Wednesday, 20 September 2017

Durgesh shukla

Rohingya's Crisis | Mayanmar |

Rohingya

Myanmar also known by the name Burma which is bordered by India and Bangladesh to the west, Thailand and Laos to the east and China to its north and north-east having a total area of 676,578 sq km and capital at Naypyidaw is currently in the news for its Rohingya issue. Before going into the issue, I think it would be easier for us to understand the issue if we trace the background of its occurrence and who are Rohingyas.
 
Rohingyas are the ethnic community who reside in Rakhine area of Myanmar which account for approximately 7% population and talk in their regional language. Rohingyas are actually the Arabs, Mongol or Turkish soldiers and traders who migrated in 15th century to the Kingdom of Arakan (Rakhine State). Buddhists and the Rohingyas lived for centuries together, it was only after the British invasion that the clash between both the communities started. The British according to their infamous “divide and rule” divided both the communities and started favouring the Muslims more, they were the only one who were inducted in the army for World War II. Also due to the muslim labourers influx in Myanmar for agriculture by the British increased the population of the muslims from 5% to 30% by 1930s. When the new constitution of Myanmar was drafted till that time the status of Rohingyas was fortified enshrining them with the legal and voting rights, which was later on stripped on and they were declared stateless. Especially after the Citizenship Act, 1982, it set the condition for proving the citizenship which was impossible for the Rohingyas to do, as they have to prove that they were there before the Burmese War of 1823. The Myanmar government recognises them as they are Bengali Muslims who migrated from Bangladesh to Myanmar during the colonial period whereas Rohingyas consider them as the native inhabitants of Myanmar. After the junta were dissolved in 2011, there was certain increase in the Buddhist extremism which again tried to sideline the Rohingyas. Tensions were provoked when the small militant group, Arakan Rohingya Salvation Army(ARSA) attacked the Burmese armies in October 2016, and the army started the brutal retaliation against the innocent Rohingyas. Again on 25 August the ARSA attacked the army against which the severe blow was registered from the army.

The Rohingyas have been denied the basic human right like they don’t have access to education and are not allowed to move freely and can only marry only when they have the permission to do so. The Rohingyas lived in inhuman conditions which are prone to abuse.

INDIA’S CONCERN

The reason why India is resistance towards not allowing the Rohingyas in India is because of many reasons. If we take the security concern then the illegal migration would affect the security of India deeply and also there are proofs of Rohingyas presence in terrorist groups. Also the illegal migration would increase the load on the India economy for providing food and space. Also last but not the least if India accepted the Rohingyas then it would be in direct conflict with Myanmar, on which India is depended for the control of terrorist activities in the north-east. Due to the tie with Myanmar the insurgency in North Eastern part is in control, and if India will be in conflict with Myanmar then it would help the insurgent groups in North-East. Also the relation with Myanmar helps in increasing trade in the south-east region. The China has its border with Myanmar from the east and north-east, so if India went against Myanmar, then China would for support the Myanmar and it is already in support of Myanmar step against Rohingyas.
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Tuesday, 19 September 2017

KARTIKEY SINGH SOMVANSHI

DIPAK MISRA: SOLUTION PROVIDER TO CONTROVERSIES




Dipak Misra, a gem to the Indian judiciary, is known for delivering judgments to the most looked after matters by the media and the masses starting from his Indian National Anthem order or his Arunachal Pradesh emergency lifting order in merely 3 minutes or uplifting of Criminal Defamation law of India to the recent Jallikattu verdict. In Priyanka Srivastava and Anr v State of UP and Ors, his 192 word opening sentence on abuse of procedural provisions is also considered to be the longest sentences ever written in a Supreme Court judgment.
CAREER
Born on 3 October 1953 and the nephew of Ranganath Misra (Chief Justice of Supreme Court from September 1990 to November 1991), Justice Dipak Misra has worked as former Chief Justice of Patna and Delhi High Courts and presently the Chief Justice of India. He enrolled at the Bar in 1977 and then practiced at Odisha High Court. He was later, in 1996 was appointed as the Additional Judge of the Odisha High Court. He was in 1997 made a permanent judge of the Madhya Pradesh High Court. He also worked as the Chief Justice of the Patna High Court for more than a quarter of a year commencing from December 2006 to May 2010. He then served as the Chief Justice of the Delhi High Court and was soon elevated to the Supreme Court in 2011 and became the 45th Chief Justice of India after J.S. Kehar.
PROMINENT JUDGMENTS
Beginning with, Justice Misra led the 3 judge bench on Nirbhaya Rape case of 2012 in which appeal was filed by the four convicts (namely Akshay Thakur, Pawan Gupta, Vinay Sharma and Mukesh Singh after one of the accused committed suicide in prison by hanging himself and the other being a juvenile was sent to the reform home for 3 years) against their death penalty but the bench upheld the death sentence awarded to the four convicts.
The bench constituting of Justice Misra and Justice Prafulla Pant in 2016 upheld the constitutional validity of Criminal Defamation Law after it was contested Delhi CM Arvind Kejriwal, Congress vice president Rahul Gandhi and Subramaniam Swamy where the criminal defamation law was argued to be in discord with the freedom of speech and expression. The bench upheld the relevant sections 499 and Section 500 of the Indian Penal Code which talk about defamation and the punishment which shall follow the act. The relevance if the judgment becomes vital on the political arena where acts of defamation are quite common under the veil of “good faith” (especially the one against the Delhi CM by Arun Jaitley in this case) and each case spans for years unlike that of UK where defamation cases are resolved as a speedy process.    
Another instance when the bench constituting Dipak Misra and Amitava Roy refused to entertain the plea of Ashwini Kumar Upadhyay, BJP spokesperson on playing of National Anthem in all courts before the start of the proceedings. This gathered mass attention because earlier in November 2016, playing of National Anthem became mandatory for all cinema halls before the screening of the movie and the audience has to stand to show respect to the motherland which is reflected by the act of respecting the National flag as well as the National anthem. Also the entry and exit doors will remain closed to avoid any disturbance during the anthem. But in this plea, Justice Misra said that “an order of the Supreme Court should not be stretched and the bar should show some restrain.
His judgment on banning jallikattu, a bull taming sport under the garb of culture was also highly criticized by him quoting that the conservation of culture should not result into the infliction of pain and suffering to the animals.
The five judge bench headed by Justice Dipak Misra on examining the contentious issue of the privacy policy of WhatsApp concluded that the data of the users is an integral part of the Right to Life and personal liberty of citizens under the constitution of India and it comes out with regulations to guard it. If any contractual obligations violate that, it would certainly be followed by ramifications.
Thus, Dipak Misra has already enriched the Indian Judiciary with his valuable judgments and his term as the Chief Justice of India is expected to further add on to this list. 
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Thursday, 7 September 2017

KARTIKEY SINGH SOMVANSHI

IT ALL COMES DOWN TO 3 WORDS: TALAQ, TALAQ AND TALAQ (Triple Talaq)



One of the landmark judgments this year was the Apex Court’s decision invalidating the practice of Triple Talaq on the ground of it being unconstitutional. It was hardly a week or so, a newspaper headline quoted “Muslim body of Barelvi Sunni Muslims in Uttar Pradesh has asked madrassas to include Triple Talaq in the syllabus.” The reason given by the Organization was that the parents fear telling their kids about the practice fearing it to have a detrimental effect on their child. The question whether making the practice more overtly visible to kids of a tender age will do some good or not is yet to be found out which at the present moment is attracting a lot of criticism from the parents.
SHAYARA BANO V. UNION OF INDIA
This case popularly known today as the “Triple Talaq case” has challenged the constitutional validity of some Muslim Personal Law practices like triple talaq, nikah halala and polygamy.
The Supreme Court in its judgment has quashed the practice which is about 1400 years old as gender discriminatory and also violating the Right to Equality as enshrined in the Constitution of India, 1950.
In this case, Shayara Bano, the petitioner approached the court after her divorce with her husband, Rizwan Ahmad in 2015. Her husband in the presence of two witnesses uttered the word talaq three times and said that from that day their relation as Husband and wife ceases. Shayara aggrieved by this, challenged Section 2 of the Muslim Personal Law (Shariat) Application Act 1937 as unconstitutional which permits the unilateral and irrevocable termination of the ties of matrimony. Section 2 talks about the Application of Personal Law to Muslims in the field of succession, matrimony and dissolution of Marriage etc.
The most striking feature of this judgment was that the impartiality in the decision making process can be traced by the fact that the five judge bench which gave the verdict belonged to different faiths. The 5 judge bench held the practice of Talaq-e-biddat as unconstitutional by a majority of 3:2 different opinions after hearing seven petitions where women complained of their dissolution of marriage on whatapp and on facebook. While on one hand, Justice Kehar and Justice Abdul Nazeer favoured on putting a hold on the practice and asked the government to frame laws for the same, Justice RF Nariman, Justice Kurian Joseph and U.U. Lalit held it as violative of the Constitution. But what was unanimous was that the bench held this practice as “the Worst and undesirable way to end marriage.”
IS TRIPLE TALAQ REALLY UNCONSTITUTIONAL
The answer is NO. The Supreme Court has only banned instant triple talaq and declared it to be unconstitutional and not “Triple Talaq” per se. Thus, a difference between the two has to be clearly demarcated. While on one hand, instant Triple Talaq or talaq-e-biddat happens by the three times uttering the word “talaq” in one instance through phone, messages or e-mail or normal sitting. In the other form of talaq i.e. talaq-ul-sunnat, the husband can say the word ‘talaq’ once and then say it the second time only during the next lunar cycle till then the women prepares herself for the “iddat” period.
Talaq-e-biddat is usually irrevocable and if the husband wants to reconcile later then it could only be done through nikah-e-halala in which the women should consummate her second marriage, then get divorced and after following three months of iddat period can return to her husband which actually seems to be more of a punishment to Muslim Women instead of reconciliation.
CONSTITUTIONAL VALIDITY
The practice of Triple Talaq puts into question three of the most important Fundamental Rights of a citizen namely Right to Equality, Protection against discrimination and Right to life and Liberty as enshrined in the Indian Constitution under Article 14, 15 and 21 respectively. The decision can also be credited for making a step closer towards the Uniform Civil Code under Article 44 which mandates the replacement of personal laws which are based on customs and scriptures with a uniform set of rules that govern every citizen.   
It is to be noted that the provisions of the 1937 Act (Section 2) would be hit by Article 13 to the extent of the inconsistency with the Provisions under Part III of the Constitution. Thus, instantaneous Triple Talaq practice if violated any constitutional provision would be void which was also put forth by Justice Nariman. 
IS TRIPLE TALAQ AN ESSENTIAL PART OF MUSLIM LAW
Article 25 of the Indian Constitution only protects “vital” or “essential” aspects of religion and hence, it is quite essential to find out whether the Muslim Personal Law Board's contention on Triple Talaq saved by the constitutional provision or not becomes of prime importance. Salman Khurshid, a senior advocate assisting the court suggested that this practice was optional and the women had the right to stipulate in her “nikahnama” that the husband could not have the right to dissolve marriage by triple talaq making it clear that this practice doesn’t form the core of the Shariat Law and hence no claim for protection under Article 25.
CONCLUSION
This verdict on declaring the practice of Triple Talaq is undoubtedly going to ameliorate the condition of Muslim Women by protecting them against the unilateral dissolution of marriage and shows that no matter how old a custom or practice is, it would be vitiated in case it violates the basic tenets of Human Rights and is definitely a step towards achieving Uniform Civil Code in the country.    
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Friday, 1 September 2017

KARTIKEY SINGH SOMVANSHI

Kambala and Jallikattu: A Relation Reargued

Kambala and Jallikattu

Amidst a lot of criticism and controversies, the Supreme Court ripped Tamil Nadu’s attempt to bring back Jallikattu by bypassing its own judgment of 2014 which banned the sport involving bulls on grounds of it as constituting extreme animal cruelty which involved young men wrestling with bulls under the veil of celebration of the harvest. In this sport before the bulls are released in the crowd they are prodded with sharp sticks and then tortured by pouring chilli powder on the animal. In Animal Welfare Board of India v A Nagaraja[1], it was propounded that such rough or abusive handling of bulls is a compromise of animal welfare and instills fear by causing both physical and mental harm to the animal. The bullock cart race and such events per se violate Section 3, 11(1)(a), 21 and 22 of the PCA Act (Prevention of Cruelty to Animals Act, 1960). The Court also said that conservation of  “culture” should not be at the cost of inflicting unnecessary pain to the meek animals.
 
But recently the Union Ministry of Law and justice passed the Prevention of Cruelty to Animals (Karnataka Amendment) Bill 2017 which legalizes the traditional slush track buffalo race, Kambala. Previously, in November 2016 the sport was banned by the Karnataka High Court along with the bull cart race across the state on account of the Hon’ble Supreme Court’s judgment on Jallikattu but following the mass protests by Kambala organizers, the Prevention of Cruelty to Animals (Karnataka Amendment) Bill 2017 which permits the traditional buffalo race and bullock cart racing was passed. Also the Union Home Ministry directed the State Government to omit or modify the phrase “subject to such other conditions as may be prescribed” in Section 3(2) which empowered the state government to include more sports involving animals by the government notifications in future.
 
BACKGROUND OF JALLIKATTU AND KAMBALA
Jallikattu is derived from Salli and kattu referring to the coins that are tied to the bull’s horns which the participants try to retrieve. It has known to have been practiced since 400-100 BC i.e. the Tamil Classical period. Later, it became a symbol of bravery and valor. A seal from the Indus Valley Civilization which portrays the practice is also preserved in the National Museum, New Delhi. In this traditional sport, a bull of specific breed is released in the crowd of people who try to grab the bull’s back and attempt to bring it to a stop. This sport is practiced specifically in the states of Tamil Nadu on the occasion of Pongal celebrations.
 
On the other hand, Kambala is an annual Buffalo race in the regions constituting Tulu Nadu. This celebration of Kambala last for about 4 months beginning from November onwards. Apart from rural entertainment it is also a means to thank god for protecting their animals from disease.
 
REASON FOR DEBATE AND CONTROVERSIES REVOLVING THE SPORTS
The debate revolving Jallikattu started since 2004 when PETA (People for the Ethical Treatment of Animals) and Animal Welfare Board challenged the sport as being inherently cruel as the animal should not be allowed to exhibit as performing animals. The sport was a demonstration of the valor of man and the distress, fear and pain of the animal. Thus, the court held that Bulls cannot be used as performing animals for Jallikattu and Bullock cart races, since they are not designed for such performances and are pack animals. Later in 2016, a review petition was filed by the Tamil Nadu government to lift the ban which was dismissed by the court which was then followed by violent protests claiming the sport to be a cultural aspect of the state invoking Article 29(1) of the Indian Constitution which permits the citizens to “conserve their culture”.
 
Moreover, the Kambala protests also owe their origin by the attempts of PETA which claimed animal cruelty which is perpetuated by the whipping of the animal during the race. These traditional sports were stayed by the High Court in view of the Hon’ble Supreme Court decision on Jallikattu. Later, the Karnataka Assembly passed the Prevention of Cruelty to Animals (Karnataka Amendment) Bill, 2017 which legalized Kambala.
 
PCA 1960 AND THE SPORTS
Various grounds are looked before a sport is banned. The Prevention of Cruelty on Animals Act, 1960 is also such act which banned the sport of Jallikattu on various grounds. Starting with, Section 3 of the Act which describes the duty of the person who is having the charge of animals to prevent any unnecessary pain or sufferings to the animal which in case of Jallikattu was absent making the organizers of the sport also liable for their recklessness under the said act.
 
Section 11(1)(a) says that if a person beats, kicks, over-rides, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering, or being the owner permits, any animal to be so treated; shall be punished. In Jallikattu, such practices are common whereas Kambala is simply a sport involving races in which no such extent of cruelty is done to the bullocks. Section 23 talks about the restriction on the exhibition and training of animals as a performing animal which again is infringed under the sport of Jallikattu.
 
CONCLUSION
The promulgation of the Prevention of Cruelty to Animals (Karnataka Amendment) Ordinance, 2017 was approved by the President on July 2017. The question whether Kambala should also be banned like jallikattu can be traced by the treatment of animal during the sport. Jallikattu was banned not because it involved animals and their taming but because the animal are sometimes made to consume alcohols and chilli powder was also rubbed on them to provoke and incite them. They are not just subdued but their tails are twisted and even bitten in most painful manner among many other similar acts. Whereas Kambala is a bullock racing sport unlike jallikattu which involves bull taming and also special care is taken by the owners of these bullocks by feeding and maintaining them properly. Hence. Kambala is fairly away from the infliction of cruelty on animals which makes it distant to a doppelganger sport of jallikattu which tries to justify culture by inflicting pain to animals.

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[1] Animal Welfare Board of India v A Nagaraja (2014) 7 SCC 547
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Wednesday, 30 August 2017

Shradha Arora

Rights of an Arrested person in India

Rights of an Arrested person

One of the basic principles on which the Indian Legal System is based on the benefit of the presumption of innocence of the accused till he is found guilty at the end of a trial on legal evidence. This principle embodied in the Indian Legal System offers certain rights which are available to the person who is accused of committing a crime. The provisions related to such rights are found in The Indian Constitution, 1950 and The Code of Criminal Procedure, 1908. These rights found in the stated statutes clearly reflect the intention of the legislature that hundreds of guilty persons may got scot free but even one innocent should not be punished.

The rights available under the Constitution of India, 1950
 
1. Protection against Ex Post Facto Law: An ex post facto law as laid down under Clause (1) of Article 20 of the Indian Constitution says that “no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Article 11, para 2 of the Universal Declaration of Human Rights, 1948 provides freedom from ex-post facto laws.
 
2. Doctrine of “autrefois acquit” and “autrefois convict: This doctrine has been laid down under Article 20 (2) of the Indian Constitution and Section 300 of the Code of Criminal Procedure, 1908. According to this doctrine an accused cannot be punished/convicted for the same crime again. This is called as Right against double jeopardy.

3. Prohibition against self incrimination: Article 20 (3) of the Indian Constitution lays down that no person can be forced to be a witness is his own case. Article 20(3) embodies the general principles of English and American jurisprudence that no one shall be compelled to give testimony which may expose him to prosecution for crime.

4.Right to be produced before the Magistrate: As per Article 22 of the Indian Constitution, Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for such journey from the place of arrest to the court of magistrate and no person shall be detained in custody beyond the said period without the authority of the magistrate.

5.Right to Silence:
The ‘right to silence’ is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court. The Justice Malimath Committee writes about the origin of the right to silence that “it was essentially the right to refuse to answer and incriminate oneself in the absence of a proper charge. Not initially, the right to refuse to reply to a proper charge.”

Rights available under The Code of Criminal Procedure, 1908


1. Right to a copy of Police Report and other documents As per Section 207 of the Code of Criminal Procedure, 1908, an accused has the right to be furnished with the FIR, the Police Report (Section 154) , the recorded statements (Section 161) and any other cofessions. (Section 164)

2. Right to be discharged when no sufficient ground:
As per Section 227 of the Code of Criminal Procedure, 1908 in case the judge is of the opinion there exists no sufficient ground for arrest, the accused has a right to be discharged.

3.Right to present evidence: According to the provision laid down under Section 243 (1), the accused has the right to present evidence and defend himself in the case against him.

4. Right to be defended: The accused has the right to be defended as laid down under Section 303 of the Code of Criminal Procedure 1908 along with Article 22 of The Constitution of India, 1950.

5.Right to be present when the evidence is taken: As per the provision laid down under Section 273 of the Code of Criminal Procedure, 1908 the accused has the right to be present and this is obligatory upon the Magistrate.

6.Legal Aid by State in certain cases:
In Khatri v. State of Bihar, the Supreme Court has held that the state is under a constitutional mandate (implicit in Article 21) to provide free legal aid to an indigent accused person, an and the constitutional obligation to provide free legal aid does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate, as also when remanded from time to time.

Conclusion
The above list makes it clear that the Indian Legal System offers a variety of rights for the protection of the accused. However, it is generally believed that in spite of the various safeguards in the Cr.P.C. as well as the in the Constitution, the power of arrest given to the police is being misused till this day. It is also believed that the police often use their position of power to threaten the arrested persons and take advantage of their office to extort money. There have also been innumerable reports on custodial violence that lead many to believe that deprivation of basic rights of the arrested persons has become commonplace nowadays.
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Thursday, 24 August 2017

Abhishek Naharia 007

Prosecution Of A Unsound Mind Person

Unsound Mind

Introduction:
Chapter XXV of the Code of Criminal Procedure deals with the provisions in relation to the accused persons of Unsound Mind. Where Section 328 talks about the procedure in case of accused being lunatic, 329 talks about procedure being dealt with when the person si unsound mind.

Section 329 states as follows: (1) “If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.[1] (2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Magistrate or Court.[2]

Scope Of The Section:
This section deals with the application in the Magistrate Court or the Court of Session at District level. The Court is under a liability to at first place take into consideration whether the person against whom the enquiry has been held is of unsound mind or not. As per the principles of natural justice[3] the accused who is believed to be of unsound mind has every right to be heard before the Court. In the case of Dr. Jaishankar v state of Himachal Pradesh,[4] the phrase “reason to believe” was interpreted and it was held that it means that belief which a reasonable person would entertain on the facts placed before him. It was also held further that the Magistrate was “duty bound” to try into the unsoundness of mind before having the case commenced. Therefore, with regards to Section 464 of the Criminal Procedure Code, it was held that this enquiry must be a threshold one.

In another case of State of Mysore v Seetharam[5], it was held that if on an enquiry held for the unsoundness leads the Court to the belief that the person is of sound mind and in his reasonableness, was capable of making his defence at the time of his trial, he will be prosecuted under subsequent sections for the offences committed by him.

Therefore, if he is found to have a sound mind, an enquiry must be held under 332 and he should be dealt under 333 and 334. If not, the proceedings must be stayed and action must be taken under Section 330 until he reverts to sanity.
The object of the enquiry under this section of Cr.P.C. is to check whether the person is capable of making his defence or not.

Inquiry Into Unsoundness Of The Mind:
Mere certificate in regards to the insanity of the person is not enough. This means to say that the medical certificate that is prescribed for the accused by the Medical officer is not enough and the Magistrate must examine him. In the plea of insanity raised by the accused, it is the duty of the prosecution to subject the accused in the trial to medical examination immediately. This carries importance because if it is found out during the course of the investigation that the accused has been suffering from a mental disease, the prosecution is further duty bound to place before the Court all the evidence that could be available to show that the accused had committed the offence with a proper state of mind. [6]

If it appears to the Judge that the accused is incapable of making his defence, his duty is to follow the procedure in Section 329. There lies a distinction between incapacity at the time of commission of offence and at the time of trial. [7] Where it appears to the Court that the accused is perfectly normal and that no mental disorder is apparent, there is no obligation to make any enquiry. But, if doubt arises in relation to the soundness of mind at any stage when the trial is commenced, the obvious course would be to postpone the hearing and inquire in to the matter first.

Analysis And Inference:
The Court is very supportive with the accused in the cases when he is of unsound mind. When the medical report states that he is of unsound mind, it is directed to be taken up for hearing as the Court is also justified with the fact that because he is unable to make himself heard or through a lawyer, he is Court would provide him with the reasonable opportunity of being heard. The Court in these circumstances is bound to afford him the same protection to which he would have been entitled having been of unsound mind at the time of trial. [8]

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[1] Section 329 (1) Code of Criminal Procedure, 1973.
[2] Section 329 (2) Code of Criminal Procedure, 1973.
[3] Article 14, Article 311 The Constitution of India, 1950.
[4] Dr. Jaishankar v State of Himachal Pradesh, AIR 1972 SC 2267.
[5] State of Mysore v Seetharam, AIR 1964 Mys 50.[6] State of Maharashtra v Gobind Mahatarba Shinde, 2010 Cr LJ 3586 (3590) (Bom).
[7] Durga Charan, 65 CWN 290.
[8] Vivian Rodrick v State of W.B. 1969 3 SCC 176.
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Thursday, 17 August 2017

Durgesh shukla

Justice Dipak Misra: 45th Chief Justice of India

Justice Dipak Misra
 
“Kalijai” one of the renowned Odia poem written by Godabarish Misra, an eminent Odia poet and grandfather of our next Chief Justice Of India, Justice Dipak Misra. The poem ‘Kalijai’ written around 1930s openly criticized our patriarchal society in which the girl ‘Kalijai’ ultimately accepted death beside going back to her in laws’ house where she was treated like a slave. Justice Dipak Misra is also a great supporter of women’s right and he keeps on raising these issues in his lectures and seminars where he is invited to. Godabarish Misra was a renowned Odia poet, he was the one who prevented Odia from being swallowed up by Bengali as a language. Justice Dipak Misra’s uncle Ranganath Misra, was the 21st Chief Justice of India and also famous for National Commission on Religious and Linguistic Minorities famously known by Ranganath Misra Commisssion. Justice Dipak Misra being from a renowned and first judicial family of Odisha has successfully made his name in the Indian Judiciary and a landmark in Odia culture and society. Justice Dipak Misra’s judgements are unique as they have a literary and sometimes poetic quality which he usually revels in quoting from ancient Indian texts as well as western classics, which shows how much is he influenced by his family in Odisha that has a rich literary heritage.
 
Justice Misra would take the Oath on August 27 as the 45th Chief Justice Of India succeeding present CJI Jagdish Singh Khehar and will have a tenure of 14 months till October, 2018. Justice Misra would be the 3rd CJI from Odisha after Ranganath Misra (1990-91) and G.B.Pattanaik (2002).
 
Justice Misra enrolled as a lawyer on 14th Feb, 1977 and started practicing at Odisha High Court and the Service Tribunal. He practised constitutional, civil, criminal, revenue, service and sales tax law in the Orissa High Court and other tribunals till his elevation as an Additional Judge of the High Court in January 1996. From there he was transferred to Madhya Pradesh High Court where he was elevated as Permanent Judge in the year 1997. Finally in 2009, he was appointed Chief Justice of Patna High Court and served for almost 1 year there. After that he was appointed Chief Justice of Delhi High Court. Justice Misra was appointed as Supreme Court Judge on 10th October, 2011. After serving in Supreme Court for almost 7 years, he will now be appointed CJI at the age of 63.
 
Justice Misra has delivered some the landmark judgement which attracted the nation’s attention, which includes the National Anthem case and also the Devkidas Ramchandra Tuljapurkar vs State of Maharashtra case in the use of offensive language to describe “historically respected personalities” was held to be a criminal offense. He was the one who led the bench in Nirbhaya case and confirmed the death sentence of the four convicts. Justice Misra will be one the most eloquent CJI which we would ever have.
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Tuesday, 15 August 2017

Anshul Parsai

Gambling Laws : Regulation and Jurisdictions on Gambling


Gambling is an act of wagering 'stakes' on those events which have a totally uncertain outcome. In India, we may say from a bird's eye view, that gambling is illegal. The statute which deals with the act of gambling is called 'The Public Gambling Act 1867'. The 150 years old act is the only central act which deals with the subject, the reason being the inclosure of 'Betting & Gambling' in the State List. That means the rules and regulations with respect to betting and/or gambling are in the hands of the state governments and not the union. Some states have adopted the central act while the others have enacted their own legislations regarding the same.
 
Here, I look forward to making you all aware about the unreasonable and debatable provisions of the act i.e. The Public Gambling Act 1867. With it not being updated for more than a century, the activity within the section 3 imposes a fine of whole 200 bucks on the owner of a 'gaming house' and/or a jail time of 3 months. Further, the people found in those gaming houses are liable to pay a fine of Rs. 100 and/or to serve a period of one month (Section 4). The above mentioned are the maximum amounts/periods of fines/jail time to be rewarded.Moreover, Section 13 imposes a fine of mere 50 rupees for the offenders caught gaming and setting birds and animals to fight in public streets.

These irrational amounts are just a result of the act being old, REALLY OLD!
 
According to section 9 of the PGA, there is required no proof of 'playing for stakes' and thus a person caught playing in a gaming house (as in the context) he can't plead the defence that he was a mere player and was not playing for any stakes. Also, section 6 makes, finding of cards, dices or any other instruments of gaming enough evidence and no observance of actual playing stand necessary.
 
Now, is gambling illegal?




 

Gambling is legal in selective states in India (Goa, Sikkim and Daman) and in the rest of the country, it depends on the nature of the game in question. Section12 of the PGA, states that Nothing in the foregoing provisions of this Act contained shall be held to apply to any game of mere skill wherever played. Thus the events (games majorly) which require a certain skill to be pursued are not governed by the act and thus betting on them may not be punishable (fixing is not being talked about). What are the games of skill? With betting on horse-racing being legalized, this question still remains in depths of ambiguity. There can be and have been many interpretations of the said section. Madras High Court in ajudgment has marked Rummy (a card game) as a game of skill as it requires considerable skill, that of memorizing the fall of cards and also that of holding and discarding the cards.
With respect to what exactly can be a definition for a game of skill, I'd like to quote a Supreme Court judgement from 1996 - '...A game of skill, on the other hand - although the element of chance necessarily cannot be entirely eliminated, is one in which success depends principally upon the superior knowledge, training, attention, experience and adroitness of the player. Golf, chess and even Rummy are considered to be games of skill. The courts have reasoned that there are few games, if any, which consist purely of chance or skill, and as such a game of chance is one in which the element of chance predominates over the element of skill, and a game of skill is one in which the element of skill predominates over the element of chance. It is sue dominant element - "skill" or "chance" - which determines the character of the game'. Thus here too everything, just like in any other field of law, comes to the phrase "It Depends".
People against legalizing gambling usually base their stand on the act being morally wrong and addictive. On the other hand, those who are for legalizing the act may consider the economic factor of it. In the calculation of our national income, incomes from illegal activities like gambling are not counted, and thus despite people earning (also losing) a lot of money in the sector, there's no revenue income to the government. In the state of Goa, where it is legal to gamble, the state government had an income of over 100 crores from this sector.

Conclusion:
It won't be wrong to call gambling as morally wrong, as it has been a reason for destruction of many families but our laws are way too old to cope up with the modernized culture. This takes out the most important feature of the law 'dynamicity', law being dynamic is the major reason why it is called as the best means of social control. The Public Gambling Act is over 150 years old and thus it is time for a renewal. Along with different state legislation, it is important to have a central act which can be referred to in cases of confusion. The game of skill part, for instance, requires a thorough scrutiny by the judges. As the mindsets of judges may differ in various circumstances. Rummy being judged as a game of skill may be a good example, because even though the judgement is right as it requires skill to memorize the fall of cards and to hold and discard them, as soon as a deck is shuffled chance comes into play. No, game can be, thus, a game of mere skill, some amount of chance is always there, which makes Section 12 of the PGA quite irrelevant.
Legalizing gambling can be a good step as it'll boost the GDP growth of the nation exponentially.

P.S. - It is always a Goa trip and not a Bhopal trip which we plan about... ever wondered why?
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Friday, 11 August 2017

Abhishek Naharia 007

Dishonour of Cheque: Punishment under NI Act

Dishonour of Cheque

INTRODUCTION:

Negotiable Instrument literally means any promissory note, bill of exchange or cheque, and in easier terms, it means a piece of paper which will hold the promisee to claim some amount of money out of the paper. Section 6 of the Negotiable Instruments Act defines the word cheque. It further is classified as Bearer Cheque, Crossed Cheque, Self Cheque, Post-dated cheque, Banker’s cheque and traveller’s cheque. In general sense, cheques are the easiest way to transact in the present times. One may easily transfer money through cheques over long distances on a daily basis. On one hand, wherein cheques are used to transact daily over the relationship of trust, it is always advisable on the face of it during transactions that the cheque be issued in the crossed account payee section to avoid its misuse. It is also stated that the transactions as these cheques are not negotiable to any other person than payee, it gives a prima facie advantage to both of them. In a layman’s language, a cheque is said to be dishonoured when it is deposited in the bank and is withdrawn by the bank at first place. It is thus said in general parlance that the one who is said to receive the cheque, i.e. the payee has complete rights to sue the one who has drawn the cheque, i.e. the drawer.

PROCEDURE:

A cheque becomes dishonoured when it is not credited by the Bank, and that might be due to various reasons such as the mismatch of signature, insufficient money present in the account from which it is credited, invalid date mentioned on the cheque, expiry of the limitation period. The purpose of bringing acts such as the Negotiable Instruments Act in the ambit of law is that there engraves a sense of responsibility in the people holding power. Earlier before the enactment of the Act, there used to be limited scope for the person filing for claim, but after the Act has come into effect, it has transformed the culprits to the right amount of punishment that they deserved. The civil liability has been transformed into a criminal liability in case of dishonour of cheques. So, before the NI Act, the act of dishonouring of a cheque was purely a civil liability. Therefore, now the offence under Section 138 is not a crime per se, but it is created by the statute. Howsoever, as there were many shortcomings seen in the provisions of the Penal Code, thus the NI Act was enacted.

Limitation is an important aspect for initiating proceedings u/s 138 or 141 of Negotiable Instruments Act so as to get the justice from the court. The complainant have to send a legal notice within 30 days from the date of Returning memo from the bank (dishonour) of cheque asking the noticee to pay the amount within 15 days. On expiry of 15 days from the service of Legal notice, The complainant have to file a complaint before the Concerned magistrate within 1 month of the said expiry as per the Limitation Act. However, it is pertinent to mention that nothing precludes you from filing a separate civil suit for recovery of the amount due the limitation of which is 3 years from the cause of action/ date of dishonour of the said cheque.

PRACTICAL ASPECT:

It usually happens in the real world that if the cheque is said to be dishonoured, then the drawee bank, i.e. the one who withdraws the payment to the payee on the behalf of the drawer is said to have issued notice to the banker of the payee mentioning the reason for non-payment of the same. Under such circumstances, the payee lends back the dishonoured cheque to the drawee bank in the limitation period of 3 months, wherein if the payee then onwards fails to complete the debt, then the payee has all the legal rights against the drawer of the cheque and is free to draw legal claims from him. Once a cheque is dishonoured, then the person is called as defaulter and once he becomes a defaulter, he comes under the black shadow of being sued legally by the other person.

PUNISHMENT UNDER NI ACT:

The Negotiable Instruments Act has come into place in 1881 and since then it has been amended many times. Section 138 of the NI Act provides for the punishment for the Dishonour of Cheques. The punishment that is prescribed under the NI Act is up to 2 years of punishment as well as the monetary losses amounting to double the amount of the cheque bounced. Working under strict limitation periods, the payee has to send the notice to the drawer before suing him in the court f law stating that he will be held liable if he does not act at the proper time. This period is called the notice period. Therefore, after the expiration of the notice period, the payee is liable to sue the drawer under the provisions of Section 138 of the Negotiable Instruments Act, 1881.

CONCLUSION:

The NI Act lays down very simple and comprehensive step by step procedure of Law to sue the defaulter. Sections 138-142 of the NI Act deal with the punishment in regard to the defaulters. So, on completion of all the provisions of law beginning from the limitation period of the cheque return memo to the notice period, the defaulter may be held for the crime, providing justice to the needy, hence serving the purpose of Law.
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Tuesday, 8 August 2017

Durgesh shukla

Arbitration and Conciliation act (ADR) : Meaning, Importance

Arbitration and Conciliation act (ADR)

“Justice delayed is justice denied.”
This is the phrase related to Indian Judiciary to which I have been introduced much before I joined my law school. To some extent it is correct also, why it should not be when we have 18 judges on 10 lakh people[1]. With such an amount of cases pending it is almost impossible to settle the matters filed in the courts quickly. In order to serve as a shock observer nowadays we have something called the Alternate Dispute Resolution (ADR) mechanism, which has been used all over the world and is more effective, faster and less expensive. Within ADR we have four different types of methods:

(a) Negotiation
(b) Mediation
(c) Arbitration
(d) Conciliation

In this article I am going to focus on arbitration in India. Arbitration in Indian has been there since time immemorial[2]. When the British started to regulate the judicial system in India, a catena of regulation and acts were passed to formulate the arbitration system back in 18th century in India. Arbitration is recognised by many Indian Acts like Indian Contract Act, 1872 and Specific Relief Act, 1878. The first act related to arbitration was passed in the year 1899 which was replaced by Arbitration Act, 1940 which was finally replaced by Arbitration and Conciliation Act, 1996 and now we have an amendment to it in 2015, the Arbitration and Conciliation Act, 2015.

Arbitration has been defined as the way of settling disputes through the intervention of the third person. There are also options of settling these disputes through permanent arbitral institutions like, Chamber of Commerce or Indian Council of Arbitration etc.

There are many advantages of pursuing your matter in arbitration, the first and foremost is privacy, the parties doesn’t have to face the public criticism and embarrassing moments that they usually have to face in public. The parties to the arbitration have independence to choose their arbitrator and also the place of arbitration as per their convenience. The parties can also choose their own language of arbitration. Also arbitration is cheaper than court proceedings as there is no a court fee, process fees, or incidental fees. In court proceedings the courts have to follow the Code of Civil Procedure, 1908 and the Rules of the Indian Evidence Act, while in arbitration proceedings can be informal and the parties themselves can act as the arbitrators and the proceeding is based on natural justice principles. Also once the award is made it cannot be challenged, only the procedure of the arbitration can be challenged[3].

However there are certain matters that cannot be decided in arbitration like matters of divorce, disputes regarding the matter of appointment of guardian, matters of criminal proceeding, industrial disputes, mill disputes, disputes of illegal contracts and this list is exhaustive. An amendment to the 1996 act was made in order to keep it to the international level following the UNCITRAL laws[4].

Recently Srikrishna Committee submitted its report on “Institutional Arbitration in India” which is one of government’s optimistic steps towards arbitration in India. The arbitration in India will speed up the process of resolving the disputes and will also motivate the parties to settle their disputes without any intervention of the court. .
_______________________________
[1]India has 18 judges per ten lakh people: Law Ministry
http://indianexpress.com/article/india/india-news-india/india-has-18-judges-per-ten-lakh-people-law-ministry-2953735/
[2] There were Panchayats in every community and every village and all disputes were settled by those panchayats. It was the easiest, cheapest and quickest system of settlement of disputes.
[3] Section 34, Arbitration and Conciliation Act, 1996.
[4] UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006.
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Sunday, 6 August 2017

Shradha Arora

Breach of Promise to Marriage

Breach of Promise to Marriage

The need for new rape laws in India was felt as the prevalent laws in India were not appropriate. The Supreme Court after the Delhi Gang Rape Case, 2012 had recognized the inadequacies in the laws relating to rape and had suggested that the legislature should bring about the required changes. The Law Commission had examined the entire laws relating to rape in the Indian Penal Code and had suggested a complete overhauling of the law. The new law after the 2013 Criminal Amendment made changes in Section 375 of IPC stating rape. The law expanded the definition of rape including penetration by objects or by any part and also included the seven clauses of rape.

As per clauses second, third, fourth and fifth of Section 375, Rape is committed if the man has sexual intercourse with a women without her consent or if the consent has been obtained by force or fraud, or if there is a consent obtained by a misconception of fact. Section 90 of the IPC defines consent. It states that an invalid consent is one whereby the consent is obtained under fear of injury or misconception of fact.The questions now to be closely dealt with is, firstly, whether consent obtained in the pretext of a false promise to marry is a valid consent or not and, secondly, whether sexual intercourse after such a consent will amount to rape or not.

The Supreme Court of India held that sex based on false promise of marriage can be rape in certain cases. The court observed that there is a clear distinction between rape and consensual sex. [1] Also, it is the duty of the court to very carefully examine whether the accused had actually wanted to marry the victim or had mala fide intentions [2]. If the accused had made a false promise to marry, it will fall within the ambit of cheating or deception [3]. Also, there is a difference between mere breach of marriage or not fulfilling a false promise [4]. It was further examined whether the consent involved was given after wholly understanding the nature and consequences of the sexual act [5]. When there is ‘promise to marry’ in question the courts have had two faces of judgments. Firstly, consent obtained by false promise of marriage is an invalid consent and it will further amount to rape [6]. Secondly, a promise to future marriage is not really the misconception of fact and a man can change his mind whenever he wants to[7]. Based on these two faces, the conclusion drawn by the court in various cases is the intention of the man who thus promises to marry which is to be considered. [8] If it is proved that the man had no intention to marry since the very beginning, it will amount to rape. [9] However if the man had the intention to marry, but failed to marry the girl due to some reason, some circumstances or a change of mind, it will not amount to rape [10].

Conclusion:
Henceforth it is very clear from the above article that there is still no certainty that sex with a false promise to marriage would amount to rape. The fact that whether sex with a false promise to marriage amounts to rape would depend upon the circumstances and determined by the court upon the circumstances prevalent. The researcher is of the conclusion that the law regarding the same should have a little certainty as such cases are immense.

_______________________________________
1. Deepak Gulati Vs. State of Haryana; Criminal Appeal No: 2332 of 2010
2. Uday Vs. State of Karnataka; Criminal Appeal No: 336 of 1996.
3. Arjun Gupta Vs. State of Jharkhand; Criminal Appeal No: 1116 of 2013.
4. Mir Wali Mohammed Kalu Vs. State of Bihar; Cr. Misc. No.: 3128 of 1984.
5. Abhoy Pradhan Vs. State of West Bengal; Criminal Appeal No: 351 of 1998.
6. Anjinappa Vs. State of Karnataka; Criminal Appeal No: 1833 of 2006.
7. Md. Jakir Ali Vs. The State of Assam; 2007CriLJ1615.
8. Sujit Ranjan Vs. State; Criminal Appeal No: 248 of 2010.
9. Bipul Medhi Vs. State of Assam; 2008CriLJ1099.
10. Sujit Ranjan Vs. State; Criminal Appeal No: 249 of 2010.
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Wednesday, 2 August 2017

Anshul Parsai

Adultery laws in India: Whether Biased Against Women Or Men

Adultery Laws In India

Commonly called as 'Cheating', Adultery is an act where a married person gets involved in sexual relations with someone else than his wife. Extra marital affairs are not new to our society, even the Puranas have described cases like that of Indra and Ahalya, which led to the lady turning into a sculpture. The act has been considered as immoral and sinuous since ages.The Vishnu Puran (3.11) says that 'A man should not think incontinently of another's wife, much less address her to that end; for such a man will be reborn in a future life as a creeping insect. He who commits adultery is punished both here and hereafter; for his days in this world are cut short, and when dead he falls into hell'. Other scriptures of different religions such as Buddhism, Taoism, Christianity etc. also describe the act of adultery as immoral.

Adultery Laws In India

In the earlier times, women were treated as the greater sinner in cases of adultery, and higher the class of the women higher was the degree of the crime. Not, much has changed in the Indian society since, but the fact that we now have laws. Section 497 of the Indian Penal Code defines adultery as 'Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery'. Also, Section 13 (1) (i) of the Hindu Marriage Act, 1955 describes adultery as “Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.”

This might be one of the rare instances where the Religious Law makes more sense than the secular one. Criminalizing adultery is one thing, but being gender biased about it is another. Our penal code makes it very clear that in a case of an extra marital affair, it is ONLY the man who is responsible and should be punished.

Let's Read the statute line by line. It starts with " Whoever has sexual intercourse with a person who is and he knows or has the reason to believe...." All okay till here but as you jump to the next line, "...to be the wife of another man without the consent or connivance of that man.." in the next few words the statute prescribes a jail time which can extend to 5 years and/or fine for the man involved in the affair.


Adultery Laws in India

There are many statutes which seem unjust whether on the grounds of gender, caste, religion etc. but in the end, there always is a scope of a just interpretation on ad hoc basis by the judiciary. Although in this case, the statute ends with the words "In such cases, the wife shall not be punishable as an abettor ". That's where the statute totally eradicates any scope of a just interpretation.

There has been a great discussion with regard to the law not being gender neutral. The Malimath Committee, back in 2003, in its report regarding 'Reforms in Criminal Justice System', suggested to the union government about the required ingredient of gender equality in the statute, but no suggestion has been implemented till date.

A man can, although, move the court for a divorce petition on the ground of adultery by his wife and according to section 125 (4) of the CrPC a man need not pay monthly allowance, otherwise required, to his wife living in adultery.



Conclusion:

We've overcome the medieval times when the woman in an extra marital affair was considered as the prime sinner, but how far have we come? The adultery law makes it clear that a married man is to be punished with a half-a-decade sentence for committing adultery but a woman, on the other hand, may have as many extra marital affairs as she likes. With the society moving towards the direction of gender equality this law has a clear-cut gender biasedness. This also shows the objective approach of the laws towards women. An approach which thinks that it's the men who rule the world and make use of women. This law makes the women superior and inferior at the same time. With the number of cases increasing day by day, there's a strong need for amending these laws towards gender equality, that's the best way the government can contribute in fighting those who use the law as a weapon for their own benefit.
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Sunday, 30 July 2017

Durgesh shukla

The Curious case of GST Council and the Indian Federalism



GST Counsil and Indian Federalism


A federal State derives its existence from the Constitution, just as a corporation derives its existence from the grant by which it is created. Hence every power, executive, legislative or judicial, whether it belong to the nation or to the individual States, is subordinate to and controlled by the Constitution.[1]


In my previous article on GST [2], I have given an overview of what GST actually is and what are its probable effects on Indian tax regime. In this article I am going to concentrate on how GST will affect the very foundation of Indian Constitution, the federal tax structure. Federal structure in taxation means both the States and the Centre have the power to tax the goods & services that are in their jurisdiction. The GST as will be explained further is enshrined with some provisions that will affect the fiscal autonomy of the States. For understanding the GST effect on federal structure, we have to first understand the GST Council.

GST Council

With One Hundred and First Constitutional Amendment Act, 2016, Article 279(A) was inserted which talks about the GST Council. This council has to be instituted with 60 days after the amendment with the recommendation of the President.[3] The GST Council shall consist of the Union Finance Minister, who will be the Chairperson, and the Union Minister of State in charge of Revenue and Minister in charge of Finance or Taxation or any minister nominated by the State government would constitute the members and the States will choose among themselves one minister who would be the Vice-Chairperson.

Now the problem with GST council is that it is the ultimate authority that will recommend to the States and the Union of the tax to be imposed on the goods & services. It will recommend that States, Centre and even the local bodies about how much taxes, cesses and surcharges would be levied by them. And also it reserve the right to decide the date on which GST be levied on petroleum crude, high speed diesel, motor spirit, natural gas and aviation turbine fuel. While previously up to some extent the States reserved the right to levy surcharges and taxes on petroleum and petroleum related products, but after this measure the States revenue from this sector would be completely wiped out. Also many States used to impose higher taxes on tobacco and tobacco related products, and that constitute a prominent part of their State revenue, but under GST act this subject has been kept under consideration and GST Council will decide later how much tax should be imposed.
As we already know GST is a destination based tax, so the manufacturing States will be allowed to charge additional levy in case of inter-state trade, which have been kept very limited in the present case. Also whatever taxes that are levied in case of inter-state trade will go directly in consolidating fund, no distribution of taxes will be there between the Centre and the States.

Every Decision made during the meeting should be supported by at least 75 percent majority of the weighted votes of the members who are present and voting at the meeting. In “Article 279A” a principle is there which divides the total weighted vote cast between Central Government and State Government :-

(i) The vote of Central Government shall have the weighted of one-third of the total votes

(ii) The votes of State Government shall have the weighted of two third of the total votes, cast in the meeting.

So, if the Centre anyhow manages to get the votes of 6-7 States it can change or introduce a new tax on whatever goods & services it wants to. And also the GST Council will establish a mechanism to adjudicate any dispute between the Govt. Of India and one or more States or between the Govt of India and any States on one side and one or more others States on the other side; or between two or more States.

Now you can understand the relevance of the quotation up above by A.V.Dicey. The GST Council will somehow effect the financial federal structure of India.
______________________________________________________
[1] Law of the Constitution by A.V. Dicey p. 144.
[2]GST: India’s approach to One Nation, One Tax
[3] Art 279(A)(1), Indian Constitution.
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Saturday, 29 July 2017

Abhishek Naharia 007

Ragging as an offence: Prohibition, Prevention and Punishment

"This is the last day of my life…
...neither could I be a good son or a good boy…
…I love you Babuji ”

Understanding Ragging:

The idea of ragging was borrowed long back from the US, where it is known as, Hazing. The idea basically was to pull down freshers, students to shame and make them bow in whatsoever manner may deem fit to them. In early times, it used to be treated as a form of general social interaction between seniors and juniors in Schools and Colleges. However, with a period of time, this has come out to be brutal and barbaric in nature causing social, physical, and physiological damages to the victim. Nowadays even the most prestigious institutions have a terrible history of such activities. This not only defames the kind of Education System where we study but also the kind of values our parents inculcate in us. Many of us among the common masses are of the view that Ragging is an annual tradition to be celebrated every year when a group of members arrive at a place completely unknown to them. It thus becomes the responsibility of the seniors to handle their juniors with utter care and make them feel like home at the college. Ragging basically starts when a senior loses his self-control over small petty issues and then continues to occur during a month and so onwards. It is not only a violation of basic human rights of the child being victimized but also the violation of the moral rights of the victim. In simple words, ragging is just a misdemeanor caused to the innocent students whether in written or spoken form. Be it manhandling students rudely or indulging in rowdy actions with them, any fear or apprehension of the sort that causes annoyance and hardship in the mind of the victim are Ragging. Moreover, asking students for help in activities not meant to be done by them, bullying them in a manner as such causing embarrassment to them are included in the ambit of Ragging. It basically is a manner to show off the unnecessary unwanted power for pleasure as well as acting Superior to overpower them.

Ragging As An Offence:

There have been many States which have adopted a very strict approach towards Ragging. States such as Andhra Pradesh, Maharashtra, Karnataka, Tamil Nadu, Tripura, Kerala, West Bengal, Jammu and Kashmir and Union Territories such as Goa, Chandigarh have adopted strict approaches. Central Legislations such as the Indian Penal Code, UGC Regulations on Curbing the Menace of Ragging in Higher Educational Institutions, 2009 and other Institute specific regulations have been enacted for curbing Ragging.

In the year 1997, Tamil Nadu firstly passed laws relating to Tamil Nadu. It was carried on by Andhra Pradesh, Maharashtra in the following years. In 2006, Dr R.K. Raghavan Committee was formed for curbing the menace. The committee was recommended to be formed by the Ministry of HRD to suggest measures to control ragging. Dr Raghavan was the former Director of CBI at the time pf the formation of the committee. Subsequent to that, on May 2007 the committee submitted its report to the Hon’ble Supreme Court, which also included the proposal to include Ragging as a special section of IPC.

The legal battle for Ragging then continued with Vishwa Jagriti Mission case[1] coming at the first place, wherein the Hon’ble Court had held that merely by making Ragging a cognizable offence thus issue cannot be curbed and that the students go to Colleges and Universities not for being reported to Police. Therefore, it is not only the fear of the students to get arrested by the Police that may reduce these incidences, but the faith of the authorities must be maintained in the Universities concerned and that the responsibility be fixed in the Professors and Administrators of the College to ensure that no such incidence occurs at any incidence of time. Another relevant judgement passed by the Hon’ble Supreme Court was in the year 2007, The University of Kerala v Council Principals, Colleges Kerala & Ors.[2]

Every subsequent there are about ten to twenty killings that are reported across India, and the figure just counts to those ones being Counted, the uncountable ones are just not in reach to the Authorities. Therefore, under 10-13 Sections of the Indian Penal Code, varying from Section 294 to Section 506, under Obscene acts and acts, Punishment for voluntarily causing hurt, voluntarily causing hurt by dangerous weapon or means, punishment for voluntarily causing grievous hurt, voluntarily causing grievous hurt by dangerous weapon, Wrongful Restraint, Wrongful Confinement, Punishment for Wrongful Restraint, Punishment for Wrongful Confinement, Punishment for culpable homicide not amounting to Murder.

The Consequences of Ragging are as bad as they could be thought of, including cancellation of admission, suspension from attending classes, withdrawing scholarship and other benefits, debarring from appearing in exam evaluation process, withholding results, debarring the student from representing in any national, international or youth festival, suspension from Hostel, restriction from institution for a period of 1-4 years, expulsion from an institution and barring from admission in any other institution, fine up to Rs. 25,000 and many others among them.

Conclusion:

Prevention is better than cure. So, it is better for the authorities to discipline and punish the offenders at proper time intervals. Providing the students with Anti-Ragging methods at the very beginning of the Semesters, encouraging the young minds into non-indulgence of such activities. Strict actions such as termination of the course the student is pursuing as well as initiation of proceedings against the accused in the Court of law, if required might be adopted. Alternate ways must be derived out so that healthy interactions arise out. Furthermore, initiatives such as the ongoing Aman movement must be taken and more and more of such affidavits must be filed at the time of admissions itself. Anti-ragging posters, banners, notices depicting the consequences of such acts must be placed at strategic points in the campus to denote the fact is Ragging is highly unacceptable. Formation of Anti-Ragging Committees, making available the free ragging helpline, and allowing complaint boxes to be kept at proper places can also mean to curb the nightmare of juniors. Unfortunately, the traditional practice of familiarizing with the newcomers has led to a create a potent gap between the juniors and seniors. There have been students in the past who have laid down precedents to fight this battle and there are expected to be such heroes in the future. Supervising the efforts of the students as well as concerned authorities at proper time intervals, and with a collective effort, the boundaries of Ragging can be broken apart very soon.
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[1] Vishwa Jagriti Mission v Central Government, W.P. No. (C) 656 of 1998.
[2] University of Kerala v Council, Principals Colleges Kerala &  Ors., SLP (C) N. 24295 of 2004.




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Tuesday, 25 July 2017

Anshul Parsai

Prostitution- Legal or illegal in India- Final Conclusion

Prostitution-Lawji
Sex Work, or as it is usually called Prostitution, is looked upon as an immoral profession in our country and even the word 'prostitute' is often used as an abusive adjective.

The practice of prostitution is as old as anything else in our society. Since ancient times, there has been some or the other similar practice where women had intercourses in exchange of money. From Gods to Emporers, prostitution has been common in reigns of all. With 'Kamasutra' explaining about the practice, Kautilya's Arth-Shastra also provides for details and tips for managing the conducts of a prostitute. But the 'modern' society in a way or another does disrespect the profession.

From the 'Devadasi system' to 'Prostitutes', our society has traveled a lot within the cosmos of ideas and opinions. With the practice never getting put to hold, society has turned away from accepting the oldest profession in the world as morally right.

It's kind of absurd when a society whose ancestors worshiped sex, has norms which don't even allow talking about it in public.

But, is prostitution illegal in India? most of you would say yes. But what if I say...

Lawji-Prostitution-Legal or illegal

Yes, prostitution in India is not illegal but is partly illegal instead.
Article 19(g) of the Indian Constitution provides a right to practice any profession to the citizens of the country. And the rights and duties of the workers or professionals are governed by the Labour Laws, which give them rights to association etc. But wait, is prostitution governed by those laws as well? I'd say No. The main statute dealing with prostitution is 'The Immoral Traffic Suppression Act' 1956, commonly called as SITA, and its amended version 'The Immoral Traffic Prevention Act' 1986 (PITA). Let's have a look what they say.

With regard to meaning of 'Prostitution' (although we're aware of an adequately proper definition of the word), the statute (PITA) says - 'the sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind, and the expression “prostitute” shall be construed accordingly'. According to Section 7 of the act, it is illegal to carry out the profession of prostitution with the distance of 200 meters of any public place like a place of worship, educational institutions, hospitals or hotels (Yes! hotels too). Thus prostitution is legal as long as it is 200m away from the public and is done privately. Even though the act remains legit, there are certain things around the main business which are illegal and punishable, interestingly, depending on the earnings from prostitution is punishable. Section 4 of PITA says that any major (18+), who wholly or partly depends on the earnings of a sex worker may be awarded an imprisonment of a couple of years or a fine of a thousand bucks or both, there's a debate going on regarding this provision. In the cases of child prostitution, the jail time is 7-10 years. Persuading, inducing or procuring someone for the sake of prostitution, as per section 5, is punishable with a term of 3-7 years and may extend to a period of a lifetime in case of child prostitution. Also, a prostitute is not allowed to seduce or solicit anyone and call girls are not supposed to publish their contact numbers or advertisements in public.

Thus there are several rules which make some of the stuff around the 'immoral' profession unlawful or punishable.
Just like any other Indian Law, the laws regarding prostitution are also gender biased (well, kind of). The Indian law doesn't recognize 'Male' Prostitution yet. Also, any adult male living with a prostitute is PRESUMED to be guilty of living on the earnings of the prostitute like a pimp. After many cases, I think male prostitution too, requires some attention.

The government, as per section 21 of PITA, can establish 'protective homes' for people who are victims of this line of 'work' and are in need of care and protection. Heard of them?

Conclusion:
So, prostitution or Sex Work is not illegal in India but has several limitations associated with it. And, any reasonable person would understand that the laws are not up to the mark. The government has not been doing much with respect to the crimes associated with the profession. But along with good laws what we need the most is - Awareness. Awareness of all sorts, awareness about the laws, awareness about the rights, awareness about STDs and condoms, awareness about the help provided by the government. Prostitution is very old profession in the world, thus couldn't be wrong, but individuals being forced into it is a matter of serious concern and need to be addressed.
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