Tag: law

Hamara Samvidhan – Hamara Samman Campaign

The third regional event of the ‘Hamara Samvidhan Hamara Samman’ campaign is being organised to commemorate 75th anniversary of the adoption of the Indian Constitution and India’s establishment as a Republic whichwas successfully held today at IIT Guwahati from 4:30 PM to 5:30 PM. In the series of regional events as a part of a year-long nationwide campaign, this third regional event was organized under the aegis of the Designing Innovative Solutions for Holistic Access to Justice (DISHA) scheme[1], implemented by the Department of Justice, Ministry of Law and Justice, Government of India.

The event was graced by Shri Arjun Ram Meghwal, the Minister of State for Law and Justice (Independent Charge) and Minister of State for Parliamentary Affairs, who delivered the keynote address. Hon’ble Minister emphasized the importance of Constitutional awareness and legal empowerment. Shri Justice Vijay Bishnoi, the Hon’ble Chief Justice of the High Court of Gauhati, attended the event as the Guest of Honour. Hon’ble Justice Shri Lanusungkum Jamir attended the program as an esteemed guest and shared the dais.

The event began with a significant and symbolic gesture of planting of saplings to honor the 15 women members of the Constituent Assembly, who played a crucial role in the creation of India’s Constitution. This tribute under the campaign of ‘Ek Ped Maa Ke Nam’ was an attempt to highlightthe pivotal yet often overlooked role of women in shaping the country’s democratic foundation.

Welcoming the dignitaries on the dais and the audience, Secretary (Justice) DoJ, shared the various elements of the Hamara Samvidhan Hamara Samman Campaign and the releasesof three products which were launched during the event namely Samvidhan Katta, Comic Book and Podcasts.

The Samvidhan Katta magazine, which showcases 75 stories that illustrate the impact of the Indian Constitution in everyday life. These stories, shared by stakeholders and field functionaries from the Tele Law and Nyaya Bandhu programs, provided insightful perspectives on how the Constitution continues to safeguard the rights of Indian citizens.

A Comic Bookwas unveiled during the event, featuring the real-life stories of 10 beneficiaries who have used the Tele Law and Nyaya Bandhu programs to protect their Constitutional rights. Presented in an engaging comic format, the book aims to make legal rights more accessible and relatable to the general public.

In addition, eight podcasts were released, focusing on the role of the Tele Law and Nyaya Bandhu programs in helping citizens safeguard their rights. These podcasts, aimed at reaching a broader audience, provide practical insights into the significance of the Constitution and how it can be used to defend legal rights.

Highlighting the significance of the Hamara Samvidhan Hamara Samman campaign, Guest of Honor, Hon’ble Chief Justice of Gauhati High Court, Shri Vijay Bishnoi reflected he Constitution of India, as the fundamental law of the land, embodies the values, principles, and governance framework of our country. All the organs of the State owe their origin and derive their authority from the Constitution and discharge their respective functions within its framework. The Constitution of India is the supreme legal authority which binds the legislative, executive, and judicial organs of our country, and guides the State’s functioning, while ensuring citizen’s rights and responsibilities. He further mentioned that this awareness is necessary so that all of us, irrespective of our social, political, Ideological, religious, linguistic and economic differences, can lead dignified life in a just society.

Addressing the audience Hon’ble Minister reflected that the Constitution of India protects the citizens of India.  Hon’ble Minister mentioned that the planting of sapling is a special tribute in honor of 15 women members of the Constituent Assembly. These remarkable women, who worked tirelessly and selflessly, have often remained unsung heroes in the narrative of India’s democratic journey.  Hon’ble Minister mentioned that as we planted these saplings, we symbolize not only the deep roots of our Constitution but also the growth of values such as justice, equality, and freedom, which continue to nurture our society today. He also mentions about the drafting Committee member who belonged from Assam,Syed Muhammad Saadulla was the only member from Assam to serve on the Drafting Committee of the Constitution of India. He also mentions about the female member of the Constituent assembly which was Late Smt. Leela Roy. Hon’ble Minister made the participants aware about the contributors in the making of the Constitution. The purpose behind organizing third regional event in Assam was to remember the contributions made by the people of Assam in the making of the Constitution as it’s the 75th year of its adoption.He paid tribute to Dr. B.R. Ambedkar to his contribution in the making of the Constitution of  India. He also elaborated His last speech before the adoption of the Constitution. He further mentioned about the importance of Ashoka chakra in our National Flag where 24 spokes which have its own relevance and importance to the daily lives of the citizens. Furthermore, he elaborated on the core values of the Constitution, with a particular focus on equality, liberty and fraternity and encouraged attendees to remain aware of their rights and perform their respective duties as citizens by elaborating an example from daily life.

Dignitaries were presented with special mementoin the form of Preamble of the constitution of India.Shri Niraj Kumar Gayagi, Joint Secretary, Department of Justice.Presented a vote of thanks at the end of the event.

Approximately 1400 participants attended the event, including Hon’ble Judges of the Gauhati High Court, officials from the High Court Registry, officials from the Assam State Legal Services Authority, advocates from the Guwahati Bar Association, judicial officers, Village-Level Entrepreneurs (VLEs) from the Common Service Centers (CSCs), students and faculty from National Law University, Guwahati, and senior officials from IIT Guwahati, along with Central and State government representatives. In addition, several stakeholders of the Department of Justice joined the event virtually, contributing to the event’s outreach and inclusivity.

The ‘Hamara Samvidhan Hamara Samman’ campaign, which was officially launched by the Hon’ble Vice President of India on 24th January 2024 at the Dr. B.R. Ambedkar International Centre in New Delhi, has aimed to promote the understanding of the Indian Constitution and raise awareness about legal rights among citizens. As part of its efforts, regional events have been organized across the country, with Bikaner and Prayagraj already hosting successful events in the past year. The Guwahati event marks a significant step in furthering the campaign’s goals, reaching diverse communities in the Northeast.

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Seat belt to be mandatory for all passengers in car.

Passengers sitting in the rear seat of a car and not wearing seatbelts might also be fined soon, said Union Transport Minister Nitin Gadkari. In an exclusive interview, Gadkari said that although it was mandatory for rear-seat passengers to wear a seatbelt, people have not been following the same. Henceforth, they would be fined because at “any cost, lives have to be saved”. However, he emphasised that fining people was not the goal, but cutting down of road accidents by 50 per cent by 2024 was the aim. 

Although a fine of Rs 1,000 is already in place under Article 138 (3) of the Central Motor Vehicle Rules (CMVR), the problem seems to be more about user behaviour and enforcing the regulations. Most people in India overlook belting up in the rear seats of a car, often assuming they are in a much safer place since there is no dashboard or steering wheel right in front of them. 

The road transport and highways minister further said he was trying to work with the states to find ways to reduce accidents on National Highways as law and order comes under the state governments.

The government has asked online retail giant Amazon to stop selling devices designed to disable car seatbelt alarms, transport minister Nitin Gadkari told Reuters, citing potential safety risks. Apart from this, the Ministry of Road Transport and Highways has also written to the consumer affairs ministry to ask e-commerce companies to stop selling devices designed to disable car seat belt alarms, news agency PTI has reported citing a senior government official.

Misuse of Section 375 .

Credit- iPleaders

Section 375 of the Indian Criminal Code was created to protect women from rape. In Indian criminal law, in section 375 Men are said to commited rape if he :
(a) pierce the penis in some way or force a “rape” on a woman’s vagina, mouth, urethra, or anus.
(b) in some way insert an object or body part other than the penis into the woman’s vagina, urethra, or anus, or have the woman do so to him or others.
(c) manipulate any part of a woman’s body to penetrate or penetrate the woman’s vagina, urethra, anus, or other parts of her body.
(d) place the mouth in the woman’s vagina, anus, urethra.

Under Section 370 , If a person rape woman and do so in any of the following seven situations.
1) Against to their will. 2) Without their consent. 3)With consent and consent for fear of death or injury to them or those they are close to.
4) Consent is given because a man knows he is not her husband and believes that he is another man who is married, or that he is legally married. If so, with her consent
5) If she is under the age of 18, with or without her consent.

Abuse of power
One of the famous sayings used in connection with Section 375 is “Men are guilty until proved innocent, and women are not guilty until proved innocent.”
Laws enacted to empower women and reassure them in patriarchal societies soon turned into swords that killed the dignity of men in society by false accusations, or women misused laws and power made to protect them. The problem that is occurring in our world today is that women use verbal consent to have sexual intercourse and later refuse or refrain from having sexual intercourse or falsely accuse men that they had it without thier consent. In both cases, the man has the responsibility of proof and must prove his innocence.

According to an article published in The Times of India , only one person was convicted in each of the fourth cases of rape, and high probability that anyone who did not proven guilty after a full trial could be innocent. Leads to the high assumption that innocent people have been accused of rape. India’s conviction ratebin rape cases is 32%, which is self-evident from the fact that numerous false reports related to rape have been registered in India.

Being a victim of false rape allegations is as bad as being a victim of rape. You can’t imagine the shock, trauma, ridicule, and humiliation that someone experienced after being falsely accused of rape. Not only the man, but his family and close friends suffer from various consequences, and isolation and ridicule are just a few of them. Their future is shattered, the humiliation and shame that society suffers is enough to shatter it, and no one can think of them living as they used to.

What can be done ?
The creators of Article 375 of the 2013 Act and the Criminal (Amendment) having only one vision in context to the problem, consider only the safety of women and have not developed any means of protecting innocent men in society. Therefore, there is usually a debate about what we can do to protect innocent people from society who are falsely accused. Provision (Section 375) cannot be said to be gender-neutral to remove the slight justice that this section offers, as it acts as a hurdle for women to file genuine rape cases.
Then the question arises. What can you do? In such situations, the legislature and judiciary need to work together to strike the right balance between men and women so that the virtues of justice are provided to them equally.

Animal Cruelty is a heinous crime which should be stop .

Animal Cruelty :
Simply put, animal cruelty harms animals, whether intentional or negligent. While certain activities  such as animal cruelty are generally perceived as cruel, the specific actions that make up animal cruelty vary from person to person and from places to places or different countries. Many  argue that docking a piglet’s tail without anesthesia is cruel, while others say it is common in meat production to prevent injuries later  in the pig’s life.  Animal cruelty defination is different in different areas due to countries laws.
Animal abuse is an pervasive problem which often  is difficult to detect. No species or community is spared from experiencing animal cruelty and neglect. Understanding what animal cruelty means and what it doesn’t mean is one of the first steps to  prevent it from happening again. Animals, whether it’s the food, cosmetics, entertainment, or  pet industry, don’t deserve to suffer.

Is Animal Cruelty Illegal:
The legality of  animal cruelty depends largely  on where the activity takes place . For example,  cruelty to farms and laboratory animals that is illegal in some countries may not be considered banned animal cruelty in some countries, due to differences in national law. In the United States, the best-known legislation to prevent animal cruelty excludes both livestock and laboratory animals from registration.

Animal cruelty in India:
Recently, cases of animal cruelty are increasing in India. The same began to discuss animal rights and the extent of legal protection that  current law provides to animals. The problem is that most of these crimes are either unreported or face disappointing legal responses, as some of the 1960 Animal Cruelty Prevention  Act  and  the Indian Criminal Code are obsolete.
SS Rithika an social activist in context to animal writes about common scenarios of animal cruelty and current laws, procedures, and court decisions dealing with animal cruelty in India. Rithika is also pushing for amendments to these laws to curb the rise in atrocities against animals.

Law related to animal cruelty in India:
The Animal Cruelty Prevention Act of  1960 was amended in 1982. Under India’s newly amended 2011 Animal Welfare Act, animal abuse is a criminal offense  with a fine of at least 10,000 rupees, a fine of up to 25,000 rupees for the first violation, or upto two years of imprisonment. For the second and subsequent violations, a fine of 50,000 rupees or more  and imprisonment of 1 year or more upto 3 years or less. This amendment is currently awaiting approval by the Government of India.  The 1962 law is the law currently in force. The maximum fine under the 1962 Act is  50 rupees (less than $ 1). Many organizations, including  local SPCA, PF, A, Fosterdopt, etc., are actively involved in reporting cases of atrocities to police and assisting the general public in bringing perpetrators to justice. For this reason, there are many changes in the subcontinent.
Under IPC sections 428 and 429, causing mischief by killing or amputating an animal worth more than 10 rupees  is a recognizable crime punishable by two years’ imprisonment, a fine, or both.

Some of the campaign toward animal cruelty:#NoMore50 , #RespectForAnimals , #FarmedAnimals etc.

What a filibuster is.

Traditionally, the Senate filibuster was reserved for only the most controversial issues, but its use has escalated in recent years, often slowing business in the chamber to a halt. Some lawmakers acknowledge that the filibuster, which has effectively set a 60-vote super­majority requirement for passing legis­la­tion in the Senate, could doom many of the propos­als they have cham­pioned, including meaningful reforms on issues ranging from health care to climate change to gun control. Behind this dysfunc­tion, the filibuster also has a troubling legacy: it has often been used to block civil rights legislation intended to combat racial discrimination.

As advocates push for pro-democracy legislation, calls for eliminating the filibuster have grown louder. In his remarks at the funeral of civil rights hero and congressman John Lewis in July 2020, former President Barack Obama called the filibuster a “Jim Crow relic,” arguing that the procedure should be eliminated if it is used to block voting reforms. Others note that certain types of legislation are already exempt from the fili­buster’s super­majority require­ment and argue that a similar exemp­tion should be made for voting rights.The stakes were raised in March 2021, when the For the People Act — a comprehensive democracy reform bill — was passed by the House of Representatives and introduced in the Senate, where the filibuster may determine its fate. Whether through elimination or reform, the filibuster cannot be allowed to impede the expansion of Ameican democracy or the rights of all eligible voters.

What is the filibuster?

The filibuster is a 19th-century procedural rule in the Senate that allows any one senator to block or delay action on a bill or other matter by extending debate. While a final vote in the Senate requires a simple majority of 51 votes, a supermajority, or 60 votes, is needed to start or end debate on legislation so it can proceed to a final vote. Therefore, even if a party has a slim majority in the Senate, it still needs a supermajority to even move forward with legislation a tall task for a hyper-partisan Washington. The House of Representatives does not use the filibuster. Instead, a simple majority can end debate.

How can the filibuster rule be changed?

Senators have carved out exceptions to the filibuster rule before.One option to do so is called “going nuclear” — when senators override an existing rule, such as the number of votes needed to end debate. This is usually done by lowering the threshold needed to end a filibuster to 50 votes.In 2017, then-Senate Majority Leader Mitch McConnell, R-Ky., eliminated the filibuster for Supreme Court nominees, clearing the way for then-President Donald Trump’s first nominee to be confirmed.

Why a call for change now?

In the last 50 years, the filibuster has been used more and more to kill major legislation. And with Biden’s agenda stalled, Democrats are calling for a carve out to pass voting rights legislation. In the last year, at least 19 states passed 34 laws restricting access to voting, according to the Brennan Center for Justice. If the threshold to end debate on a bill is lowered to 50 votes, for instance, Democrats could end debate on their voting reform bill and eventually move to a final vote, with Vice President Kamala Harris serving as a tie-breaking vote in the 50-50 Senate to pass the legislation. Incidentally, Harris, as president of the Senate, would play a key role in any potential rules change. She would be expected to occupy the chair and preside over any rule change action.

What’s the differ­ence between “talking” and “silent” fili­busters?

Filibusters traditionally involved long speeches in which a senator attempted to block a vote from proceeding by refusing to yield the floor. To stage such a “talking” fili­buster, a senator would hold the floor by stand­ing and talking for as long as they could, sometimes overnight. This was popularized in the 1939 film Mr. Smith Goes to Wash­ing­ton. The longest filibuster ever recor­ded, by South Caro­lina Sen. Strom Thur­mond in opposition to the Civil Rights Act of 1957, lasted for more than 24 hours. But since the early 1970s, senators have been able to use a “silent” filibuster. Anytime a group of 41 or more senators simply threatens a filibuster, the Senate majority leader can refuse to call a vote.

How has the fili­buster changed over time?

The use of the filibuster, once reserved for only the most controversial issues, has increased dramat­ic­ally in recent years along­side grow­ing polar­iz­a­tion in Wash­ing­ton. There have been more than 2,000 fili­busters since 1917; about half have been in just the last 12 years. Crit­ics argue that this increased use has slowed busi­ness in the Senate to a halt, often entangling the cham­ber in proced­ural maneuv­er­ing instead of substant­ive debate and, ulti­mately, lawmak­ing.

What a filibuster is.

Traditionally, the Senate filibuster was reserved for only the most controversial issues, but its use has escalated in recent years, often slowing business in the chamber to a halt. Some lawmakers acknowledge that the filibuster, which has effectively set a 60-vote super­majority requirement for passing legis­la­tion in the Senate, could doom many of the propos­als they have cham­pioned, including meaningful reforms on issues ranging from health care to climate change to gun control. Behind this dysfunc­tion, the filibuster also has a troubling legacy: it has often been used to block civil rights legislation intended to combat racial discrimination.

As advocates push for pro-democracy legislation, calls for eliminating the filibuster have grown louder. In his remarks at the funeral of civil rights hero and congressman John Lewis in July 2020, former President Barack Obama called the filibuster a “Jim Crow relic,” arguing that the procedure should be eliminated if it is used to block voting reforms. Others note that certain types of legislation are already exempt from the fili­buster’s super­majority require­ment and argue that a similar exemp­tion should be made for voting rights.The stakes were raised in March 2021, when the For the People Act — a comprehensive democracy reform bill — was passed by the House of Representatives and introduced in the Senate, where the filibuster may determine its fate. Whether through elimination or reform, the filibuster cannot be allowed to impede the expansion of Ameican democracy or the rights of all eligible voters.

What is the filibuster?

The filibuster is a 19th-century procedural rule in the Senate that allows any one senator to block or delay action on a bill or other matter by extending debate. While a final vote in the Senate requires a simple majority of 51 votes, a supermajority, or 60 votes, is needed to start or end debate on legislation so it can proceed to a final vote. Therefore, even if a party has a slim majority in the Senate, it still needs a supermajority to even move forward with legislation a tall task for a hyper-partisan Washington. The House of Representatives does not use the filibuster. Instead, a simple majority can end debate.

How can the filibuster rule be changed?

Senators have carved out exceptions to the filibuster rule before.One option to do so is called “going nuclear” — when senators override an existing rule, such as the number of votes needed to end debate. This is usually done by lowering the threshold needed to end a filibuster to 50 votes.In 2017, then-Senate Majority Leader Mitch McConnell, R-Ky., eliminated the filibuster for Supreme Court nominees, clearing the way for then-President Donald Trump’s first nominee to be confirmed.

Why a call for change now?

In the last 50 years, the filibuster has been used more and more to kill major legislation. And with Biden’s agenda stalled, Democrats are calling for a carve out to pass voting rights legislation. In the last year, at least 19 states passed 34 laws restricting access to voting, according to the Brennan Center for Justice. If the threshold to end debate on a bill is lowered to 50 votes, for instance, Democrats could end debate on their voting reform bill and eventually move to a final vote, with Vice President Kamala Harris serving as a tie-breaking vote in the 50-50 Senate to pass the legislation. Incidentally, Harris, as president of the Senate, would play a key role in any potential rules change. She would be expected to occupy the chair and preside over any rule change action.

What’s the differ­ence between “talking” and “silent” fili­busters?

Filibusters traditionally involved long speeches in which a senator attempted to block a vote from proceeding by refusing to yield the floor. To stage such a “talking” fili­buster, a senator would hold the floor by stand­ing and talking for as long as they could, sometimes overnight. This was popularized in the 1939 film Mr. Smith Goes to Wash­ing­ton. The longest filibuster ever recor­ded, by South Caro­lina Sen. Strom Thur­mond in opposition to the Civil Rights Act of 1957, lasted for more than 24 hours. But since the early 1970s, senators have been able to use a “silent” filibuster. Anytime a group of 41 or more senators simply threatens a filibuster, the Senate majority leader can refuse to call a vote.

How has the fili­buster changed over time?

The use of the filibuster, once reserved for only the most controversial issues, has increased dramat­ic­ally in recent years along­side grow­ing polar­iz­a­tion in Wash­ing­ton. There have been more than 2,000 fili­busters since 1917; about half have been in just the last 12 years. Crit­ics argue that this increased use has slowed busi­ness in the Senate to a halt, often entangling the cham­ber in proced­ural maneuv­er­ing instead of substant­ive debate and, ulti­mately, lawmak­ing.

Sexual Harassment

Sexual harassment include a refers to any sort of sexual behaviour that is unsolicited, overawed, abhorrent, disrespectful and humiliating. It took over decades for people to recognize sexual harassment as a real serious issue. However, it is still overlooked in the rural areas.

It is not just a single form. Any way of unwanted touch, grab or attempt to make physical contract without one’s consent, all are considered as inappropriate behaviour. Even staring and leering, someone asking for sexual favours and display of offensive and rude material by the perpetrator for others to see it also counts in. Another form may include cracking of sexual jokes and comments and making of sexual signs or gestures towards oneself. It is unacceptable for an individual to question oneself about their sexual life or humiliate oneself by absurd sexual remarks. Further, the sexual harassment also counts in indecently exposing of oneself or making salacious phone calls. Any of such form of sexual harassment is against the law.

Such inappropriate behaviour turns out to be much fatal. Sexual harassment leaves a deep impact on oneself. At times, the victims are so much stressed out that they even suffer from depression or anxiety. Apart from these, the victims often suffer by several significant psychological effects such as sleeping disorder, headaches, sexual dysfunction, plunked self esteem and many more. Furthermore, it can also cause them to withdraw from social situations. As a result, the victim starts loosing confidence and pride.

In this world, none deserves to be ill treated or be victim to any form of inappropriate behaviour and this implies to both men and women. Each and every individual has the right to live a life free from bullying, any sort of discrimination or harassment. Therefore, sexual harassment is illegal. As mentioned in Section 354 (A) of the Indian Penal Code-“A man committing any physical contact, advances involving unwelcome and explicit sexual overtures; or demanding or requesting sexual favours; or showing pornography against the will of a woman; or making sexually coloured remarks, shall be guilty of the offence of sexual harassment. It entails a punishment of rigorous imprisonment for a term which may extend to three years.”

It is essential to notice the signs or gestures if oneself feels that someone is harassing them sexually. One of such significant sign is if oneself feels uncomfortable and experience any unwelcomed physical contact. One must keep themselves updated with the policies and procedures against sexual harassment. If anyone unfortunately comes out to be a victim, then that person should try to get external information and acquire advice from people who can help them in filing a lawsuit. Similarily, one must make sure to save any evidence they get which would help them with their complaint. Likewise, one must never deal with it alone, rather try to share it with closed ones to lighten the burden.

To conclude, sexual harassment took a long time to be recognized as a real issue but now ii is no more un acknowledged. Thus, it is necessary to take effective measures against such practice and try to prevent the fatal damage that it causes to the victims. People need to understand that if someone says no it means no. However, if an individual’s no does not have any impact and is continued being subjected to sexual jokes then, its high time to realize that he/she is being sexually harassed. Therefore, it is essential to help out those who are being victim to such harassments and make the perpetrator liable for their repulsive act.

“It’s not consent if you make me afraid to say NO”

-Anonymous

Child Marriage: A Legal View

In the culture of Indian society, the practice of child marriage still subsists. Child marriage refers to a marriage duly performed by minors mainly between a female below the age of 18 years and a male below 21 years. Child marriage is customarily in rural regions where there is increased rate of poverty and illiteracy. Social customs and rites, ignorance, benight and consideration of women as a burden financially, are few factors that causes solemnization of child marriage. Such marriages have their unintended consequences like problems related to health due to pregnancy at early age, deliberately cruel gender inequality cycle and further worsening of women status also happen.

Considering all these factors, the British government in 1929 enacted the Child Marriage Restraint Act. This was the first secular law towards restraining the child marriage peril. The Act only held punishments to those adult males who married minors and the parents who encouraged such marriages but the marriage was not made void. As the punishment and fine was considerably less, the Act was hence amended now and then to increase the limit of age.

Due to the inadequacy of the Child Marriage Restraint Act 1929, a new legislation was enacted namely, Prohibition of Child Marriage Act, 2006. This new Act anticipate in averting child marriage along with intensified punishments such as fine of Rs. 1 lakh or imprisonment for two years. Provisions for the maintenance of the girl child were also implied. In case if the husband is major, he is liable to pay for the maintenance and if the husband is minor, then his family is liable to pay for the same.

The marriage would be void if the child is used for trafficking or any sort of purpose that is immoral. Under the prohibition of Child Marriage Act 2006, the age of a female is 18 years and for male is 21 years. A girl can obtain a degree of nullity within two years before attaining the age of 18 years if entered into a child marriage under the Hindu Marriage Act 1956. The parties though not did consent to the union in child marriage yet they are punishable As for now there is no such provisions for punishing the people or the parents involved in the solemnization of marriage. A girl can declare a marriage invalid if she’s married off before attaining an age of 15 and can challenge it until she is 18. However till now there is no such provision which states child marriage invalid. In India, Muslim law is not codified, thus the scholars interpret provisions of the Quran. Child marriage is not barred under the Muslim law. A guardian has authority to get a child married. Although, there is an option of puberty available to the couple where they can refuse to accept the marriage after attaining puberty following the condition that they should do it before attaining the age of 18 then only the marriage can be said rejected. According to the Muslim law, the age of puberty is 15 years. Nevertheless, the marriage prior the age of 7 is void ab initio. Under the Indian Christian Marriage Act, if a marriage is to be contracted between the minors, a notice preliminary is set to be issued 14 days before marriage. Post the expiration of the 14 days, the parties have the right to go on with the solemnization of marriage without consent of the guardian or parents. Under the Parsi marriage and divorce Act, a child marriage is considered invalid. In India, Jewish law is uncodified. According to the Jewish law, the age of puberty is the marriageable age which is fixed at 12 years.

Child marriage is jeopardy and it cannot be restrained without the support of the society. Under the prohibition of child Marriage Act, several demands have been made to make the child marriage void ab initio but the society is complex as well as complicated and making child marriage void will only prove to be hazardous for the rights of women who are victims of child marriage.

DEATH PENALTY IN INDIA

A number of dynasties have risen and fallen with the course of centuries. But in order to administer justice, the use of death penalty was common. Though the termination of death penalty was protested by many organizations yet it is practiced in different countries. Capital punishment or death sentence has been prescribed as a crime against humanity in the Charter of Rights by the UN and also requested its members to terminate the same. However, India being one of its member has still not abolished the death penalty even though under the Article 21, the Constitution of India has stated that the government has no right to take away an individual’s life. As a result, the international stand of India on the death sentence both at the Human Rights Council and the General Assembly has always been against the resolution that stating that is goes against the country’s law statues where an in the rarest of rare cases, a capital punishment is carried out.

Crimes Punishable by Death Penalty in India:

  • Murder- Murder is regarded as an offence to be punishable under the Article 302. A death sentence can be awarded to a group involved in robbery and in the process even one member commits murder, when an individual is abducted in exchange of ransom and the person gets killed, being engaged in any unlawful association or criminal activities which results in an individual’s death as well as the act of assisting and committing Sati, under all these situations one shall be punished with death penalty.
  • Rape- Under the Criminal Law (Amendment) Act, 2013, a rapist who during the course of crime causes the victim’s death or the victim is left in the vegetative state of persistent shall be held punishable. Capital punishment shall be imposed for rape of girls below 12 years and punishment also includes a minimum imprisonment of 20 years including fine.
  • Offence related to terrorism- Any unlawful act involving the usage of any sort of special category of explosives which is probable of causing imperil to human life or property is considered as an death penalty offence.
  • Abduction- The act of kidnapping is also punishable under law even if the kidnapper only threatens to cause harm to the victim.
  • Treason- The act of attempting to wage or carrying on a war in opposition to the government, soldiers, Army or Navy members or even Air Forces in committing mutiny are liable to be punished under death penalty.

In India, the rate of execution have decreased significantly in the past 20 years. The Article 21 of the Indian Constitution assures its citizens the right to life as well as personal liberty including the right to live with dignity. As stated in the article, no person shall be impoverished of his personal liberty and life except in accordance to the established law procedure. This implies that an individual’s personal liberty and life can only be argued if that individual commits a crime. Therefore, by means of public order and law, the state can curtail or take away the right to life following the law established procedure.

However, in India, a number of NGOs are fighting in opposition to the cruel and inhuman punishment and perseverance of human rights. Although judiciary has evolved the principle of “rarest of rare cases” and has indicated that it is with special reasons that death penalty must be imposed in cases of exceptional and aggravating circumstances where offenses are very grave in nature, the application of the principle itself, as evident from a plethora of cases, is in violation of Constitutional provisions. According to Justice V.R. Iyer who was against the death penalty, God has given us life and thus, He only has the right to take it away. The state has no right to take away any individual’s right to life. This is mere inhumanity from the State’s side. Thus, the death penalty procedure must be prescribed as an offense in opposition to human rights as well as it is unconstitutional. It must be taken into consideration by the government, the negative aspects of sentencing to death and must take steps to delete such provisions relating to death sentence away from the law. Although actual executions of convicts punished with death penalty are decreasing in number, yet a lot has to be done to fasten the procedure for those waiting on death row and also comply with India’s international commitments.

Juvenile Justice System In India

Juvenile offending is the act of participating in some unlawful behavior against the society by the persons young in age. The term Juvenile Justice refers to fair and just treatment to youth or children in shaping their personality in the society. Juvenile Justice System means a procedure to tackle with the issues related to minors with respect to society. The main purpose of the system is to protect the minors by applying effective treatment and creating a positive human developing environment. The main aim of the system is to adopt measures that are rehabilitative in nature instead of being punitive. If any means a young individual commits or minor turns lawbreaker, then the Juvenile courts takes up the duty to foster delicate treatment and care through special institutions. Thus, it would encourage the Juvenile delinquents to find their path to lead a much better and decent life. The system of Juvenile Justice is considered as one of the most enlightening and developing system worldwide, focusing on the children’s growth. The central focus is to provide proper care to the unprotected child and the reformation of deviants.

Earlier there was no separate system for the juveniles. They were held into prison without trials and were even locked behind the bars accompanied by the desensitized criminals. It was prescribed by the penologists in the nineteenth century that punishment should be equal for both juveniles and adults. As per the history records, juveniles were treated similar to the adult criminals and were imprisoned, hanged and even transported.

In India, the Juvenile Justice System (JJS) aroused during the British rule. Prior the rule of the British, the juveniles were treated either by the family or society in general. Gradually, the Indian Constitution provided distinct treatment for children and women. The issue of juvenile lawbreakers were given separate treatment. The light was thrown on the Juvenile Justice System aftermath the Nirbhaya case, 2012 Delhi gang rape and murder when people expressed their hostile nature attitude and sentiments towards the court’s decision. The minor who was involved in the brutal case was demanded for death sentence by the public. There was chaos and roaring in the Indian parliament, as a result of which new law came into existence. The Juvenile Justice Care and Protection of Children 2015, was a provision of comprehensive nature for minors found and reported guilty of conflict with the law. The law also deals with minors in need of protection and care. This was implemented taking into considerations the conventions of the rights of the child along with other related international instruments. The conception that the children are not mature compared to adults and are not aware of the nature and post effects of their acts led to the development of the Juvenile Justice System worldwide. The idea is based on the principle of doli incapax i.e. children are off the capacity to form intentions of criminal nature. Hence, a minor cannot be held liable for any unlawful act. It should be noted that there is no general consensus about the definition of youth and child. In the matter of age or adultery, different statutes have different mandates. The new act is seemingly a progressive one and a policy shift is observed in the legislation of Juvenile Justice. It was mainly designed to adopt the parens patriae philosophy and prescribe institutionalized care and protection. Punishment of delinquents in case of serious offence is the only shift observed. The socialization and reformation policy of the young individuals with punishment as an exception is being adopted by the Juvenile Justice System. It can also be distinguished from the general criminal courts as in adopting informal hearing. In the existing Juvenile Justice act of 2015, significant amendments were made last year.

The principle on which Juvenile Justice System is based is rights of the child and welfare of the society. It’s main center of focus is rehabilitation and reformation. The aim is to maintain equality and opportunities available to the minors for their personality development. There should be personality transformation from negative to positive. However, taking into account the former experiences, it is necessary to bridge the broad gap between the practice and theory. In order to do so, we have to build an efficient and good infrastructure Juvenile Justice Administration. The dreams are carried by the new legislation and it is our duty to make those dreams reality.

Should courts declare prostitution legal in India?

In general, the word ‘prostitution’ refers to the situation of women which means in Latin terms ‘expose publicly’. It means for hire, sexual activity by either giving or receiving one’s body. It is common lewdness of women in exchange of some value or gain. It can be considered as a business that exploits an individual’s vulnerability, particularly the women and children and also violates the human rights completely and making them object to transaction of money by use of force and power for the purpose of sex, bondage or labour. In India, prostitution is regarded as one of the oldest profession. In Indian society, prostitution is a problem of serious concern and its solution is seemingly difficult. It is a gender specified phenomenon where mainly the victims are girls and women and the men being the perpetrators. The dispensing chance of prostitution is nil if observed practically, thus it is a still a bitter reality today. The form of existence has altered but the outlook and sight has remain unchanged. One can describe the picture of prostitutes as any sex worker or prostitute found either in remote or public place staring at the public with a smile of welcoming gesture as well as approach.

Globally, consistent stand have been taken criticizing the gross violation of human resources and has encouraged the government to take strict measures against it. It was observed that providing a mandate of legal importance would prompt a safe and better society and environment for women. A platform should be provided to access justice in case of gross violation. The prostitutes or the sex workers should be made aware of their rights, financial aids, interests, health and freedom to deny or choose to take medical check ups on regular basis and other important benefits.

As under the act, prostitution is neither punishable nor illegal. In the context of India, though the Court has marked prostitution to be unethical yet explicitly, it is not illegal. Certain acts such as managing, pimping and owning of bordello, luring or engaging an individual into prostitution, dependence on prostitution as a source of income, trafficking of children and women for the prostitution purpose, etc. are considered illegal under the Immoral Traffic (prevention) Act, 1956 (ITPA). In India, a large number of bordellos are run illegally in some of the major cities like Delhi, Mumbai and Kolkata.

“Every country has made the laws to regulate prostitution so it might remain within its legal limits and without unduly violating upon the institutions of the marriage and family.”

– Law Commission Report of India

The societies in which prostitution is regarded legal have inferred that regulation of the profession is best as it is impossible to be ceased. India should also acquire understanding from such societies and thus take preventive actions. Today, there are millions of prostitutes in India and a quarter of them are believed to be minors, making Child prostitution and increased HIV virus incidences as among the most gruesome issues in India.

Prostitution should be made legal considering the following facts:

  • Medical checkups on regular basis will reduce the spread of STDs- Provision of adequate tools of birth control and conduction of regular medical checkups will result in the reduction of risk of sexual transmitted diseases which would possibly be transmitted from workers to customers and vice-versa. Thus, creating a safe and healthy society.
  • Protection of minors- Today a great number of minors are involved in prostitution. Therefore, by legalizing, the minors can be removed from this profession and their rights can be preserved safely.
  • Removal of middlemen and pimps- The legalization would reduce the criminal conduct and the sex worker’s wages would be increased as there would be no requirement of the middlemen and pimps. this would eventually lead to an upgradation in the industry system.
  • The count of sexual assaults and rapes would be reduced- Considering it as an easy alternative, the people would satisfy their sexual urge by directly resorting to the prostitutes instead of committing any heinous offence.
  • Protection of the rights of sex workers- Any sex worker could file complain and can prevail justice if denied agreed payment or ben a victim to any sexual assault.
  • Right to use body according to free will- Nobody prevails the right to put pressure on any individual to adhere a person’s standard in terms to morality.

Thus, it can be concluded that sex trade is here to stay and it can be ceased by any means, thus by recognizing it as a legitimate form of work would provide guaranteed benefits to the parties involved. The legalization of prostitution would preserve the rights of the sex works along with the job protection and also provide them a chance to live a normal life which they deserve.

Raising Legal Age of Marriage in India

In order to formulate policies for a better equality in gender, the Union Cabinet of India proposed to raise the age of marriage of both men and women. This proposal seemed to be a progressive step. As a result on December 15, the Union Cabinet made the decision to raise the legal marriage age of women to 21 years from 18 years and for men it is 21 years. Thus, making the marriageable age of both men and women equal.

The government is asked to establish and implement the minimum marriage age for women and child marriage is strictly forbidden under Article 16 of the Indian Constitution. The minimum age for marriage is mainly prescribed by the law so as to avert abuse of children and prohibit child marriage. Marriage is dealt by different religions according to their own standards. In Hinduism, under the Hindu Marriage Act, 1955, the minimum age of women is 18 years and men is 21 years for marriage. In the Muslim religion, a minor’s marriage is considered valid if he/she has attained puberty. The minimum marriage age for men and women is also specified as 21 and 18 years under the Prohibition of Child Marriage Act, 2006 and The Special Marriage Act, 1954.

It was decided by the Narendra Modi government to reappraise the marriage age of women for a great number of reasons with gender parity being one among them. Marriage at an early age often leads to instances of early pregnancies which may further effect the level of nutrition in both children and mothers. Thus, effecting the overall mental and physical health. It was also taken into consideration that if the voting age and consensual age to enter into a contract is same for both men and women, then the marriage age should also be made equal. Such changes in the age is believed to bring perceptional changes in the developing society. Such provision would also facilitate women empowerment specially encouraging them to enroll for higher education.

There might be some negative aspects to the law but these are just possibilities. As mentioned by the activists of women’s rights that the laws can be misused by the parents in order to punish the daughters who would have married either by eloping or against their will or domestic abuse. The authority of the parents would consequently increase over the young adults.

However, the law has a long way ahead. The law would ensure objective equality. There should be increased awareness among the women like the young girls should be counseled on pregnancies at an early age and network to enhance their health should be provided. The main focus should on creating awareness in relation to reproductive health and sexual rights of the women and it should be made sure that the girls are not drop out of colleges or school. The issues of equity should be addressed by the government and the unfortunate or disadvantaged women should be encouraged to complete their higher education, good job placement and opportunities should also be provided along with career counselling. It can be observed that the government is making great efforts to prevent any sort of discrimination towards women and trying to maintain equality between genders in every aspect.

LIFTING OF CORPORATE VIEL

When seven or more person in case of public company and two or more person in case of private company forms a company as per provisions of Companies Act, 2013 they are clothed with corporate personality and there association known by the name of the company. However, sometime this veil of corporate personality is used for some dishonest and fraudulent purpose in that case Court will look into reality and remove the corporate veil.
In the following case the courts have lifted the corporate veil-
(1) Prevention of fraud and misconduct: Where the medium of a company has been used for committing fraud or improper conduct, the Courts have lifted the veil and looked at the realities of the situation. Gilford Motor Co. vs. Horne [1933] Ch 935: In this case ‘Horne’ had been employed by the company under an agreement that he shall not solicit the customers of the company or compete with it for a certain period of time after having its employment. After ceasing to be employed by the plaintiff, ‘Horne’ formed a company which carried on a competing business and allotted whole of its shares to his wife and an employee of the company, who were appointed to be its directors. It was held that since the defendant (Horne) in fact controlled the company, its formation was a mere ‘cloak or sham’ to enable him to break his agreement with the plaintiff. Accordingly, an injunction was issued against him and against the company he had formed restraining them from soliciting the plaintiff’s customers.
(2) Company acting as agent: Where the company is in reality an agency or trust for someone else and the corporate facade is used to cover up that agency or trust. Re. FG Films Ltd. (1953) 1 All E.R. 615: FG films wanted Monsoon registered as a British film. It applied to be declared as the ‘maker’ under the Cinematography Films Act 1936-1948. The Board of Trade refused because it was made by the American Film Group Inc. The American company had promised to finance and provide facilities to the UK company for making the film. 90 shares were held by an American director and 10 by a British one. No shares were held by the third director, who was British. The film was made in India. It was held that the film could not be considered British made, even though the company owning the
rights was a UK company.
(3) Protection of public policy: Where the doctrine conflicts with public policy, Courts have lifted the corporation veil for protecting the public policy. Connors vs. Connors Ltd. (1940) 4 All E.R. 179: In this case the principle was applied against the managing directors he made use of his position contrary to public policy. In this case house of Lord determined the character of company as enemy company, since the person who de facto in control of its affairs where resident of Germany, which was at war with England at that time.
(4) Enemy character of company: Court will lift the corporate veil if the company has enemy character. Daimler Co. Ltd. vs. Continental Tyre & Rubber Co. Ltd. AIR 1927 Bombay 371: A Company was incorporated in London for the purpose of selling tyres manufactured in Germany by a German Company. Its majority shareholder and all the directors were Germans. On declaration of war between England and Germany in 1914, it was held that since both the decision making bodies, the Board of Directors and the general body of shareholders were controlled by Germans, the company was a German company and hence, an enemy company. Accordingly, the suit filed by the company to recover a trade debt was dismissed on the ground that such payment would amount to travelling with enemy.

(5) Evasion of taxes: Where the veil has been used for evasion of taxes and duties, the court upheld the piercing of the veil to look at the real transaction. [Re. Dinshaw Maneckjee Petit A.I.R. 1927 Bombay 371]

(6) To protect labour welfare legislation: Where the purpose of company formation was to avoid the welfare legislation, the Court will lift the corporate veil. Where it was found that the sole purpose for the formation of new company was to use it as a device to reduce the amount to be paid by way of bonus to workman the Supreme Court upheld the piercing of the veil to look at the transaction. [Workmen of Associated Rubber Industries Ltd. vs. Associated Rubber Industries Ltd. A.LR. 1986 SC 1]

(7) Use of corporate veil for hiding criminal activities: Where the defendant used the corporate structure as a device to conceal his criminal activities (evasion of customs and excise duties), the Court could lift the corporate veil and treat the assets of the company as the realizable property of the shareholder.

(8) To punish for contempt of Court: [Jyoti Limited vs. Kamwaljit Kaur Bhasin 32 (1987) DLT 198].

History & Law

                                            (Photo: University of Chicago Law School)

“History and
law are two sides of a polished mirror”. As we read it, that is there any
relation of history with the law, then suddenly it strikes our mind that these
two are different subjects because in India students mostly take topics in
relation with the subjects they are studying. But when we think beyond, the
subject we get to know that history and law are interrelated. Laws are
influenced by events in history. The events which have happened before and what
their outcomes were and what things can be changed for the better. In taking
all these points in mind, laws are made. We take a lesson from our history to
make laws.

 History is also
related to law. As we read the incidents in our history, they are somehow
related to the laws which existed at those times. The British laws which are
still followed now from our history are Indian penal code,1860; the transfer of
property act, 1882; the foreigner’s act, 1946; Income tax act, 1961; Indian
evidence act,1872; Indian police act,1861; etc.

 The goods and the
bads all somehow share a relationship with the laws and rules. The movements
which changed the life of many countries also took place because of the heinous
laws in countries like the French revolution, the American civil war, the
National movements in India, and many more. All are related to laws that became
unbearable torture on the victims. One can study the connection between law and
history in comparative law. Comparison of laws of different time scales can be
done. Law is a process that makes the public civilized, abides by norms
that are set by society from time to time. Hence, the law is continuity in
search of humanity and civility.

 Now the question
that arises is: “Which part of history is relevant in today’s time“?
According to my, contemporary history is most important in the present time.
Contemporary history includes the span of historical events starting from 1945.
These events are most relevant to the present time scenario. Many historians
describe the early modern period as the time frame between 1500 and 1800. 
This period mainly follows the late middle-age period. Further, it is marked by
the initial European colonies, the beginning of recognizable nation-states as
well as the rise of strong centralized government.

 Contemporary
history helps in strengthening the cultural identity of a nation. This is
because when we learn about the cultural heritage of our race or religion, we
engulf ourselves in an abundance of information, which often depicts the
decisions our ancestors made or the traditions that have been carried down the
generations. These define who we are and why we exist in our society.

 History well told
is beautiful. Many of the historians who most appeal to the general reading
public, know the importance of dramatic and skillful writing as well as of
accuracy. History is very important because it helps us to understand the
present. If we will listen to what history has to say, we can come to a sound
understanding of the past that will tell us much about the problems we now
face. If we refuse to listen to history, we will find ourselves fabricating a
past that reinforces our understanding of current problems.

 To conclude, George
Mosse once said, “What man is, the only history tells.” History is
interlinked with law. With truly reading, one can have a holistic view of the
idea of the concept. In my view, contemporary history is more relevant in
today’s time. The study of it is still relevant albeit the uncertainty of
today’s world. As the saying goes, “With age comes wisdom“, is a true
reminder of the experience one gains with the passage of times (which is
history).

 

 

 

History & Law

                                            (Photo: University of Chicago Law School)

“History and law are two sides of a polished mirror”. As we read it, that is there any relation of history with the law, then suddenly it strikes our mind that these two are different subjects because in India students mostly take topics in relation with the subjects they are studying. But when we think beyond, the subject we get to know that history and law are interrelated. Laws are influenced by events in history. The events which have happened before and what their outcomes were and what things can be changed for the better. In taking all these points in mind, laws are made. We take a lesson from our history to make laws.

 History is also related to law. As we read the incidents in our history, they are somehow related to the laws which existed at those times. The British laws which are still followed now from our history are Indian penal code,1860; the transfer of property act, 1882; the foreigner’s act, 1946; Income tax act, 1961; Indian evidence act,1872; Indian police act,1861; etc.

 The goods and the bads all somehow share a relationship with the laws and rules. The movements which changed the life of many countries also took place because of the heinous laws in countries like the French revolution, the American civil war, the National movements in India, and many more. All are related to laws that became unbearable torture on the victims. One can study the connection between law and history in comparative law. Comparison of laws of different time scales can be done. Law is a process that makes the public civilized, abides by norms that are set by society from time to time. Hence, the law is continuity in search of humanity and civility.

 Now the question that arises is: “Which part of history is relevant in today’s time“? According to my, contemporary history is most important in the present time. Contemporary history includes the span of historical events starting from 1945. These events are most relevant to the present time scenario. Many historians describe the early modern period as the time frame between 1500 and 1800.  This period mainly follows the late middle-age period. Further, it is marked by the initial European colonies, the beginning of recognizable nation-states as well as the rise of strong centralized government.

 Contemporary history helps in strengthening the cultural identity of a nation. This is because when we learn about the cultural heritage of our race or religion, we engulf ourselves in an abundance of information, which often depicts the decisions our ancestors made or the traditions that have been carried down the generations. These define who we are and why we exist in our society.

 History well told is beautiful. Many of the historians who most appeal to the general reading public, know the importance of dramatic and skillful writing as well as of accuracy. History is very important because it helps us to understand the present. If we will listen to what history has to say, we can come to a sound understanding of the past that will tell us much about the problems we now face. If we refuse to listen to history, we will find ourselves fabricating a past that reinforces our understanding of current problems.

 To conclude, George Mosse once said, “What man is, the only history tells.” History is interlinked with law. With truly reading, one can have a holistic view of the idea of the concept. In my view, contemporary history is more relevant in today’s time. The study of it is still relevant albeit the uncertainty of today’s world. As the saying goes, “With age comes wisdom“, is a true reminder of the experience one gains with the passage of times (which is history).