Tag: law and order

Section 377

In the past, homosexuality was regarded as an offence of criminal nature. However, few years back in 2018, a remarkable judgement was laid, decriminalizing Section 377 of the Indian Penal Code making private homosexual relations legal. This judgement was assumed to be bring benefitable changes in the life of the homosexuals and was believed to contribute in their fight for their right to be a part of the society. Nonetheless, the increasing cases of suicide of homosexuals recently has turned upside down the above believe and the fact of decriminalizing the Section 377 has not brought fruitful effects that was expected as such.

In 1864 initially, Section 377 was introduced by the ruler of British colonial. Section 377 of the IPC states that any homogenous intercourse or sex activities between individuals of same sex are prohibited and illegal under the law. Our Indian government followed this act for a very long time but it was opposed by a great number of people. Many NGOs and foundations also stood in support of the homosexuals and many rallies and campaigns were started to create awareness about gay sex and normalize it in the society.

Prior to the revilement of the Act, the people were afraid to express their real feelings. They considered the fact that they are gay should remain hidden because they thought that if the people come to know about this fact, the society would avoid them making them feel unmotivated, uncomfortable and unaccepted. Such was the reality back then. However, when the ban was raised, many homosexuals came forward and expressed their true feelings. The upliftment made gay sex legal and such people started living a happy confident life and it also encouraged them to make confident choices.

Taking into account the present scenario, many people still consider homosexual intercourse and sex as a taboo. There is a false belief that performing such actions is excessively repulsive and vicious for the society or human race. Although, it has been proven scientifically that its all about changes in the hormones and it’s utterly normal to have affection and love between individuals belonging to same sex. There should be no sense of uneasiness among the people, rather they should support the homosexuals as they are also humans as them and they also have the same emotions and feelings. Love and support are the mere needs of homosexuals to feel accepted by others in the society.

The ban upliftment was the result of the help and support of a number of foundations and NGOs. One such foundation was Naz foundation that focused on putting this act at public notice and tried to make it a significant topic to be noticeable by the court. Many NGOs and foundations came together and joined hands in implementing campaigns to make people familiar about the concept of same sex relationship.

The ban was uplifted by a five-judge bench of constitution headed by chief justice Dipak Mishra. Prior to the revilement of the act, if an individual was caught in this act then he/she was liable to be in atleast a 10 year imprisonment along with fine. It was the outcome of the support of many people and determination of the NGOs and foundations that the ban was raised by a long 185 years period. This encouraged the people to come out of the shadows and live their life confidently and happily. Today, not only in India but in many other countries, the government is open for gay relationships and one can marry an individual of same sex and can even adopt a baby. These things are now no more regarded as taboo because of their constitutional flexibility which is made only for the betterment of the people.

IGNORANTIA JURIS NON EXCUSAT

Ignorantia juris non excusat is maxim of law which in Latin term means ignorance of the law is no excuse. In terms of law, ignorance of fact can be excused but ignorance of law can never be excused. The main motive behind the maxim is that if any accusation of offence is made against an individual, then the person cannot avoid the accountability by claiming that he was not familiar with the law.

In accordance to the maxim, if the law is ignored, it cannot be considered as an excuse to not comply it. If there is lack of facts in a case, one can ignore it but in case of ignorance of law. Every individual must be well acquainted by the laws of the particular inhabitant country and if the individual is unknown to the laws then it cannot be regarded as a cause to not follow it. If an individual is living in a different country, not his inhabitant one, then he is also required to be familiar with the country laws in which he is temporarily living and obey them accordingly. In criminal law, this maxim is often in use. As a warning, this maxim states that if the law is violated by any person then that particular person is liable to be punished irrespective of the fact of whether he knew or was unaware of the particular law and this would be considered as a criminal offence.

In order to avoid the consequences of unlawful actions, ignorance of law cannot be put into application as a protection. The basis logic behind the doctrine of ignorance was that if it was to be considered as an excuse, then a person charged under any criminal offence or issue related to civil suit of law would have successfully been able to escape the liability claiming that he was not aware of the law. If ignorance of law would have been used as defence, then the individual though being completely familiar to the law and its consequences yet could use the maxim effortlessly. The machinery of the enforcement of law would have been immobilized. As the maxim lacks many properties, it is thus a negative fact and evidences cannot be appealed by the court. In such case, a rigorous evaluation of the state of mind of the wrongdoer is required, which in itself is a challenging task to perform. If there is relaxation of the maxim, then it would be pleaded on the part of every accused that the law was unknown to him. Thus, taking into consideration the stated reasons, the claims under the ignorance of law is rejected by the legal authorities.

In India, we have a variety of laws such as contract, family, civil, criminal etc. If any individual ignores any of the following laws, he is held responsible under the law. For example, a wild buffalo is shot by a man in India. The man assumed it to be a domestic buffalo and was unaware of the law of wild protection which states that hunting of wild buffalo is considered illegal in India. Thus, the man is said to be portraying in ignorance of law. Thus, the claim under the ignorance of law is rejected by the legal authorities. Ignorance of law simply means lack of understanding of the general laws which are supposed to be known to everyone not taking into account whether the whole fact is known to him or not. Every individual must be well acquainted by the laws of the particular inhabitant country and if the individual is unknown to the laws than it cannot be regarded as a cause to not follow it. The main motive behind the maxim is that if any accusation of offence is made against an individual, then the person cannot avoid the accountability by claiming that he was not familiar with the law.

For example, a rifle is owned by a woman without license. She is caught by the police as possession of any weapon without license is illegal. She claims her defence by stating that she was unaware of the law. However, she was held liable for the same because it is assumed that every individual of a particular country should be acquainted by the rules of its nation.

Therefore, it can be inferred that from the maxim “ignorantia juris non excusat’ that an individual who disobeys the law shall be held liable irrespective of whether they are familiar to the laws or not. The people are also warned by this maxim. The main principle is the effective judicial administration that is enable by the good in common.

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.

Restoration of Provisions of SC / ST Act

The weak sections of society are often repressed and exploited by society. To control such behavior and actions the government proposes some laws and bills to safeguard the rights of such weaker sections. But these laws are sometimes misused for the satisfaction of personal desires, and such actions need to be regulated.

An amendment bill was passed in March 2018 to restore the provisions of Scheduled castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. According to the National Crime Records Bureau, under the initial provision, the conviction rate remained as low as just 15.4% in 2016. The amendment bill included three new clauses to the existing Act – for the registration of a First Information Report ( FIR ), against any person, a preliminary enquiry shall not be required; no approval would be required for the arrest of the accused under the Act; under this Act, Section 438 of the Code of Criminal Procedure, dealing with anticipatory bail shall not apply, allowing the accused to apply for anticipatory bail; the decision to arrest or not rests in the hands of the investing officer which cannot be taken away. The Supreme Court also issued guidelines to safeguard people against arbitrary arrest by making the arrest possible only after the written permission of the appointing authority for the public servants and Senior Superintendent of Police in the case of private-sector employees. The verdict for the restoration of the SC / ST Bill faced a widespread protest from the Dalits as according to them it dilutes the original nature of the provision. the Supreme Court took this decision considering the interests of the Scheduled Tribes / Scheduled Castes and as well as the arbitrary arrests taking place under the provision. The decision was made in regards –


• It was observed by the Supreme Court that the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was used negatively as a way to blackmail and harass the innocent common citizens as well as the public servants in many cases.
• It was also observed that the Act was misused in many cases just to fulfill personal agendas by registering false complaints.
• The main purpose of the Act which was to break the caste-based boundaries was diluting and rather becoming strong because of the false complaints filed for the satisfaction of personal interests.
• The arbitrary arrest of the accused is tried to be put in control by making arrest possible on the written permission of the appointing authority in case of a public servant and written permission of the Superintendent of Police (SP) in case of a public servant.

The restoration was made keeping in mind the interests and safeguard of the marginalized without hampering the safeguard of the general public. Without going for a preliminary enquiry for a First Information Report (FIR) it ensured safeguard for the marginalized and by controlling the arbitrary arrests of the accused by making the arrest possible only after the written permission of the appointing authority and Superintendent of Police under this Act it safeguarded the general public.