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Tyler Miller Communications Mrs. Seiler January 15, 2013 Harry Potter and the Sorcerer's Stone One dark night at Number 4, Privet Drive Albus Dumbledore, the head of a Hogwarts School of Witchcraft and Wizardry, meets Professor McGonagall, a teacher at Hogwarts, and Hagrid, the grounds keeper of Hogwarts, outside the Dursley home. Dumbledore tells McGonagall that Lord Voldemort, a dark wizard who was doing his best to plunge the world into darkness, has killed Mr. and Mrs. Potter and tried unsuccessfully to kill their baby son, Harry. Dumbledore leaves Harry with the only family he has the Dursleys, much to the dismay of Professor McGonagall and Hagrid, with an explanatory note in a basket in front of the Dursley home. Ten years later, the Dursley household is dominated by Dudley, the Dursleys’ son, who torments and bullies Harry. Mysterious letters begin arriving for Harry, from Professor Dumbledore. The letters begin to worry Mr. Dursley, who vainly tries to keep them from his nephew, but the letters keep arriving through literally every crack in the house. Finally, in a last ditch effort to keep the letters from reaching Harry, Mr. Dursley moves his family to a dark dismal shack in the middle of nowhere near the coast. On the eve of Harry’s eleventh birthday, Harry makes a wish and Hagrid bursts through the shack’s door and ,after giving Dudley a pig’s tail, whisks the eleven year old Harry away from his sadistic relatives. The next day, Hagrid takes Harry to London to shop for school supplies. First they go to the wizard bank, Gringotts. Followed by a shopping spree on Diagon Alley, where Harry buys his books, ingredients for potions, and, finally, a magic wand. A month later, Harry goes to the train station and catches hi... ...rised and makes him state what he sees. Harry, oddly enough, sees himself with the stone in his pocket, and at that same moment he actually feels it in his pocket. Harry tells Quirrell that he sees something else. Voldemort tells Quirrell that the boy is lying and requests to speak to Harry face to face. Voldemort ultimately, instructs Quirrell to kill Harry, but Quirrell is burned by contact with the boy. and his body begins to break down into dust. A struggle ensues and Harry passes out. When Harry awakens, he finds himself in the school’s hospital wing with Dumbledore. Dumbledore explains that he saved Harry from Quirrell just in time. He adds that he and Flamel have destroyed the stone, because they fear the stones powers are too great to exist any longer. The school year comes to an end, and Harry sadly must returns to the Dursley’s home till next year begins.

Distributive Justice and Its Relevance Under Indian Constitution

PAPER ON THE TOPIC THE PHILOSOPHY OF DISTRUBUTIVE JUSTICE AND ITS RELEVANCE UNDER INDIAN CONSTITUTION The jurisprudence of distributive justice, according to juristic cynics, is an essay in illusion. The basic social system is built on gross inequalities and the power to lobby and mould State policy, even judicial policy, is heavily in the hands of the proprietariat. Being social realists and meliorists we have to work with the materials that we have and try to read the constitutional provisions in such a manner that the human essence of distributive justice is won by dynamic interpretation and socialist understanding.The Indian Constitution visualizes an affirmative State action for bringing about a new social order based on justice, social, economic and political (Art. 38). The Directive Principles of State Policy contain the directions of change towards such a new social order. The researcher has examined various theories of justice and has examine how the John Rawl’s theory of justice which means that justice is fairness is the most apt for the Indian situation. Even in th e Constitution we find different strategies of justice. Keywords: Justice, Distributive Justice, Constitution.INTRODUCTIONEver since the birth of society, justice has been one of the most important quests of human endeavor. Justice means giving one what is due to him. As a principle of law, justice delimits and harmonises the conflicting desires, claims and interests in the social life of the people. In the modern society if we take the view that all its problem of distribution then the recourse is left open to distributive justice and nothing else. Distributive justice embraces the whole economic dimension of social justice, the entire question of distribution of goods and services within the society.It demands equality in the distribution or allotment of advantages or burdens. The aim of distributive justice is to strike a balance in the socio-economic structure of the society and bring equipoise between the conflicting interests of individual citizens. It is submitted that the pr oblem of distributive justice in one sense is more a matter of procedural fairness to individuals than of substantive rightness or wrongness of the rules themselves. More specifically, it would seem that even bad rules can be applied justly and good rules in an unjust way, but it does not mean that it is not the concern of the substantive law.Much will depend upon the structure of the society. To establish distributive justice we must create a public system of rules by reference to which the conflicting claims which inevitably arise can be authoritatively determined. Distributive justice essentially is the function of a just society. The problems of Indian society are so complex, perplex and varied that a single formula for distributive justice cannot be found. The Constitution of India talks of justice in the Preamble as well as in Article 38 of the Constitution which is a directive principle of state policy.The Constitution talks not of justice but of social, economic and politica l justice. It does not merely envisage a system of corrective justice in which rights and obligations arising out of the present social structure are enforced. It clearly saw that the existing structure was unjust and needed to be changed. This is what we call distributive justice.PHILOSOPHY OF JUSTICE AND DISTRIBUTIVE JUSTICEEver since men have begun to reflect upon their relations with each other and upon the vicissitudes of human lot, they have been preoccupied with the meaning of justice.Justice shares with natural law an institutional immortality which presents a constant paradox: it is so ancient that everything has been said about it, and so modern that it constitutes a continuous and inescapable problem in the ever-changing context of a contemporary society. Justice, as Aristotle said, â€Å"is the bond of men in society. † and â€Å"States without justice† are as St. Augustine said, â€Å"robber-bands. † Fiat justitia ruat coelum let heavens fall, justi ce had to be done became the abstraction of many religious, political, moral and legal philosophers of all ages.The power of justice is so great that it strengthens and excites a person fighting for just cause. All wars have been fought by all parties in the name of justice, and same is true of the political conflict between social classes. On the other hand, the very fact of this almost ubiquitous applicability of the principle of justice prompts the suspicion that something may be wrong with an idea that can be invoked for any cause. Social groupings of today are dynamic, not static, and they do not find the ideal equipoise in a condition of mere imperturbability.Justice is considered to be the primary goal of a welfare state whose very existence in turn rests on the parameters of justice. The greatest contrast, however, between ancient and modern thinking about the social harmony of justice is in the changed conception of individual personality in relation of law. I. The problem of Justice The importance of the subject of justice and the frequency of its use would naturally lead one to believe that there is an accepted definition of justice or, if not, at least a workable definition of justice is capable of being carved out.But defining justice is not as easy as it appears to be. There are difficulties inherent in the concept of justice and it is because of this reason that it is wholly indeterminate and belies all attempts to define it. Hens Kelsen perturbedly remarked: No other question has been discussed so passionately; no other question has caused so much precious blood and so many bitter tears to be shed; no other question has been the object of so much intensive thinking by the most illustrious thinkers from Plato to Kant; and yet, this question is today as unanswered as it ever was.It seems that it is one of those questions to which the resigned wisdom applies that man cannot find a definitive answer, but can only try to improve the question. What i s ‘just’ is again a question which largely remains unanswered and mostly hinges on the hunch of the bench as it nowhere informs us how to recognise or distinguish a just man from the other. The term justice has two aspects, namely, abstract justice and concrete justice. In the abstract sense ‘justice’ means a course of conduct both legel and moral, which tends to augment human ‘welfare’.Those human actions which do not intersect mankind have no significance either for ethics or for jurisprudence. The answer to the question as to what actions affect human welfare varies from age to age or generation t generation depending on divergent conceptions of human welfare prevailing in a given society during a given period of time. It is through the abstract notion of justice that its true significance in its practical application can be ascertained and appreciated. In the concrete sense, justice plays a positive role in regulating the procedural safegua rds afforded to litigants in the courts of law. II.Meaning of Justice and Distributive Justice Grotius and Leibniz believed in the concept of society as the co-operation of beings endowed with reason defined justice as custodia societatis Justum est quod societatum ratione utentium perfecit. This means justice puts an end to the conflict between the individual and the universal, the microcosm and the macrocosm, and brings about the synthesis between the whole and the parts. Justice thus seems to entail the conflict of competing claims and not infrequently the clash of powerful social interests with the right of individuals ensnared from time to time in the mechanism of raison d’ Etat.That is why justice is by its very essence a justitia communis, which reconciles in itself and transcends the commutative, distributive, and universal principles. To Plato, justice is a virtue of that psyche or soul which is the quint-essential personality of human creature. In the Republic the q uest is for justice as the complete expression of the soul’s excellences and, therefore, of the whole moral man. Plato tells us that the four supreme moral qualities both in state and the individual are wisdom, courage, temperance or moderation and justice; and the greatest of these, the indispensable, is justice.Aristotle said that justice implies a certain degree of equality; this equality might, however, be either arithmetical or geometrical, the first based on identity and the second on proportionality and equivalence. Arithmetical equality leads to commutative justice, geometrical equality to distributive justice. The second is the business of the legislator, while the first is the business of the judge. Political rights and goods should be apportioned according to distributive justice, punishments should be imposed and damages paid according to commutative justice.The theory of justice thus involves an examination of the body of rights and duties accepted in a society i n the light of the formal principles of equality, the aim being to rid it of arbitrary elements; that is discrimination not grounded on relevant differences. According to John Stuart Mill, a society which is governed by the legal philosophy of distributive justice is one which: Should treat all equally well who have deserved equally well of it, that is, who have deserved equally well absolutely.This is the highest abstract standard of social and distributive justice; towards which all institutions and the efforts of all virtuous citizens should be made in the utmost degree to converge. It is thus universally considered just that each person should obtain that (whether good or evil) which he deserves; and unjust that he should obtain a good, or be made to undergo an evil, which he does not deserve. This is perhaps the clearest and most emphatic form in which the idea of justice is conceived by the general mind. As it involves the idea of desert the question arises of what constitutes desert.The characteristic of distributive justice is the expansion of the spirit of collectivism, the promotion of the feeling of co-operation and the exercise by society of its collective powers in support of the legitimate claims of individual life. Its formula is â€Å"to every man according to his needs† rather than â€Å"to every man according to his deserts. † The distributive justice considers how it can secure too each individual a standard of living and such a share in the values of civilization as shall make possible a full existence of human life.In all these ways, the notion of justice according to law is gradually pervaded by the notion of justice and the distributive justice in the law. III. Concept of Distributive Justice Modern social and economic developments have made it clear that individual justice, justice between the wrongdoer and the victim is only a partial and incomplete form of justice and it is in the notion of distributive justice, i. e. , rendering to each man his due, the essence of justice lies.The development of the welfare state is generally thought of as an application of the notion of distributive justice. Moreover, the cry for equality of opportunity for the underprivileged and weaker sections of the society is being increasingly heard these days and this demonstrates the importance of the notion of distributive justice in modern consciousness. Distributive justice embraces â€Å"the whole economic dimension of social justice, the entire question of proper distribution of goods and services within the society†.It demands equality in the distribution or allotment of advantages or burdens. The advantages or burdens which are to be distributed are of numerous kinds such as wages, taxes, property, punishments, individual or social performances or rights and duties as allocated and apportioned by the legal system. Distributive justice aims to strike a balance in the socio- economic structure of the society t o bring equipoise between the conflicting desires, interests and claims of the individual citizens. Justice P. N.Bhagwati succinctly explains distributive justice as: And when I talk of justice, I mean not commutative justice but distributive justice, justice in depth, justice which penetrates and destroys inequalities of race, sex, and wealth, justice which is not confined to a fortunate few, but takes within its sweep the entire people of the country, justice which ensures equitable distribution of the social, material and political resources of the community. This is the kind of justice which we in India are trying to realize through the process of law and our substantive law is being geared to this task.Distributive justice includes the quality of being just and fair to all the individuals in the society or group. It seeks to give everyone what is due to him. What is due cannot be ascertained by absolute standards because the standards change with changes in the socio-economic c onditions of the society. It does not mean only a just distribution of the material goods of life, but also means and includes the reasonable requirements of human body, mind and spirit. It takes in both the means and the end, the process as well as the product.It seeks to meet out justice through just means, unjust means may satisfy some, but cause injustice to others. Distributive justice means justice to all and not to a few or a favored class. It does not introduce class conflicts, but seeks to improve and harmonise the society with a view to avoid the socio- economic imbalances. The readjustment of social claims may involve a transfer of resources from one section of the society to another, but the transfer is only an equitable reallocation of the resources and not a destruction of the structure itself.Distributive justice demands preferential treatment of the weaker sections of the society, but that is only to correct the imbalances existing in the society and not to cause unn ecessary harassment or injustice to the advanced sections thereof. Thus, it seeks to remove the imbalances in the social, economic and political life of the people. There cannot be distributive justice unless the society progresses in all the directions. In short distributive justice helps to bring about a just society.The right to distributive justice may be defined as the right of the weak, aged, destitute, poor, women, children, and other underprivileged and downtrodden segments of the society to the protection of the state against the ruthless competition of life. It seeks to give adventitious aids to the underprivileged, so that they may have an equal opportunity to compete boldly with the more advanced sections of the society. It is a bundle of rights; in one sense it is carved out of other rights; in another sense, it is a preserver of other rights.It is the balancing wheel between the haves and have- nots. Its aim is not to pull down the advanced sections of the society, but only to uplift the backwards and the underprivileged sections thereof without unduly and unreasonably effecting and undermining the interests of the former. It only prevents unjust enrichment at the expense of the underprivileged and ensures a balanced and harmonious development of the society. It is this approach and understanding of the concept of distributive justice which permeates the Indian Constitution and is adopted here for the purposes of this work.This takes us to the study of principles of distributive justice which serve as the criteria for evaluating the propriety or justice of distribution. IV. Theories of justice The theories which take in their sweep the above mentioned principles of distributive justice are: – Utilitarian, and – Contractarian. The former represents an established tradition of ethical thought, though subject to continuing refinements and restatements. The later owes much to John Rawls, who, in recent times has most illuminatingly used the idea of primordial social contract to arrive at the basic principles of justice.It is often reiterated that the theories of justice must take into consideration at least three important facets of distributive process: a) The ‘total amount of goods (or utility) to the distributed’; b) The ‘pattern of distribution arrived at’; and c) The distributional procedure described aptly as the ‘principle of selection by means of which the distribution is arrived at’. An attempt is made here to examine the different facets of these theories and to ascertain the extent to which they satisfy the demands of distributive justice.Utilitarian Theory of Justice Utilitarianism is essentially an aggressive theory. Its premise is the greatest good of the greatest number. Justice in its essence is distributive in character. The three principles of justice enumerated above demand that a person’s share of good should be proportional to some quality he posse sses. It is, therefore, unlikely that utilitarian theory will be able to accommodate principles whose form contrasts directly with that of the greatest happiness principle.It is submitted that why someone committed to aggregating good should care how that good is distributed among different people. The main weakness of the utilitarian theory from the perspectives of distributive justice is that it accords a paramount role to the quantity of good or welfare distribution. This has been pointed out by Brandit in the following words: â€Å"If quantity of welfare can be raised by a grossly unequal distribution- for instance, as in an efficient system of slavery- then we have to favour inequality.Equality, on utilitarian scheme, is a servant of quantity of welfare. † John Rawls takes this insight as his starting point in developing a contractual theory of justice which is intended to remedy the deficiencies of utilitarianism. It may thus seem that the utilitarian theory does not br ing home the expectations of society because our needs and desires differ qualitatively and are mutually incommensurable.Man harbours the most varied needs, for example the need for food, rest and sleep, occupation, sexual activity, culture and knowledge, artistic experience and recreation, love and respect, power and social esteem, etc. If all the needs of an individual cannot be satisfied, and if he is faced with a choice, for example, between listening to symphony and eating a good dinner, this choice cannot be described as a rational alternative between two measurable quantities of pleasure. Contractarian Theory of JusticeAccording to John Rawls: â€Å"Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override†. Rawls understands society as a co-operative venture for mutual advantage. In a co-operative society, there is a social union and a shared end, conceived not as a substantive goal, but as a plan of conduct which will assure that the endowments of each will be complementary to the good of all. The actual differences between individuals in terms of natural abilities, social advantages, wealth, etc. are viewed as a cause of social discord; the differences tempt men to pursue their own advantage, what all have in common is a moral personality and this must be the basis of justice. The utilitarian theory fails to accommodate this very conception of justice. To replace it, Rawls has offered the following principles of justice: All social primary goods- liberty and opportunity, income and wealth, and the bases of self- respect are to be distributed equally unless an unequal distribution of any, or all, of these goods is to the advantage of the least favoured.V. The Constitutional Scheme of Distributive Justice Indian Constitution opens with the preamble which states in unequivocal terms that the people of India have solemnly resolved to secure to all its citizens: Justice – social, ec onomic and political, equality of status and of opportunity and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the nation.The Objectives Resolution from which this phrase has been carved out states: This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution: a) Wherein shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and b) Wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes. Referring to socio- economic justice, Dr. S.Radhakrishnan said that it intended to effect a smooth and rapid transition from a state of serfdom to one of freedom. Then emphasizing the need for such a change, he said, â€Å"it is therefore necessary that we must remake the material conditions†. The phrases thus used by the Founding Fathers clearly indicate that socio-economic justice in its realization is distributive in character. It contemplates a change in social structure in order to effect a transition from serfdom to freedom and attempts to remake the material conditions of the society. Granville Austin has also observed: â€Å"The Constitution was to foster the achievement of many goals. Transcendent among them was that of social revolution. Through this revolution would be fulfilled the basic eeds of the common man, and, it was hoped, this revolution would bring about fundamental changes in the structure of the Indian society†. Thus, the scheme of distributive justice as visualized in the Objectives resolution was incorporated in the preamble, the fundamental rights and the directive princip les of state policy and other provisions of the Constitution. You can read also  Justice System Position PaperThe gist of the scheme may be stated thus: Constitution ordains the state to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice- social, economic and political shall inform all the institutions of national life. For the establishment of social order, the people of India have been given the following fundamental rights: a) Right to equality; ) Right to six freedoms- freedom of speech and expression; to assemble peaceably and without arms; to form associations or unions; to move freely throughout the territory of India; to reside and settle in any part of the territory of India; to practice any profession or to carry on any occupation, trade or business; c) Right to life and personal liberty; d) Right against exploitation; e) Right to freedom of religion; f) Cultural and educational rights; g) Right to constitutional remedies. In addition to these, the directive principl es of state policy also express in categorical terms the ideals of distributive justice. Article 38 requires the state inter-alia, to minimize the inequalities in income and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals, but also amongst groups of people residing in different areas or engaged in different vocations.Article 39 requires the state to make available to all the citizens adequate means of livelihood; to distribute ownership and control of material resources so as to sub serve the common good; to operate the economic system in such a way that it does not result in concentration of wealth and means of production to the common detriment; that there is equal pay for equal work; to protect the health and strength of workers men and women and the tender age of children against abuse and that citizens are not forced by economic necessity to enter avocations unsuited to their age and strength, that children are given oppo rtunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.The state is also required to provide equal justice through the mechanism of free legal aid in order to ensure that opportunities for securing justice are not denied to any citizens by reason of economic or other disabilities; to provide right to work, to education and public assistance in cases of unemployment, old age, sickness and disablement and other cases of undeserved want; to make provision for securing just and humane conditions of work and for maternity relief, to provide work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities; to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in industry; to secure for all the citizen s a uniform civil code throughout the country, to provide free and compulsory education for children below the age of 14 years; to promote the educational and economic interests of the Scheduled castes and Scheduled Tribes and other weaker sections; to raise the level of nutrition and standard of living and to improve the public health. Thus, it can be said that the Constitution of India has twin objectives: First, to usher in a new social order ensuring distributive justice to all the citizens and; second, to protect the liberties of the people from the onslaughts of autocratic and arbitrary power. These two ideas run like a golden fabric through the entire scheme of the Constitution.Indeed, the substantive and the procedural provisions of the Constitution harmonizing the said two concepts give a new philosophy and sustenance to our socialist, democratic republic based on rule of law. But to our dismay, many of the legislative actions destined at distributive justice pursuance to t he implementation of the directive principles of state policy were struck down by the courts from time to time. The directives have been relegated to the position of inferiority. The bewildering judgments of the Supreme Court right from the days of Champakam Dorairajan,Quaresh, Kerela Education Bill, including the Golaknath, the Bank Nationalisation, the Privy Purse and the Minerva Mills have shattered all the hopes of the Government to implement the directive principles of state policy.These ecisions crippled the state machinery and paralysed the movement of the nation towards an equalitarian social order. These decisions represent a saga of judicial misunderstanding of the avowed ideals of the Constitution. This approach is inherently inconsistent with the spirit of the Constitution ignoring the realities of the Indian societal structure. The poverty of the Indian masses cannot be mitigated by eulogizing the fundamental liberties and mellowing down the positive efforts of state de stined at distributive justice. The Constitutional goals of distributive justice can be achieved only if the courts adopt a pragmatic and sociological approach without making such ado about the rights in interpreting socio-economic legislations.It is submitted that both fundamental rights and directive principles of state policy aim at establishing a just social order based on the philosophy of distributive justice ensuring dignity to the individual not only to the few privileged persons, but to the entire masses of the country including the have nots and the handicapped, the lowliest and the lost. Both these represent a broad spectrum of human rights. The concept of distributive justice as embodied in the Constitution is a living concept of revolutionary import. It gives sustenance to the rule of law and meaning and significance to the ideals of a welfare state. The freedoms guaranteed under the Constitution are not an end in itself, but the means to achieve distributive justice.Ou r Constitution is the unique document for the upliftment of the down-trodden and weaker sections of the society. The greatest need of the hour, therefore, in our society in social integration of the weaker and oppressed sections of the people with the rest of the society. This demonstrates that our Constitution does not leave the individual at the mercy of the law of nature representative of competitive modal of society. It assigns a prominent role to and imposes heavy responsibilities upon the state to assure a dignified life to each individual irrespective of what he deserves on meritarian consideration. Yet, in a way it incorporates the need-based principle of justice.It means securing to each and every human being the basic necessities of life like food, clothing, housing, medicine, education and the like etc. This is the voice of distributive justice and the very Dharma of the Indian Constitution. ——————————à ¢â‚¬â€Ã¢â‚¬â€Ã¢â‚¬â€Ã¢â‚¬â€Ã¢â‚¬â€œ [ 1 ]. Sudesh Kumar Sharma, Distributive justice under Indian Constitution, Deep & Deep Publications, New Delhi, 1989 [ 2 ]. http://www. spotlaw. in/text/910011996/9100119961206001. htm (accessed on 9 march 2013) [ 3 ]. http://www. spotlaw. in/text/910011996/9100119961206001. htm (accessed on 9 march 2013) [ 4 ]. Sudesh Kumar Sharma, Distributive justice under Indian Constitution, Deep & Deep Publications, New Delhi, 1989 [ 5 ]. VII Encyclopaedia of Social Sciences, 512 (1953) [ 6 ].Quoted by Justice George Vadakkel in his paper entitled â€Å"Law, lawyers and political development†, Vol. VIII (4), Journal of Bar Council of India, 629 at 635 (1981). [ 7 ]. Address by Justice P. N Bhagwati at the opening session of the Sixth Commonwealth Law Conference on 18th August, 1980 in The challenge of social justice, 20-21 (1985). [ 8 ]. John Rawls, A Theory of Justice (1976 Reprint) [ 9 ]. R. B. Brandit, Ethical Theory, 415 (1959) [ 10 ]. John R awls, â€Å"Distributive Jusitce† in P. Laslett and W. G. Runciman (ed. ), Philosophy, Politics and Society, 3rd ser. 50 (1967) [ 11 ]. I C A. D 59 [ 12 ]. II C A. D. 269 [ 13 ]. II C A. D. 273 [ 14 ].Granville Austin, The Indian Constitution: Cornerstone of a Nation, introduction (1979 Reprint) [ 15 ]. Art. 38(1) [ 16 ]. Art. 14 to 18 [ 17 ]. Art. 19(1)(a), (b), (c), (d), (e), (g). [ 18 ]. Art. 20 to 22 [ 19 ]. Art. 23 and 24 [ 20 ]. Art. 25 to 28 [ 21 ]. Art. 29 to 30 [ 22 ]. Art. 32 [ 23 ]. Art. 38(2) [ 24 ]. Art. 39(a), (b), (c), (d), (e) and (f). [ 25 ]. Art. 39-A [ 26 ]. Art. 42 [ 27 ]. Art. 43 [ 28 ]. Art. 43 A [ 29 ]. Art. 44 [ 30 ]. Art. 45 [ 31 ]. Art. 46 [ 32 ]. Art. 47 [ 33 ]. 1951 SCR 525 [ 34 ]. AIR 1958 SC 731 [ 35 ]. AIR 1958 SC 956 [ 36 ]. AIR 1967 SC 1643 [ 37 ]. AIR 1970 SC 607 [ 38 ]. (1971) 1 SCJ 295 [ 39 ]. (1980) 3 SCC 625

Healing with technology Essay

Spinal Dynamics will aim to capture at least 10% of total spinal implants market by fourth year of operation. Spinal Dynamics plans to become Canada’s largest spinal orthopedic implant company by 2011. The Company plans to pursue vigorously and at an accelerated rate the development, production and marketing of artificial disc implant . The goal would be apart from being superior to other products it should be affordable for the masses in Canada thus contributing to human welfare by application of technology in the field of biomedical sciences. The company Spinal Dynamics is being formed for the purpose of engaging in development, production and marketing of artificial disc implants, in Canada with early and profitable operation as the prime goal. B. DESCRIPTION OF THE INDUSTRY The boom is gradually shifting from the sectors of finance and information technology towards the biomedical sector specifically the medical device industry. The major reason being increased medical treatment costs, and an urge towards better quality of life. Hip and knee replacements have become very common in spite of the high surgical costs involved. On the same lines spinal surgeries are becoming more prevalent especially because of high economic costs being incurred due to low back pain ailments. According to the statistics, patients suffering from back pain consume more that $90 billion annually in health-care expenses, with approximately $26 billion of that amount directly attributable to treating the back pain. Due to this reason a number of spinal implant companies have mushroomed throughout the U. S and Europe. The main problem in this industry is long development periods and high risks . The long drawn approval process especially in U. S due to FDA regulations is one of the reasons a lot of money is being invented in research , development and testing of the product. However medical law suites might become a big liability for the product if the device fails even once. C. CRITICAL SUCCESS FACTORS: Competencies & Capabilities: 1) Legal and regulatory factors: The medical device industry is classified as class 3 , high risk implant so its obvious that a lot of investment goes into testing and experiments with sufficient evidences to prove its safety in-vivo. There are instances when a device fails and a single lawsuit causes the entire company to close down. Thus its advisable to invest time and money , before taking the implant out to the market 2) Investment of Time & Money: As approval process is a long drawn procedure, it is necessary to have well trained quality managers and regulatory system advisors as employees. Sometimes services of external consultants or Regulatory advising companies might be used. 3) In-house surgeons/medical practitioners: As these devices cater to specific ailments and are highly specialized, it is important that we have in-house surgeons to understand the requirements of a product before we begin to design it. Infact the engineers and the surgeons should work hand in hand to come up with a better product. The crucial factors which determines success in biomedical industry 1) Availability of constant flow of Funds: For a new product to be in market, it might take 3-4 yrs, so during this period there should be a constant supply of funds to pay the employees and keep the company running. 2) Excellent marketing strategies : Its important that these products are marketed through right channels, thus its highly imperative that the products are showcased at various trade shows/conferences 3) Understanding the regulatory process: The main aim would be to bring the product soon to the market, by making a full-proof plan before the submission process for approval, as this phase is the lengthiest of all the processes. D. PEST ANALYSIS: Scope of Growth: The medical device industry out here thrives on reverse engineering concept the result is a number of ME TOO products. Infact companies end up investing on buying patents from European and American companies and do not believe in investing money for research and development of such products. There is huge market to be tapped as there is a lot of demand for these products most of which is imported from the Europe and the U. S. This area being the fastest growing market, the projected growth is expected to touch up to $16 billion in 2015 revenues. Source: Millennium Research Group. Spine Care Segments 2015 There is expected to be an increase in surgical treatment options, like facet replacement and dynamic stabilization procedures, which will likely be more acceptable to patients, perhaps doubling the % of patients accepting surgery from 3. 6% to 7% of a much larger, elderly population. As clinical results improve, this market is expected to continue to grow 20% per year and offer a tremendous opportunity to companies with innovative product lines. In 2015, industry experts project lumbar fusions will not grow, but stay at the same 2006 level of 400,000 procedures; dynamic stabilization devices will grow from 25,000 to 250,000 cases; and artificial lumbar and cervical discs grow from 25,000 to 600,000 cases, as these new procedures begin to replace spinal fusion. PART 2: A: BUSINESS OWNERSHIP: Sole proprietorship is a one-person business is registered with the state like a limited liability company (LLC) or corporation. Legally, a sole proprietorship is inseparable from its owner — the business and the owner are one and the same. This means the owner of the business reports business income and losses on his or her personal tax return and is personally liable for any business-related obligations, such as debts or court judgments. This accounts 74% of all USA businesses and for 6% of all sales in USA. Advantages: (1) decisions are made by only the owner; (2) simple process to start – just get a business license (3) profits belong to the owner; (4) pride of ownership; (5) lower taxes. Disadvantages: (1) unlimited liability (2) limited life of business (3) difficult to raise capital for business; (4) risk of lost is not shared Partnership: a partnership is simply a business owned by two or more people Just like in a sole proprietorship, the partnership’s owners pay taxes on their shares of the business income on their personal tax returns and they are each personally liable for the entire amount of any business debts and claims. 8% of all USA businesses are partnerships and accounts for 4% of all sales in USA Advantages: (1) easy to start (2) not many regulations; (3) not as difficult to raise capital for business; (4) combination of knowledge and skills. Disadvantages: (1) unlimited liability; (2) profits are shared; (3) limited life of the business; (4) disagreements Incorporation: Though forming a corporation is a bit more complicated and costly, but it is well worth the trouble for some small businesses. The main benefit of an LLC or a corporation is that these structures limit the owners’ personal liability for business debts and court judgments against the business. What sets the corporation apart from all other types of businesses is that a corporation is an independent legal and tax entity, separate from the people who own, control and manage it. Because of this separate status, the owners of a corporation don’t use their personal tax returns to pay tax on corporate profits — the corporation itself pays these taxes. Owners pay personal income tax only on money they draw from the corporation in the form of salaries, bonuses, and the like. Corporations make sense for business owners who either (1) run a risk of being sued by customers or of piling up a lot of business debts, or (2) have substantial personal assets they want to protect from business creditors. 18% of all USA businesses are corporations and accounts for 90% of all sales in USA. Advantages: (1) easy to raise capital (2) limited liability; (3) unlimited life of business; (4) Can hire specialized skills and knowledge; (5) shared risks. Disadvantages: (1) difficult to start; (2) less direct control; (3) double taxation: corporate tax and individual tax (4) limited activity. Franchising: Franchises are in which individual businessmen or people buy a well established business, but a certain percentage goes back to the corporation. Franchises must adhere to the corporate regulations. (McDonalds, Krispy Cream, Starbucks). Acquisition/Mergers: In this two companies merge together(merger) or a big company acquires a small innovative company giving rise to an acquisition. The best option to go with would be setting up a corporation or a LLC rather to start. The limited liability company or â€Å"LLC† is a relatively new form of doing business which is now recognized in most states. The LLC has grown in popularity because it combines the best features of a corporation and a partnership. Like a corporation, the owners (called â€Å"members†) of the LLC are not personally responsible for the debts of the LLC. Like a partnership, there is no dual taxation and the earnings of the business are taxed directly to the members. The LLC is also preferable in many ways to the â€Å"S corporation,† which also avoids personal liability and dual taxation. The LLC is not subject to most of the limitations which are imposed on corporations by applicable law. For example, while an corporation is not allowed to have more than one type or class of stock ownership and is not allowed to have more than 75 shareholders, the LLC is not subject to such limitations. Overall, the LLC simply allows more flexibility in the structure, operation and management of the business than does the S corporation. LLCs are similar to corporations because they also provide limited personal liability for business debts and claims. But when it comes to taxes, LLCs are more like partnerships: the owners of an LLC pay taxes on their shares of the business income on their personal tax returns.

Public education reform: Community or national funding of education Essay

Soares presents an article that draws on a political economy model of public funding as a tool to assess the education implications of moving from a community-to nation-wide funding policy. His intention is to widen the source for the finance of education that will redistribute funds both at the intra-generational and inter-generational levels. Previous literature has focused on the intra-generational redistribution effects of going from a local to state funded approach. Instead, Soares suggests a model of education reform that would see funding include the social security system and would allow factor prices to vary. Such flexibility would benefit welfare effects to students by enlarging the funding net in the form of a nation-wide system. Significant welfare gains that would occur with a nation-wide system are supported by other research (Soares, 2006; Wasser & Picken, 1996). Soares also reflects on his previous writings on the important roles of altruism and self-interest in influencing the political decisions of public education policy. He points to the inter-relationship of three main factors in determining how policy will be formed; altruism; the impact of public funding of education of the social security system; and the impact of these factors on factor prices. In conclusion, Soares article depicts a critical issue in education reform that has been ongoing for many years: How to source optimal continual funding for education that does not detract from the welfare of the wider population? He provides a viable alternative to funding. At present most States provide fewer dollars to minority and low-income students. A nation-wide funding policy would ensure that the funding gaps which exist across schools in the USA would be narrowed, providing equality of access to learning opportunities and resources. This would align with the recent No Child Left Behind Act of 2001.

HR Management Essay

Negligent hiring is the potential liability of an employer for actions of an employee who was selected for employment without adequately determining the person’s qualifications for the job. Negligent retention on the other had refers to the prospective liability an employer faces by retaining employees who it knows (or should know) a re not qualified to perform their jobs tasks or have mental or physical conditions or propensities that result in them being hazardous to themselves or others. Discussion  Employers need to do reasonable investigations on the prospective employees work experience, background, character and qualifications to avoid negligent hiring. The doctrine of hiring and retention provides that an employer have a duty to exercise reasonable care in selection and retention of his employees. The employer should be aware of the employee problems that make him or her unfit should avoid negligent retention. The employer should take further action such as investigating, discharge or reassignment. Employers want to be sure their employees are doing a good job, but employees should not have their every sneeze or trip to the water cooler logged. This is where workplace conflict comes to foreplay. Employees are the greatest assets of any company and an employer should put much care in protecting their privacy. Employees should avoid providing all their information to their employers because such information could be used for identity theft as well as carrying out criminal activities such as fraud cases leaving the employee in financial problems. Employers should also ban use of the new technology such as camera phones, digital cameras etc because offensive pictures of workers in private, embarrassing or intimate situations can be taken and sent to the net. Such technology can be used to conduct industrial espionage. In this cue therefore employers do are not obligated under any law to use devices that can intrude on the employees privacy. The employers under the contract terms reserve the blame if the employee get accident or injured during the working term. Under the labor laws the safety of the employees lies on the employer if the employee gets the injury at the point of work. It is the mandate of the Contracting firm to provide safety and health measures at all costs to the working employees who forms the main component assets in the company. WS4DQ1-Merit pay Merit pay is pay compensation given to employee based on his/her productivity. Its based on the assessment of the employee’s productivity. Hoever merit pay is rarely used as most managers use it as a strategy to motivate those indiduals well known to him or her. Merit pay should be given based on competence in work. Hard working employees need to be rewarded; this should base on achieved measurable targets, units. Merit pay should be included as part of organization package for various reasons. One is that merit pay enhances a vibrant competitive workforce and therefore eliminates laggardness in workplace. WS4DQ3-Kenneth Lay Lay was one of the Americas highest paid CEO in America. He was Presidents Bush Treasury secretary . He dumped large amounts of his Enron stock and encouraging his employees to buy more stock. As the highest paid CEO, lay never contributed much to the Organizations success; rather he greatly contributed to its downfall. Thus, he was not entitled to the handsome package he was receiving, as he got filthily involved in scandals that amounted billions of shillings leading to the collapse of Enron. WS5DQ1 Workplace violence can take a heavy toll on a business in terms of liability, lost revenue and employee productivity. Tangible costs-medical bills, Antony fees, lost wages, security cost, rehabilitation and property damage. Intangible costs include; loss of staffs time, staff replacement, company liability, moral issues that affect productivity levels. Preventing work place violence therefore means the management of the human resource should ensure the safety of work place. Work place violence can be prevented by; being always alert-no work place is safe, understanding what the problem is, developing a violence prevention plan and responding to emergency incidents. Such policies as; violence prevention plan should be put in place, the management should be at fore in been alert on any violence incident, developing a good working environment and cultivating on maintaining good teamwork relations. This is because when there is good relation among the workers, there is low chance of violence. WS5DQ2 Federal Osha does not have jurisdiction over those employed by state, county, city or municipal governments. However, several state plans do cover such public sector employment. State with approved state plans and in accordance with section 27-a of the PESH act, New York adopts and enforce occupational safety and health standards in the public sector which are identical to OSHA’s. For instance public schools must comply with same fire protecting standard as private schools, but the standards are promulgated and enforced by the state. The California department of occupational safety and health differs with the federal OSHA agencies in the sense that, states have option to establish regulations for hazards not covered by federal standards or more stringent standards than those promulgated by OSHA, which California does. California state agencies standards cover more ground and stringent than federal OSHA’s. Mainly, California OSHA agencies differ from federal agencies in such areas as; requirement for injury and illness prevention program (IIPP), hazcom standards, permissible exposure limits (PELs) and Ergonomics. OSHA’s has continuously been involved in voluntary protection programs, which has indicated effective management of safety and health protection improvement in employees moral and productivity. WS6DQ3 The involvement of unions in social policy areas and participation in self-governing bodies of national social insurance scheme has been the role of unions in Germany. With the increased importance of private pensions, trade unions have enhanced their collective bargaining role in this area. Besides unions have seized opportunities to enhance their role in collective regulation of state imposed privatization. Trade unions over the recent years have had their membership dwindling ageing of membership and lacking support among young employees. This is because the top management or leaders in the unions have taken it as their platform to pursue their welfare as opposed to the welfare of the members in the collective bargaining. WSDQ3 The NLRB does not include coverage for all workers. These include individuals who are employed as agricultural laborers, domestic servants, parents or spouse, independent contractor, employed as supervisor, employed by an employer subject to railway labor act, employees by federal state or local government and those employed by any other person who is not an employer as defined by NLRB. These employees do not have right to form unions as other workers since they are not within the NLRB jurisdiction. In one case, NLRAB was unsure how to define ‘supervisor’. Individuals who are supervisors would not be included in the bargaining unit potentially represented by unions or allowed to vote in the elections. The court ruled that this NLRB judgment is unfair. The court said there were no statutory basis for excluding ‘’professional or technical judgment’’ from joining unions. The basis of the argument therefore is that each party in work environment has a stake in forming a labor union.

Ethics Essay ­ “Miss Evers’ Boys” Essay

One unethical issue that I saw in the film was that the patients that were being used for the experiment were misinformed about their medical status. This is unethical because the patients were being lied to about something that ultimately affected their health and lives. A second unethical issue that I saw in the movie was that the medical service was not provided so as best to promote the participant’s interest. The service was provide to conduct an experiment to study the progression of Syphilis in African American men. The only reason patients consented to the experiment was because they thought that they had â€Å"bad blood† and were waiting for treatment. Thirdly, another unethical issue that I saw in the movie was that the information about the Syphilis treatment, Penicillin, was kept hidden from the patients. Even when Penicillin became the official treatment, patients never received it whether they were looking for it or not. The fourth unethical issue that I saw in the movie was that the nurse did not recognize that considerations relating to the well ­being of the individual participants in the research should have taken precedence of any interest of the doctors, science, or society.

The civil war in America Essay Example | Topics and Well Written Essays - 1250 words

The civil war in America - Essay Example Though agriculture flourished in south, farmers did not focus on generating enough food to nourish southern residents rather they focused more on cash crops such as tobacco and cotton. The North conversely had ample food for their citizens and sufficient industries to produce arsenal for their armed forces. Indeed, the northern industries were buying the unrefined cotton and converting it into finished merchandise. In addition it had a widespread railway network that could transfer men and military hardware swiftly and economically. This inequality between the two created a great divergence in economic outlooks. Primarily, this pre-eminence of the North didn't appear to make much discrepancy; like many battles in the past, those concerned thought it would be finished rapidly. But northern compensation would prove vital as the war commences. It was astonishment for the whole world that in spite of so weighty discrepancies in manpower and industrial competence, south nearly succeed in the war. There was no means that the South could probably have got up to the North, which had all of the stuff and monetary rewards, and which did an outstanding job of closing off the only benefit the South had: cotton. Because most of the South’s economy generated by exporting cotton, the North planned to put up the shutters of this trade. In order to shut up this trade the Union Government obstructed the southern ports, as a result of which the quantity of southern cotton supplied to England crashed down. And then the only reliable form of South’s income set off, which was frantically needed by South to beat the North. From the time of rebellion, two groups appeared: those quarrelling for better states rights and those quarrelling that the federal government required having more power. The first structured government of America was under the Articles of Confederation. And there was a slack confederation among the thirteen states with a very fragile federal governmen t. Nevertheless when the troubles became more annoying, the fragility of this government awakened the leaders to unite and create clandestinely the US Constitution. However the strong supporters of the nation i.e. Thomas Jefferson  and Patrick Henry were absent at this unification. Many people were of the idea that the new constitution did not give importance to the rights of the nation to carry on to operate autonomously. They believed that the states must have the right to fix on if they were ready to accept certain federal acts. This gave birth to the thought of nullification, where the states would have the right to regulate the federal acts as unauthorized. But the federal government disagreed upon giving this right to the states. However John C. Calhoun fought passionately for giving this right to the states. Even then nullification did not work and states sensed that they were not given reverence, they moved to secession. A question was also one of the reasons of occurrence of civil war in America. The question was about being slave or free of the states which were acquired by America from the Louisiana Purchase and Mexican war. The rule made by Missouri Compromise suggested that there would be prohibition on the slavery in states acquired from Louisiana Purchase. The clashes aroused during the Mexican war about the happening with new areas that are expected to be acquired by America on victory. David Wilmot suggested that slavery would be forbidden in the new lands. To treat the free and slave states, southern and northern welfare evenly a Compromise was prepared by Henry Clay and many others in 1850. Kansas-Nebraska Act of 1854 further