safeguarding and using such information, which should be disclosed only in the performance of duty or to serve the needs of justice. Any disclosure of such information for other purposes is wholly improper.
No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.
( a ) This prohibition derives from the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly, according to which:
"[Such an act is] an offence to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights [and other international human rights instruments]."
( b ) The Declaration defines torture as follows:
". . . torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners."
( c ) The term "cruel, inhuman or degrading treatment or punishment" has not been defined by the General Assembly but should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental.
Law enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.
( a ) "Medical attention", which refers to services rendered by any medical personnel, including certified medical practitioners and paramedics, shall be secured when needed or requested.
( b ) While the medical personnel are likely to be attached to the law enforcement operation, law enforcement officials must take into account the judgement of such personnel when they recommend providing the person in custody with appropriate treatment through, or in consultation with, medical personnel from outside the law enforcement operation.
( c ) It is understood that law enforcement officials shall also secure medical attention for victims of violations of law or of accidents occurring in the course of violations of law.
Law enforcement officials shall not commit any act of corruption. They shall also rigorously oppose and combat all such acts.
( a ) Any act of corruption, in the same way as any other abuse of authority, is incompatible with the profession of law enforcement officials. The law must be enforced fully with respect to any law enforcement official who commits an act of corruption, as Governments cannot expect to enforce the law among their citizens if they cannot, or will not, enforce the law against their own agents and within their agencies.
( b ) While the definition of corruption must be subject to national law, it should be understood to encompass the commission or omission of an act in the performance of or in connection with one's duties, in response to gifts, promises or incentives demanded or accepted, or the wrongful receipt of these once the act has been committed or omitted.
( c ) The expression "act of corruption" referred to above should be understood to encompass attempted corruption.
Law enforcement officials shall respect the law and the present Code. They shall also, to the best of their capability, prevent and rigorously oppose any violations of them.
Law enforcement officials who have reason to believe that a violation of the present Code has occurred or is about to occur shall report the matter to their superior authorities and, where necessary, to other appropriate authorities or organs vested with reviewing or remedial power.
( a ) This Code shall be observed whenever it has been incorporated into national legislation or practice. If legislation or practice contains stricter provisions than those of the present Code, those stricter provisions shall be observed.
( b ) The article seeks to preserve the balance between the need for internal discipline of the agency on which public safety is largely dependent, on the one hand, and the need for dealing with violations of basic human rights, on the other. Law enforcement officials shall report violations within the chain of command and take other lawful action outside the chain of command only when no other remedies are available or effective. It is understood that law enforcement officials shall not suffer administrative or other penalties because they have reported that a violation of this Code has occurred or is about to occur.
( c ) The term "appropriate authorities or organs vested with reviewing or remedial power" refers to any authority or organ existing under national law, whether internal to the law enforcement agency or independent thereof, with statutory, customary or other power to review grievances and complaints arising out of violations within the purview of this Code.
( d ) In some countries, the mass media may be regarded as performing complaint review functions similar to those described in subparagraph ( c ) above. Law enforcement officials may, therefore, be justified if, as a last resort and in accordance with the laws and customs of their own countries and with the provisions of article 4 of the present Code, they bring violations to the attention of public opinion through the mass media.
( e ) Law enforcement officials who comply with the provisions of this Code deserve the respect, the full support and the co-operation of the community and of the law enforcement agency in which they serve, as well as the law enforcement profession.
نوشته شده توسط ناصر بهرامی در دوشنبه پانزدهم خرداد 1391 و ساعت
آشنایی با سازمان بینالمللی کار (ILO)
حقوق بشر > ایران - سازمان بینالمللی کار (ILO) در سال 1919 به عنوان بخشی از پیمان ورسای تاسیس شد
سازمان بینالمللی کار از موسسات تخصصی سازمان ملل متحد است. این سازمان در سال 1946 به نخستین آژانس تخصصی سازمان ملل تبدیل شد.
بینش اصلی سازمان بینالمللی کار مبتنی بر تامین کار آبرومند برای مردان و زنان است.
این سازمان تنها آژانس سه جانبه سازمان ملل است که در آن نمایندگان کارفرمایان، دولتها و کارگران ذیمدخل هستند
منشور سازمان بینالمللی کار به بیانیه فیلادلفیا (Declaration of Philadelpia) معروف است در سال ۱۹۴۴ تصویب شد.
مقر این سازمان در شهر ژنو در کشور سوئیس است. این سازمان هر سال در ماه خرداد کنفرانسی برگزار میکند.
آشنایی با یونیسف (UNICEF)
حقوق بشر > ایران - یونیسف (UNICEF) نام اختصاری صندوق کودکان سازمان ملل متحد است
یونیسف در دسامبر 1946 به توصیه شورای اقتصادی و اجتماعی ملل متحد و تصویب مجمع عمومی سازمان ملل متحد ایجاد شد. در اکتبر 1953 مجمع عمومی این سازمان را به عنوان یکی از ارکان دائمی سازمان ملل شناخت. فعالیتهای یونیسف عمدتاً در جهت ارائه کمکهای لازم و حمایت از کودکان کشورهای در حال توسعه است.
هیأت اجرایی: متشکل از نمایندگان 41 دولت عضو که برای مدت سه سال از طرف شورای اقتصادی و اجتماعی انتخاب میشوند.
دبیرخانه: یک مدیر اجرایی به عنوان رئیس دبیرخانه از سوی دبیرکل سازمان ملل و با مشورت هیأت اجرایی انتخاب میشود.
دفاتر منطقهای: این دفاتر به سازمان های مختلف دولت های عضو در اجرای برنامه های مشترک یاری میدهد.
اهداف و ماموریتها
مجمع عمومی سازمان ملل متحد، یونیسف را موظف نموده است تا به دفاع و حمایت از حقوق کودکان بپردازد، به تامین نیازهای اساسی آنان یاری نماید و با افزایش فرصتها، امکان شکوفایی کامل استعدادهایشان را فراهم سازد.
راهنمای یونیسف "پیمان نامه حقوق کودک" است و یونیسف تلاش میکند تا حقوق کودکان را به عنوان اصول اخلاقی پایدار و معیارهای بین المللی رفتار با کودک برقرار سازد.
یونیسف تاکید دارد که بقاء رشد و حمایت کودکان از عناصر ضروری توسعه جهانی و لازمه پیشرفت بشری است.
آشنایی با سازمان ملل (UN)
حقوق بشر > ایران - سازمان ملل متحد (United Nations) سازمانی بینالمللی است که در سال ۱۹۴۵ تأسیس و جایگزین جامعه ملل (League of Nations) شد.
سازمان ملل متحد که توسط ۵۱ کشور تأسیس شد، در سال ۲۰۰۶ میلادی، ۱۹۲ کشور عضو داشتهاست. اعضای آن تقریباً شامل همه کشورهای مستقلی میشود که از نظر بینالمللی به رسمیت شناخته شدهاند. فقط واتیکان، که عضویت در سازمان را نپذیرفتهاست و جمهوری چین (سپس تایوان)، که عضویتش بعد از عضویت جمهوری خلق چین لغو شد، در سازمان ملل متحد عضو نیستند.
مقر سازمان ملل متحد در شهر نیویورک است و کشورهای عضو و موسسات وابسته در طول هر سال با تشکیل جلسات منظم در امور بینالمللی و امور اجرایی مربوط به آنها تصمیمگیری میکنند.
قویترین نهاد سازمان ملل، یعنی شورای امنیت، پنج عضو دائمی دارد که در تصمیمات این شورا حق وتو دارند.
اصطلاح "ملل متحد" را نخستین بار فرانکلین روزولت، رئیسجمهور آمریکا در جریان جنگ جهانی دوم برای اشاره به متفقین بکار برد. اولین کاربرد رسمی این اصطلاح در بیانیه اول ژانویه ۱۹۴۲ملل متحد بود که در آن متفقین از مفاد منشور آتلانتیک پشتیبانی کرده بودند و از متفقین خواسته شده بود که از صلح جداگانه با نیروهای محور خودداری کنند.
اندیشه ایجاد سازمان ملل متحد در کنفرانسهای مسکو، قاهره و تهران در سال ۱۹۴۳ دقیقتر شد. از اوت تا اکتبر ۱۹۴۴ نمایندگان آمریکا، شوروی، انگلیس، فرانسه و جمهوری چین در کنفرانس دامبارتن اوکس در واشینگتن دی.سی، بر روی برنامههای تشکیل سازمان ملل کار کردند. بیشتر بحثهای این کنفرانس در مورد نقش اعضای سازمان و شرایط دعوت از آنها بود.
سپس در آوریل ۱۹۴۵ در کنفرانس سان فرانسیسکو تکلیف حق وتو برای پنج عضو شورای امنیت تعیین شد. در نهایت در ۲۴ اکتبر ۱۹۴۵ منشور ملل متحد به امضای ۵۰ کشور رسید و سازمان ملل متحد رسما تشکیل شد (لهستان در کنفرانس نبود ولی جایی برای آن در نظر گرفته شد و بعدا منشور را امضا کرد.)
ارکان سازمان ملل:
- مجمع عمومی
- شورای امنیت
- شورای اقتصادی و اجتماعی
- شورای قیمومت (از اول نوامبر ۱۹۹۴ فعالیت نمیکند)
- دیوان بینالمللی دادگستری
علاوه بر شش رکن اصلی، سازمان ملل متحد نهادها و برنامههای دیگری را نیز زیر پوشش دارد. از شناخته شدهترین این نهادها یونسکو، یونیسف و کمیساریای عالی سازمان ملل برای پناهندگان است.
ساختمان مقر سازمان ملل در نیویورک به هزینه جان دی. راکفلر کوچک، به مبلغ 5/8میلیون دلار ساخته شد. طرح این ساختمان از معمار برزیلی اسکار نیمهیر است
نوشته شده توسط ناصر بهرامی در دوشنبه پانزدهم خرداد 1391 و ساعت