Racism (नस्लवाद)

नस्लवाद को इस विश्वास के रूप में परिभाषित किया जा सकता है कि लोगों की अलग-अलग जातियों में विशिष्ट सांस्कृतिक विशेषताएं होती हैं जो वंशानुगत कारकों द्वारा निर्धारित होती हैं और इसलिए कुछ जातियों को स्वाभाविक रूप से दूसरों से श्रेष्ठ बनाती हैं। यह विचार कि एक जाति में दूसरों की तुलना में स्वाभाविक श्रेष्ठता है, अन्य जातियों और सांस्कृति के सदस्यों के प्रति अपमानजनक व्यवहार पैदा करता है। नस्लवाद, जातिवाद महिलाओं के प्रति भेदभाव की तरह, भेदभाव और पूर्वाग्रह का एक रूप है।

जातिवाद और नस्लवाद एक अतार्किक मान्यता है कि एक विशेष जाति में विशिष्ट सांस्कृतिक लक्षण होते हैं जो आनुवंशिक कारकों के कारण संपन्न होते हैं जो व्यक्तिगत नस्लों को दूसरों से स्वाभाविक रूप से श्रेष्ठ बनाते हैं और उन्हें निम्न जातियों, समुदायों का शोषण करने का अधिकार देते हैं। जब हम खुले तौर पर नस्लवाद का अर्थ बताते हैं, तो हम देख सकते हैं कि ऐसा विचार कितना अकथनीय और अकल्पनीय है। लेकिन, नस्लवाद हमारी चेतना और अवचेतन में इतना गहरा बैठा है कि हम लंबे समय से ऐसे क्रूर आदर्शों के आगे झुक गए हैं।

एक समाज के भीतर सूक्ष्म नस्लवाद के ऐसे उदाहरण बड़े पैमाने पर होते हैं और दूसरों के प्रति लोगों के अक्षम्य व्यवहार को जन्म देते हैं। इस तरह का अनुचित व्यवहार और कार्य मानसिक तनाव, सामाजिक उत्पीड़न और यहां तक कि शारीरिक हमले जैसी चीजें हैं। चूंकि हमने जातिवादी और नस्लवादी टिप्पणियों और गतिविधियों पर ध्यान नहीं दिया है, इसलिए इसे अनुपचारित छोड़ दिया जाता है और विभिन्न पृष्ठभूमि के दो अलग-अलग लोगों के बीच और अधिक विभाजन और क्रोध की ओर जाता है। यह एक कभी न खत्म होने वाला दुष्चक्र है और आज की दुनिया में एक बड़ा संकट है। नस्लवाद लोगों को एक खास तरह से पैदा होने के लिए, एक विशेष त्वचा के रंग के लिए खेद महसूस कराता है। नस्लवाद की कोई वैज्ञानिक व्याख्या नहीं है, और नस्लवादी लोग अन्य मनुष्यों की भावनाओं से पूरी तरह अनभिज्ञ हैं।

कोई भी व्यक्ति काला, सफेद, काला, गोरा या विशेष रूप से कुछ भी नहीं चुन सकता है। भगवान ने हमें बनाया है, और ऐसा कुछ भी नहीं है जो हमें इसके लिए दोषी महसूस कराए। लोगों की सांस्कृतिक पृष्ठभूमि या त्वचा के रंग के कारण उनका मज़ाक उड़ाना हास्यास्पद और अमानवीय है।हम इस बारे में बात करते रहते हैं कि कैसे आधुनिक समाज विविध संस्कृतियों और विविध लोगों को गले लगाता है। हम विश्व शांति जैसी विशाल चीजों को हासिल करने की कोशिश करते हैं, भूख और गरीबी को मिटाते हैं, लेकिन हम ऐसे बदलाव करने के लिए एकजुट होने के लिए तैयार नहीं हैं।

नस्लवाद हमारे समाज की सामाजिक उन्नति के बीच एक बाधा है। ऐसे संकीर्ण विचारों वाले और अनन्य आदर्शों से कुछ महान प्राप्त करना असंभव है। यह एक नाजुक विषय है और लोगों को खुले दिमाग रखने और परिवर्तनों को अपनाने की आवश्यकता है।हमारे समाज में नस्लवाद का उन्मूलन संभव है यदि हम इस तरह के संवेदनशील विषयों के बारे में अधिक खुले हैं और इस तरह के सरल मामलों पर विचार करते हैं। हममें से अधिकांश लोग इस तरह की बाधाओं के बारे में सोचने के लिए बहुत अधिक आत्मकेंद्रित होते हैं। यह इतना सामान्य व्यवहार है कि हम इसके दुष्परिणामों को भूल जाते हैं। यह सही समय है जब हमने बदलाव किया है।

चूंकि नस्लवाद इतना गहरा विश्वास है, इसलिए हमें बदलने के लिए कुछ समय की आवश्यकता होगी। लेकिन अगर हम ठान लें तो कुछ भी हासिल किया जा सकता है। हमें बांटने के लिए नस्लवाद की जरूरत नहीं है। लोगों को इस तथ्य को स्वीकार करना चाहिए कि कुछ भी महत्वपूर्ण हासिल करने के लिए। हमें संकीर्ण सोच को त्यागना होगा। तभी हम विश्व के एक समाज के रूप में आगे बढ़ सकते हैं।

नस्लवाद हमारे समाज के आधुनिकीकरण के बीच एक बाधा है। हमारे समाज में इस तरह के अनुचित व्यवहार के लिए कोई जगह नहीं होने चाहिए।

Must Do activities for College Student

As a college student and a teen you are at the most important entropy peak of your life, because it’s the turning point moment in your life where you can, build the best version of yourself and excel in life.

So for doing that there are lots of ways and methods to do that but the basic things which we can add up in our daily life routine and it will definitely proved to be an asset in your life.

1. Planning The Day.

At this young age we mostly focus on enjoying life and not taking thing’s seriously and we end up wasting lots of time. So have a fixed sleeping routine, plan your Daily work schedule and stick to it. Because this will not only make you productive but also saves lots of time to enjoy, because enjoying is also necessary for healthy and happy life.

2. Daily Exercise or Workout

It is mandatory for everybody to exercise daily, whether its Gyming or doing Yoga thats your choice. Because for working productively you need to be healthy. So, try to sleep early at night and wake up early in the morning, so that you can complete your exercise at morning it will be better, otherwise its your choice but perform your exercises daily.

3. Gain Knowledge, Out of your syllabus.

It means that don’t only stick to the college course material, follow your passion and work on it by taking help of books, articles, journals, online courses, etc. Because it will not only make you happy but also provide you a special recognition in your group.

4. Real Life experiences

Try to gain some real life experiences by others people experiences, they can be your family members or someone unknown to you. Watch various Podcasts, interviews etc. This will help you tremendously in your personal and Professional life both.

5. Be Socially active

Don’t be the book worm always. Divide some time to your activities, be socially active and available to people around you by various social media sites like LinkedIn, Facebook, Instagram, etc. This will help you being connected with others and also let you updated with whats happening in the world amd also let you aware of different opportunities .

6. Be Spiritual

Now with this, I mean that you should believe in the different kinds of energies around you, whatever the from may be that’s your choice and be thankful for what you have in life. Because it will help you in being happy from inside and makes you a humble person, who is free from problems like stress, anxiety in life.

That’s it!, these are the must do things which will help us develp ourselves and a happy environment for society.

Thank You 🙂

ॐ नमः शिवाय

Article Written by: Ratan Kumar Ojha

Mental Health is not a taboo

Mental Health needs a great deal of attention. It’s the final taboo and it needs to be faced and dealt with -Adam Ant

Mental Health is important for all of us just as Physical Health. How we feel and think is central to the way we live our lives. Just like our physical health, our mental health can have ups and downs. It is not only about psychological illness or mental disorders this is just one part of a bigger frame. It’s good to think about mental health as being on a continuum rather than people being either mentally ill or mentally well. People with mental health conditions deserve just as much support and compassion as people with physical health conditions. We are all on the continuance and we move up and down according to factors such as our genetic makeup and upbringing our life circumstances and the stresses we are under but one end of the perpetuity we develops mental disorders like anxiety, depression and at the other end, we have state of constructive mental health when we are thriving the contempt and fulfilled the aim of mental health interventions is to move people up the continuum so that they are able to reach the full potential and live satisfying lives. The World Health Organization mentioned mental health as a state of well-being in which every individual realizes his or her own potential, can cope with the normal processes of existence, can work efficiently and usefully and can make a contribution to his or her society. Being psychologically well means being strong and able to cope with difficult situations. Very few people with mental disorders access existing treatment services due to the prevailing stigma attached to seeking help, lack of understanding mental health problems, the uncertainty of how to get help or fear of disclosing mental health problems.

There is lack of awareness for Mental issues:

• Suicide was decriminalised only in 2017, but section 309 of IPC still exists.

• This section penalises attempted suicide, unless the person can prove severe stress

• Stigma and taboo are still widely attached to mental health illnesses.

From all these factors, stigma remains the biggest factor preventing people from seeking help early for their mental health problems and getting the appropriate support they need. Stigma and discrimination prevent people with mental health problems from getting housing, jobs, and education as well as prevent people from seeking needed help. Myth is that the people with mental illness are violent and dangerous. The truth is that, as a group mentally ill people are no more violent than any other group. In fact, they are far more likely to be the victims of violence than to be violent themselves. Mental health is necessary to handle the natural ups and downs of life and to develop positive and sustainable coping mechanisms. It is important to acknowledge that we all have mental health and have a personal responsibility to learn how we can improve our well being in order to live meaningful and satisfying lives.

Environmental Law Principles adopted by India

The Indian courts have successfully adopted specific environmental law principles from international environmental law jurisprudence and have combined a liberal view towards ensuring social justice and the protection of human rights. These principles have been incorporated in the Indian environmental jurisprudence and play a key role in decisions of judges even when not explicitly mentioned in the concerned statute. The principles of Indian environmental law are resident in the judicial interpretation of laws and the Constitution, and encompass several internationally recognized principles, thereby providing some semblance of consistency between domestic and global environmental standards.

1. Precautionary Principle:

A new principle for guiding human activities, to prevent harm to the environment and to human health, has been emerging during the past 10 years. It is called the “principle of precautionary action” or the “precautionary principle” in short. This principle is controversial and its definition varies in terms of viewpoint. Environmentalists and consumer advocacy organizations that demand bans and restrictions on industrial practices or products would want policy-makers to take no action unless they would do no harm. States and advocates of economic development argue that the lack of full certainty is not a justification for preventing an action that might be harmful.

In India, for the first time in Vellore Citizens Welfare Forum v. Union of India , the Supreme Court explicitly recognized the precautionary principle. as a principle of Indian environmental law. In S. Jagannath v Union of India (Shrimp Culture Case), the Supreme Court Bench headed by Justice Kuldip Singh required the authority to deal with the situation created by the shrimp industry and issued remedial directions consistent with the precautionary and polluter pays principles. In A.P. Pollution Control Board v Prof M.V. Nayudu, the Court drew out the development of the precautionary principle in clear terms.

In the Narmada Bachao Andolan v Union of India, the Court explained that:

When there is a state of uncertainty due to the lack of data or material about the extent of damage or pollution likely to be caused, then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution.. Refusing to apply the “precautionary principle” used in cases dealing with inherently polluting activities such as heavy industries, the Court accepted the contention of the respondents that the project would have a positive impact by arresting the ecological degradation presently taking place in the drought-prone areas of Gujarat and Rajasthan, leading to sustainable agriculture and spread of green cover. The generation of hydropower would avoid the air pollution that would otherwise take place by thermal generation.

The movement towards adopting the precautionary principle has definitely widened the scope of corporate accountability, but the interpretation taken by the court mitigates the relevance and incorporation of this principle in Indian Jurisprudence.

2. The .Polluter Pays. Principle:

The Supreme Court with the introduction of the principle of absolute liability in M.C Mehta v Union of India calculates environmental damages not on the basis of a claim put forward by either party, but through an examination of the situation by the Court, keeping in mind factors such as the deterrent nature of the award. . This rule has been endorsed in Indian Council for Enviro-Legal action v Union of India and Vellore Citizens welfare Forum v Union of India. However, the Supreme Court held recently that the power under Article 32 to award damages, or even exemplary damages to compensate environmental harm, would not extend to the levy of a pollution fine.

3. Sustainable Development and Inter-generational Equity:

In Narmada Bachao Andolan v. Union of India43 it was observed that: Sustainable

development means what type or extent of development can take place, which can be sustained by nature/ecology with or without mitigation.. Earlier in the Vellore Citizens Welfare forum v Union of India , the traditional concept that development and ecology were opposed to each other was rejected and sustainable development was adopted. In the Taj Trapezium case this principle was accepted and again it was said that development of industry is essential for the economy of the country but at the same time the environment and ecosystem has to be protected.

In State of Himachal Pradesh v. Ganesh Wood Products, the Supreme Court invalidated forest-based industry, recognizing the principle of inter-generational equity as being central to the conservation of forest resources and sustainable development. In the CRZNotification case 46 the courts carried forward the concern for sustainable development by expressing its concern at the adverse ecological effects, which will have to be borne by future generations.

4. Public Trust Doctrine:

The Public Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath, states that certain common properties such as rivers, forests, seashores and the air were held by Government in Trusteeship for the free and unimpeded use of the general public. Granting lease to a motel located at the bank of the River Beas would interfere with the natural flow of the water and that the State Government had breached the public trust doctrine. The Supreme Court enunciated Professor

Joseph Saxs doctrine of public trust in this case to further justify and perhaps extract state initiative to conserve natural resources, held that the state, as a trustee of all natural resources, was under a legal duty to protect them; and that the resources were meant for public use and could not be transferred to private ownership. This doctrine was further reiterated in M.I Builders Pvt Ltd v Radhey Shyam Sahu.

Doctrine of Notional Extension under the Workmen Compensation Act, 1923

There is no problem in detecting that the accident occurred in the course of employment when a workman is injured in the working place and in the working hour and doing his duty. The problem arises when these elements do not coincide together. But a workmen if injured just near the work premises or just before joining the work or in the way to work problem arises. To address this kind of problem and giving some kind of relief to the workmen the theory of notional extension evolved.

“As a rule, the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded. It is now well-settled, however, that this is subject to the theory of notional extension of the employer’s premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer’s premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all times this theory of notional extension.”

Wider interpretation of duty:

Court has given a wider and popular meaning of “duty” to expand the scope of this section. The court also talks about the service contract to determine which can be come under the preview of this section. Justice Cozens-Hardy M. R. said “……… it was an implied term of the contract of service that these trains should be provided by the employers, and that the colliers should have the right, if not the obligation, to travel to and from without charge.” In the next case the court has interpreted the term “duty” in stricter sense.

In Weaver v. Tredegar Iron Coal Co. House of Lords after examining a large number of authorities given a wider meaning of “duty” but did not negated the duty test.In this case lord Atkin said that there can be no doubt that the course of employment cannot be limited to the time or place of the specific work which the workman is employed to do. It does not necessarily end when the “‘down tools” signal is given, or when the actual workshop where he is working is left. In other words, the employment may run on its course by its own momentum beyond the actual stopping place. There may be some reasonable extension in both time and space.” Lord Porter further said that if an accident occurs while coming to the workplace or leaving the place can be out of and in the course of employment if he is bound by the way he proceed under the terms of the contract of service express or implied. Here duty test was confirmed.

Expanding the preview of Service Contract:

In St. Helens Colliery Co Ltd v. Hewlston the court said that the injury did not occur in the course of employment because the employee was not bound or obliged to travel by that special train and he could have taken other transport. If he were bound by the service contract to travel by that train then it would have been in the course of employment (Lord Buckmaster). It was also added that if the place of work is like that there is no alternative means of transport other than the transport given by the employer then it can be concluded that there is an implied term in the service contract to use that transport (Lord Atkinson). The same view was taken in Mackenzie v. I.M. Issak says that a workman in a colliery is not in course of his employment while using the transport of the employer if he is not bound by the terms of the contract to travel by that transport.

There was a particular situation where employee has to take bus service to reach his workplace from home and vise versa. It was necessary for doing his duty efficiently and punctually which was a condition under his service . So, travelling in that bus was an implied condition to his duty. It was also said that this doctrine was developed to cover the factory, workshops and harbors but it can be applied in this kind of situation also. Compensation was granted holding that the accident arising in the course of employment. Though the court said what would be the indicator that when the work starts and ceases that depends on case to case basis.

In Union of India v. Mrs . Noor Jahan a railway gangman was ordered by his employer to go to another place for cleaning and in the way from one place to another accident happened. Justice Sukla observed that the accident has occurred in the duty hour and when he was going to do his duty on behalf of his employer and he concluded that the accident has occurred in the course of his employment.

Public Place and this Doctrine:

There are some situations where this doctrine does not apply. When a workman is on the public road or public place and not there for fulfilling the obligation and his work does not make necessary to be there. The proximity of the work premises and spot of accident become immaterial. The notional extension of the place of work cease when workman come to a public road. There were some clarification made in the next case in this matter.

In Saurashtra Salt Manufacturing Co. v. Valu Raja Justice Jafer Imam said that,

“It is well settled that when a workman is on a public road or a public place or on a public transport he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of notional extension, outside of which the employer is not liable to pay compensation for any accident happening to him.”

Laws that a layman should know about

Indian Constitution has provided several rights to the people to protect their fundamental rights, but unfortunately, most people are not aware of their rights. Below are some laws and the rights which not only protect people’s interests but also ease their daily life.

1. If your cylinder explodes you are entitled to Rs. 40 lakh cover!

Many of us are unaware that domestic LPG consumers are entitled to a cover of Rs. 40 lakh in case of loss of life or damage to property due to cylinder explosions.

2. Penalised for receiving gifts? Yes, they can be bribes.

It has become a tradition for companies to send gifts! As these gifts can be carefully veiled bribes, the law is a smart move by the government to avoid situations of bribery.

3. Only female officers can escort women to the police station

Not only do male officers have no right to escort a woman but she can refuse to go to the police station between 6 pm to 6 am. In case of a serious crime, a written permit from the magistrate is required for male officers to escort her.

4. The tax recovery officer can arrest and release you

In case of tax violations, the TRO has the right to arrest you, though a summon has to be sent. The tax commissioner only decides how long can you be in custody, but your release will be decided by the TRO. This has been mentioned in the Income-tax Act, 1961 .

5. No traffic violation laws for non-motorised vehicles

Though it has been clarified that a golf cart is not allowed on the road but there aren’t any penalties against non motor vehicles like a cycles or rickshaws, since they don’t fall under the Motor Vehicles Act.

6. Women can lodge complaints through emails

Guidelines issued by the Delhi Police entitle women to the privilege of registering a complaint via email or even through post if she can’t go to the police station.

7. Live-in relationships are not illegal

Though it is frowned upon in our country, but as long as both the adults are ready to stay together, live-in relationships are not illegal. Moreover, live-in relationships are considered to be ‘equal to marriage’ if certain conditions are met few of which are pooling of financial and domestic arrangements, entrusting the responsibility, sexual relationship, bearing children, socialization in public and intention, conduct of the parties, etc. This is done to protect women under the Domestic Violence Act. Also, children born out of live-in relationships have the right to inherit their parent’s property.

8. Political parties can solicit your vehicle during elections

During the time of elections, a political party can solicit your car or bike for campaigning purposes after deciding a settlement with you. Also, parties cannot offer free rides to and fro from poll booths.

9. If you have been fined once in the day you maybe excused after that

Riding around without a helmet can land you into trouble, but once you are fined for it, the chalaan slip can get you out of being fined for the same till midnight. Yes, but this is not an encouragement to do so. Be safe while driving.

10. You don’t have to pay the MRP, you can buy for less

MRP is the Maximum Retail Price. As consumers, you have the right to bargain for a price below that. However, a seller can not go beyond the MRP.

11. If you aren’t paid, file a complaint immediately

The Limitation Act states that if you aren’t paid by someone who is contracted to pay you, you need to file a complaint within 3 years. After that time period your suit most likely will be dismissed, so being lazy about this is not an option.

12. 3 months in jail for PDA! (Public Display of Affection)

PDA within its limits is allowed but any obscene activity is punishable by law for upto 3 months. Since the word obscene has not been defined, couples are often harassed by policemen.

13. Head constables have limited prosecution power

No head constable can fine you for any offence which has penalty more than 100.

14. A police officer is always on duty, literally

The 1861 Police Act clearly states that a police officers is always on duty. If he or she witnesses an act of crime or if an incident is brought to their knowledge they can’t say “I am not on duty” even if they aren’t in uniform. Of course, they are entitled to some rest because of the the hard work that they put in to their work.

15. The no sex divorce

As funny as it sounds, if a husband or a wife refuse sex post marriage, it can be deemed as ‘mental cruelty’ and is a viable reason for divorce.

Concept of Delegated legislation

Definition:Black’s Law Dictionary defines ‘Delegation’ as ‘the act of entrusting another with authority or empowering another to act as an agent or representative’. E.g. Delegation of Contractual Duties.

‘Subordinate Legislation’ has been defined as:

“Legislation that derives from any authority other than the Sovereign Power in a state and that depends for its continued existence and validity on some superior or supreme authority.”

Salmonddefines – “Subordinate legislation is that which proceeds from any authority other than the sovereign power, and is therefore dependent for its continued existence and validity on some superior or supreme authority.”

Delegated legislation is, at times, referred to as “Ancillary”, “Subordinate”, Administrative Legislation or as Quasi-Legislation”. Delegated legislation is a technique to relieve pressure on legislature’s time so that it can concentrate on principles and formulation of policies.

Essential characteristics of Delegated Legislation:

· The rules should contain short titles, explanatory notes, reference to earlier amendments, etc. for clear understanding.

· No extra-ordinary delay shall occur in making the subordinate legislation.

· The administrative authority should not travel beyond the powers given in Parent Act.

· Essential legislative functions cannot be delegated.

· Sub-delegation (Delegatus non potest delegare) is not encouraged.

· General rules should not be framed with retrospective operation, unless and until the parent Act instructs to do so.

· Discriminatory and arbitrary rules should not be framed.

· Wide and sufficient publicity shall be given so that general public can know it.

· In appropriate cases, consultation also shall be made for more effectiveness and efficiency.

· The Sub-ordinate authorities should not use rigid, crux and technical language while preparing the rules, which may cause difficulty to understand by general public.

· The final authority of interpretation of the subordinate rules is vested to Parliament and Courts. But the administrative authorities are not empowered and authorised to interpret the statutes.

· A tax or financial levy should not be imposed by rules.

· Wherever it is necessary, the explanatory notes shall be given.

· Public interest must be kept in view while delegating the powers, etc.

History of Delegated Leislation in India:

a. Pre – constitutional Position:

The history of delegation of powers can be traced from the charter stage of 1833 when the East India Company was regaining political influence in India. The of 1833 vested the legislative powers exclusively in Governor – General – in council, which was an executive body. He was empowered to make laws and regulations for repealing, amending or altering any laws or regulations, which were in force for all persons irrespective of their nationality. In 1935 the Government of India Ac, 1935 was passed which contained an intensive scheme of delegation. The report of the committee on ministers’ powers was submitted and approved which fully established the case for delegation of powers and delegation of legislation was regarded as inevitable in India.

b. Present Position:

Though, our constitution was based on the principal of separation of powers, a complete separation of powers was not possible hence it maintained the sanctity of the doctrine in the modern sense. The Indian Constitution does not prohibit the delegation of powers. On the other hand there are several provisions where the executive has been granted the legislative powers. For example the legislative powers of the president under the Indian Constitution are conspicuous. Under Article 123 the president has the power to promulgate the ordinances and unrestricted power to frame regulations for peace progress and good government of the union territory under Article 240. The Supreme Court of India has also upheld the delegation of legislative powers by the legislative to the legislative to the executive in the case of Raj Narayan Singh v. Chairman Patna Administration Committee

Growth of Delegation of Power and it’s Reason:

Many factors are responsible for the rapid growth of delegated legislation in every modern democratic state. The traditional theory of ‘laissez faire’ has been given up by every state and the old ‘police state’ has now become a ‘welfare state’. Because of this radical change in the philosophy as to role to be played by the state, their functions have increase. Consequently, delegated legislation has become essential and inevitable.

Some of the reasons of the growth of the Delegation of Powers are as follows:

1. Pressure upon Parliamentary Time:

As a result of the expanding horizons of the state activity, the bulk of legislation is so great that it is not possible for the legislation to devote sufficient time to discuss all the matters in detail. Hence there is need for a delegation of power.

2. Technicality:

Sometimes, the subject – matter on which legislation is required is so technical in nature that the legislator, being himself a common man, cannot be expected to appreciate and legislate on the same, and the assistance of experts may be required. Hence, this lead to the growth of delegation of power.

3. Flexibility:

At the time of passing any legislative enactment, it is impossible to foresee all the contingencies, and some provision is required to be made for these unforeseen situations demanding exigent action. Hence there is a need for flexibility which leads to the growth of delegation of power.

4. Experiment:

The practice of delegated legislation enables the executive to experiment. The method permits rapid utilization of experience and implementation of necessary changes.

5. Emergency:

In the time of emergency, quick action is required to be taken. The legislative process is not equipped to provide for urgent solution to meet the situation. Hence there is need for delegation of power.

Delegation Legislation : Position under Constitution of India

The Legislature is quite competent to delegate to other authorities. To frame the rules to carry out the law made by it. In D. S. Gerewal v. The State of Punjab, K.N. Wanchoo, the then justice of the Hon’ble Supreme Court dealt in detail the powers of delegated legislation under the Article 312 of Indian Constitution. He observed: “There is nothing in the words of Article 312 which takes away the usual power of delegation, which ordinarily resides in the legislature. The words “Parliament may by law provide” in Article 312 should not be read to mean that there is no scope for delegation in law made under Article312….” In the England, the parliament being supreme can delegated any amount of powers because there is no restriction. On the other hand in America, like India, the Congress does not possess uncontrolled and unlimited powers of delegation.

In Panama Refining Co. v. Rayans, the supreme court of the United States had held that the Congress can delegate legislative powers to the Executive subject to the condition that it lays down the policies and establishes standards while leaving to the administrative authorities the making of subordinate rules within the prescribed limits. 4 Art. 13 (3) Defines law and it Includes ordinance, order, byelaw, rule, regulation & notification having the force of law.

In Sikkim v. Surendra Sharma– it is held that ‘All Laws in force’ in sub clause (k) of Art. 371 F includes subordinate legislation. Salmond defines law as that which proceeds from any authority other than the Sovereign power & is therefore, dependent for its continued existence & validity on some superior or supreme authority.

Child Labor in India

Child labor refers to the exploitation of the children by employing them to work and interfering with their ability to attend regular schools, and any work that is harmful for them mentally, socially, physically or morally. It has been a major issue all around the world, especially in the developing countries, and it destroys the future of the child employed in child labor. In Child Labor (Prohibition and Regulation) Act 1986, a child has been defined as a person who has not completed the age of 14 years. For a layman, the definition of child labor is the practice of engaging the children in economic activity as a part-time or a full time job.

Child labor has existed throughout the history. During the 19^th and the early 20^thcenturies children between the ages of 5-14 from poor families worked in western nations and their colonies. The children worked mainly for factories, mines, home-based operations, or agriculture. In the early 20^th century, thousands of young boys were employed in glass making industries, factories and mines. The conditions of working were extremely difficult as there was extreme heat, or no advanced technologies. The children suffered eye troubles, lung problems, cuts, heat exhaustion, etc.

CAUSES OF CHILD LABOR

POVERTY – it is one of the main causes of child labor in India. It is one of the major drawbacks and the children are considered to be helping hands for the family in terms of financial support.
DEBTS – due to the poor economic conditions of people, they are forced to borrow money from moneylenders who charge them high rate of interests, because of which they find it difficult to repay the debt due to which the money lenders employ the debtors, including their children, to work for them.
PROFESSIONAL NEEDS – there are some industries that require delicate hands and little fingers to do the minute work, such as in bangle making factories. Bangle making industry is known for employing children.

RIGHTS OF CHILDREN IN INDIA

In India, the government has taken various effective measures to eliminate child labor. The Indian constitution has incorporated provisions to secure the rights of children, such as compulsory elementary education as well as the labor protection for children. Some other provisions are:

No child below the age of 14 shall be employed in any factory or mines or engaged in any other form of hazardous work.
States in particular shall direct its policy towards securing the health of the workers, men and women and the tender age f children are not abused and that the citizens are not forced by economic necessity to for their children to work.
The state shall provide free and compulsory education to all children between the ages of 6-14 as such a manner as the state may determine by law.

REALITY OF CHILD LABOR IN INDIA

Even though strict laws and policies are being formed for the protection of children against child labor, the reality stands totally opposite. The laws formed are hard to enforce, especially in the rural areas where it is most prevalent and the villages are barely connected to state infrastructure. For many families in India, giving up child labor means letting go of an entire income which could push them deeper into poverty. For most of the factory owners, using child labor is the only way to produce local products at a cheap rate and be able to make them compete in the international market. The states have the responsibility to enforce laws for the protection of children, however due to the lack of funds and proper administration; they are unable to do so. Also the judicial system of India, is not competent enough to stop the violators of child labor easily. Many a times the violators can very easily slip through the cracks because of the lack of proper administration, and even though they are found guilty, the fine for the same is not enough for a practical deterrent.

Residential Status (Section 6) of the Income Tax Act, 1961

The basis of charging income tax is the taxable income of every person. To determine taxable income, it is essential to find out residential status of the person and scope of total income. There are two types of taxpayers from residential point of view – Resident in India and Non-resident in India. Indian income is taxable in India whether the person earning income is resident or non resident. Conversely, foreign income of a person is taxable in India only if such person is resident in India. Foreign income of a non-resident is not taxable in India. Therefore, the tax liability of a person is dependent upon the residential status of a person.

RESIDENTIAL STATUS AND TAX LIABILITY (SECTION 6)

According to the residential status, the assessee can either be;

 Resident in India, or

 Non-resident in India

However, a resident individual and a resident HUF can further be classified as:

 Resident and Ordinarily resident in India (ROR) or

 Resident but not Ordinarily resident in India (RNOR).

It must be noted that only an individual or a HUF can be resident, not ordinarily resident or non resident in India. All other assesses can be either resident or non-resident in India but cannot be not ordinarily resident in the matter of their residential status for all purposes of income tax. Section 6 of the Income-tax Act prescribes the conditions to be fulfilled by various taxpayers to determine their residential status.

RESIDENTIAL STATUS OF AN INDIVIDUAL:

An individual first needs to satisfy basics condition in order to become resident in India. If a resident individual satisfies additional conditions, he becomes resident and ordinarily resident (ROR), otherwise he is resident but not ordinarily resident (RNOR).

BASIC CONDITIONS FOR AN INDIVIDUAL TO BE RESIDENT

Under Section 6(1) of the Income-tax Act, an individual is said to be resident in India in any previous year if he:

1. he has been in India for at least 182 days during the previous year; or,

2. he has been in India for at least sixty days (60 days) during the previous year and for at least three hundred and sixty-five days (365 days) during the four years immediately preceding the previous year.

Exceptions to above conditions

In the following two cases, second condition is not applicable, i.e., if condition (1) is satisfied then an individual is resident otherwise he will be non-resident:

i. the individual is a citizen of India, who leaves India in any previous year as a member of the crew of an Indian ship, or for the purpose of employment outside India, or

ii. the individual is a citizen of India or person of Indian origin engaged outside India (whether for rendering service outside or not) and who comes on a visit to India in the any previous year.

Therefore, in the above two exceptional cases, only the basic condition 1 needs to be checked. If it is satisfied, then the individual is treated as a resident, otherwise he will be treated as non resident.

NON-RESIDENT

If an individual does not satisfy any of the above two basic conditions then, he will be treated as non-resident.

It must be noted that the fulfilment of any one of the above conditions 1 or 2 will make an individual resident in India since both these conditions are alternative and not cumulative in their application

ADDITIONAL CONDITIONS FOR AN INDIVIDUAL TO BE RESIDENT AND ORDINARY RESIDENT (ROR)

An individual may become a resident and ordinarily resident in India if he satisfies both the following conditions given u/s 6(1) besides satisfying any one of the above mentioned conditions:

1. he is a resident in atleast any two out of the ten previous years immediately preceding the relevant previous year, and

2. he has been in India for 730 days or more during the seven previous years immediately preceding the relevant previous year.

RESIDENT AND NOT ORDINARY RESIDENT (RNOR)

If a resident individual is not able to satisfy both the additional conditions, then he will be resident but not ordinary resident (RNOR).

Important Points to be considered while determining Residential Status:

The residential status of the assessee should be determined for each year separately. This is because a person resident in one year may become non-resident or not ordinarily resident in another year and vice versa.

1. The residential status of an individual for tax purposes does not depend upon his citizenship, nationality and place of birth or domicile. This is because for tax purposes, an individual may be resident in more than one country in respect of the same year.

2. The period of stay required in each of the conditions need not necessarily be continuous nor is the purpose of stay is insignificant in determining the residential status.

3. It is not required that the stay should be at the usual place of residence, business or employment of the individual. The stay may be anywhere in India and for any length of time at each place.

4. India means territory of India, its territorial waters, continental shelf, Exclusive Economic Zone (upto 200 nautical miles) and airspace above its territory and territorial waters.

5. Where the exact arrival and departure time is not available then the day he comes to India and the day he leaves India is counted as stay in India.

Meaning of Company and its Classification

A company is a voluntary association of individuals formed to carry on business to earn profits or for non profit purposes. These persons contribute towards the capital by buying its shares in which it is divided. A company is an association of individuals incorporated as a company possessing a common capital i.e. share capital contributed by the members comprising it for the purpose of employing it in some business to earn profit.

“As per Companies Act 1956, a company is formed and registered under the Companies Act or an existing company registered under any other Act”.

Types of Companies:

Companies can be classified under the following heads:

1. On the basis of formation.

2. On the basis of liability.

3. On the basis of ownership.

1. On the basis of formation: On the basis of formation companies can be categorised as:

(a) Statutory Company: A company formed by a Special Act of parliament or state legislature is called a Statutory Company. Reserve Bank of India, Industrial Financial Corporation of India, Life Insurance Corporation of India, Delhi State Finance Corporation are some of its examples.

(b) Registered Company: A company formed and registered under the Companies Act, 1956 or earlier Companies Acts is called a Registered Company. The working of such companies is regulated by the provisions of the Companies Act.

2. On the basis of liability: On the basis of liabilty, companies can be catagorised as:

(a) Company limited by shares: The liability of the member of such company is limited to the face value of its shares.

(b) Company limited by guarantee: The liabilty of each member of such company is limited to the extent of guarantee undertaken by the member. It may arise in the event of its being wound up.

(c) Unlimited Company: The company not having any limit on the liability of its members, is called an unlimited company. Liability in such a case extends to the personal property of its shareholders. Such companies do not use the word ‘limited’ at the end of their name.

(d) Company under section 25: A company created under section-25 is to promote art, culture and societal aims. Such companies need not use the term limited at the end of their name. Punjab, Haryana, Delhi chambers of commerce, etc. are the examples of such companies.

3. On the basis of ownership: On the basis of ownership, companies can be catagorised as :

(a) Private Company: A private company is one which by its Articles of Association :

(i) restricts the right of members to transfer its shares;

(ii) limits the number of its members to fifty (excluding its past and present employees);

(iii) prohibits any invitation to the public to subscribe to its shares, debentures.

(iv) The minimum paid up value of the company is one lakh rupees (Rs 100000). The minimum number of shareholders in such a company is two and the company is to add the words ‘private limited’ at the end of its name. Private companies do not involve participation of public in general.

(b) Public Copmpany: A company which is not a private company is a public company. Its Articles of association does not contain the above mentioned restrictions. Main features of a public company are : (i) The minimum number of members is seven.

(ii) There is no restriction on the maximum number of members.

(iii) It can invite public for subscription to its shares.

(iv) Its shares are freely tansferable.

(v) It has to add the word ‘Limited’ at the end of its name.

(vi) Its minimum paid up capital is five lakhs rupees (Rs 500,000).

(c) Government Company: A Government company is one in which not less than 51% of its paid up capital is held by (1) Central Government or (2) State Government, or (3) partly by Central Government and partly by State Governemt. Example of a Government company is Hindustan Machine Tools Limited, (HMT) State Trading Corporation (STC). Minerals as metals training corporation (MMTC).

(d) Foreign company: A foreign company is one which is incorporated outside India but has a place of business in India, for example Philips, L.G, etc. standard materials.

(e) Holding company and Subsidiary company: A holding company is a company which controls another company (called subsidiary company) either by acquiring more than half of the equity shares of another company or by controlling the composition of Baord of Directors of another company or by controlling a holding company which controls another company.

(f) Listed company and unlisted company: A company is required to file an application with stock exchange for listing of its securities on a stock exchange. When it qualifies for the admission and continuance of the said securities upon the list of the stock exchange, it is known as listed company. A company whose securities do not appear on the list of the stock exchange is called unlisted company.

Property of a female Hindu to be her absolute property

Section 14 of The Hindu Succession Act, 1956 states that,

(1) Any property possessed by a Female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation: In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as streedhan immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Under this Section , any property acquired by a Hindu female except that which is covered by sub-section 2 before the Act came into force will became her absolute property and any property acquired by a Hindu female except that which covered by the commencement of Act will be her absolute property.

The above stated changes could be seen while going through the observation of courts at different periods:-

In Janaki v. Narayana Swami, Privy Council observed regarding women’s estate as “her right is of the nature of right of property, her position is that of owner; her powers in tat character are, limited…So long as she is alive , no one has vested interest in succession.”

In another case, Kalawati v. Suraj, SC stated that in the context of section 14 “ ‘women’ does not mean any woman , but that woman who is the owner of woman’s estate. If the holder of woman’s estate had alienated the estate to a woman, that woman is not the woman whose estate is enlarged to full estate.”

“The effect of rule laid down in the Section 14 of The Hindu Succession Act, 1956 is to abrogate the stringent provisions against the proprietary rights of a female which are often regarded as evidence of her perpetual tutelage and to recognize her status as independent and absolute owner of property.”

Before the enactment of The Hindu Succession Act, 1956, Hindu women has streedhan as:-

(a)Absolute property and

(b) Limited estate.

When the constitutionality of the Act has been challenged and SC has observed that the Act has the object of enhancing women’s limited estate concept regarding property into absolute interest. It is within the spirit of court of India. Hence it is not violative of any fundamental rights especially Art.14, 15(1) of the Constitution of India.

S.14 has been given retrospective effect. But this Section has no application for those who has already inherited and alienated the property before the Act came into force. In Anandibhai v. Sundarabhai , High Court has been observed as “the expression ‘any property possessed by a female Hindu’ in Section 14 means ‘any property owned by a female Hindu’ at the date of the commencement of the Act, and, these words are prospective in their application. Any property ‘acquired before’ the commencement of the act shall be the absolute property. The expression ‘whether acquired before or after the commencement of this act’ shows that section is operative retrospectively.

There are two conditions to be fulfilled for the application of Section 14 of The Hindu Succession Act, 1956:

Ø Ownership of the property must vest in her, and

Ø She must be in the possession of the Estate when the Act came into force.

Supreme Courts and High courts have given wider connotations for the term possession. According to their observation, it can be in the form of actual and constructive possession. In Santosh v. Saraswathi, a question has been raised regarding the possession of property of female Hindu and Court held the view that where property was given to the woman by way of maintenance over which she had a right, her possession was accepted, it became her absolute property. Even when the property is in the possession of a trespasser, it has been held that she is in constructive possession.

Fundamental rights and the Environment

The Golden Triangle of the Indian Constitution – Article 14, Article 19 and Article 21 – has been invoked time and again for environmental protection. The High Courts and Supreme Court of India have read the right to a wholesome environment as a part of the right to life guaranteed in Article 21 of the Constitution of India.

In the Dehradun Quarrying Case, though the orders did not articulate the fundamental right to a clean and healthy environment, the petition was treated as a writ under Article 32, which implied that the court was seeing this right in the light of a fundamental right. The Supreme Court explained the basis of this jurisdiction in the later case of Subhash Kumar v State of Bihar where the court held that the right to life is a fundamental right under Article 21 of the Constitution and it includes right of enjoyment of pollution free water, air for full enjoyment of life. and that .if anything endangers or impairs the quality of life, in derogation of laws, a citizen has a right to have a recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.. This concept has been furthered by the Supreme Court and various High Courts decisions worded differently by concretising the idea of right to a clean and healthy environment as a part of fundamental rights.

The other integral part of right to life is right to livelihood as enumerated in the Olga Tellis Case, which is again a judicial enlargement of the right to life envisaged under Article 21 of the Indian Constitution. In Olga Tellis the Court looking at the limitation of the Indian State said that to deprive a person of his right to livelihood would mean depriving him of his life. The State may not by affirmative action be compellable to provide adequate means of livelihood or work to the citizens but any person who is deprived of his right to livelihood by law can challenge the deprivation as offending the right to life conferred by Article 21. Many environmentalists think that the right to livelihood could be asserted to prevent environmentally disruptive projects that threaten to uproot tribal people and villagers for depriving their right to livelihood. The recent agitation by the farmers of Singur and Nandigram in West Bengal and Narmada Bachao Andolans (NBA) campaign against the Sardar Sarovar Dam can be understood in this perspective. However, industries see a strict environmental regime at loggerheads with the right to livelihood and clean/healthy environment of the citizens. The argument forwarded by the industry interests can be rebutted on the grounds that right to clean environment and right to livelihood are complementary rather than contradictory. If all industries follow the environmental standards, then the price of products will include all the external costs which would have to be borne by the consumers. Nevertheless, even this alternative can be questioned in a third world country like India where most people are unable to afford costlier products.

Article 14 can be invoked to challenge government sanctions for projects with high environmental impact, where permissions are arbitrarily granted without adequate consideration, for example, of their environmental impacts. Article 19(1) (g) provides that all citizens shall have the right to practice any profession, or to carry on any occupation, trade or business but with reasonable restrictions which may be placed in the interest of the general public as provided within section 19 sub clause (6), which might include total prohibition. Accordingly, in cases involving polluting industrial units, the courts face the task of balancing the environmental imperative with the right to carry on any occupation/trade or business.

Concept of Writs In India

A Writ is a formal written order issued by a government entity in the name of the sovereign power. In most cases, this government entity is a court. In modern democratic countries, the administrative authorities are vested with vast discretionary powers. The exercise of those powers often becomes subjective in the absence of specific guidelines etc. Hence the need for a control of the discretionary powers is essential to ensure that ‘Rule of Law’ exist in all governmental actions. The judicial review of administrative actions in the form of writ jurisdiction is to ensure that the decisions taken by the authorities are legal, rational, proper, just, fair and reasonable. Safeguard of fundamental rights and assurance of natural justice are the most important components of writ jurisdictions

Writs are meant as prerogative remedies. The writ jurisdictions exercised by the Supreme Court under article 32 and by the high courts under article 226, for the enforcement of fundamental rights are mandatory and not discretionary. But the writ jurisdiction of high courts for ‘any other purpose’ is discretionary. In that sense the writ jurisdiction of high courts are of a very intrinsic nature. Hence high courts have the great responsibility of exercising this jurisdiction strictly in accordance with judicial considerations and well established principles. When ordinary legal remedies seem inadequate, in exceptional cases, writs are applied.

Types of Writs:

1. Habeas Corpus: The meaning of the Latin phrase Habeas Corpus is ‘have the body’. According to Article 21, “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. The writ of Habeas corpus is in the nature of an order directing a person who has detained another, to produce the latter before the court in order to examine the legality of the detention and to set him free if there is no legal justification for the detention. It is a process by which an individual who has been deprived of his personal liberty can test the validity of the act before a higher court.

The objective of the writ of habeas corpus is to provide for a speedy judicial review of alleged unlawful restraint on liberty. It aims not at the punishment of the wrongdoer but to resume the release of the retinue. The writ of habeas corpus enables the immediate determination of the right of the appellant’s freedom. In the writs of habeas corpus, the merits of the case or the moral justification for the imprisonment or detention are irrelevant. In A.D.M. Jabalpur v. Shivakant Shukla , it was observed that “the writ of Habeas Corpus is a process for securing the liberty of the subject by affording an effective means of immediate relief from unlawful or unjustifiable detention whether in prison or private custody. If there is no legal justification for that detention, then the party is ordered to be released.”

2. Certiorari: The writ of Certiorari is generally issued against authorities exercising quasi-judicial functions. The Latin word Certiorari means ‘to certify’. Certiorari can be defined as a judicial order of the supreme court or by the high courts to an inferior court or to any other authority that exercise judicial, quasi-judicial or administrative functions, to transmit to the court the records of proceedings pending with them for scrutiny and to decide the legality and validity of the order passed by them. Through this writ, the court quashes or declares invalid a decision taken by the concerned authority. Though it was meant as a supervisory jurisdiction over inferior courts originally, these remedy is extended to all authorities who issue similar functions.

The concept of natural justice and the requirement of fairness in actions, the scope of certiorari have been extended even to administrative decisions. An instance showing the certiorari powers was exercised by the Hon’ble Supreme court in A.K.Kraipak v. Union of India, where the selection was challenged on the ground of bias. The Supreme Court delineated the distinction between quasi judicial and administrative authority. The Supreme Court exercising the powers issued the writ of Certiorari for quashing the action. Certiorari is corrective in nature. This writ can be issued to any constitutional, statutory or non statutory body or any person who exercise powers affecting the rights of citizens.

3. Prohibition: The grounds for issuing the writs of certiorari and prohibition are generally the same. They have many common features too. The writ of prohibition is a judicial order issued to a constitutional, statutory or non statutory body or person if it exceeds its jurisdiction or it tries to exercise a jurisdiction not vested upon them. It is a general remedy for the control of judicial, quasi judicial and administrative decisions affecting the rights of persons.

The writ of Prohibition is issued by the court exercising the power and authorities from continuing the proceedings as basically such authority has no power or jurisdiction to decide the case. Prohibition is an extra ordinary prerogative writ of a preventive nature. The underlying principle is that ‘prevention is better than cure.’ In East India Commercial Co. Ltd v. Collector of Customs, a writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise.

4. Mandamus: The writ of mandamus is a judicial remedy in the form of an order from the supreme court or high courts to any inferior court, government or any other public authority to carry out a ‘public duty’ entrusted upon them either by statute or by common law or to refrain from doing a specific act which that authority is bound to refrain from doing under the law. For the grant of the writ of mandamus there must be a public duty. The superior courts command an authority to perform a public duty or to non perform an act which is against the law. The word meaning in Latin is ‘we command’. The writ of mandamus is issued to any authority which enjoys judicial, quasi judicial or administrative power. The main objective of this writ is to keep the public authorities within the purview of their jurisdiction while performing public duties. The writ of mandamus can be issued if the public authority vested with power abuses the power or acts mala fide to it. In Halsbury’s Laws of England , it is mentioned that, “As a general rule the order will not be granted unless the party complained of has known what it was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce and that that demand was met by a refusal.”

5. Quo Warranto: The word meaning of ‘Quo warranto’ is ‘by what authority’. It is a judicial order against a person who occupies a substantive public office without any legal authority. The person is asked to show by what authority he occupies the position or office. This writ is meant to oust persons, who are not legally qualified, fro substantive public posts. The writ of Quo warranto is to confirm the right of citizens to hold public offices. In this writ the court or the judiciary reviews the action of the executive with regard to appointments made against statutory provisions, to public offices .It also aims to protect those persons who are deprived of their right to hold a public office.

In University of Mysore v. Govinda Rao, the Supreme Court observed that the procedure of quo Warranto confers the jurisdiction and authority on the judiciary to control executive action in making the appointments to public offices against the relevant statutory provisions; it also protects a citizen being deprived of public office to which he may have a right.

Guidelines to be followed by Police while making an Arrest

Arrest involves the restriction of liberty of a person arrested and therefore, infringes the basic human rights of liberty. Nevertheless the Constitution of India as well as International human rights law recognize the power of the State to arrest any person as a part of its primary role of maintaining law and order. The Constitution requires a just, fair and reasonable procedure established by the law under which alone such deprivation of liberty is permissible. Although Article 22(1) of the Constitution provides that every person placed under arrest shall be informed as soon as may be the ground of arrest and shall not be denied the right to consult and be defended by a lawyer of his choice and S.50 of the Code of Criminal Procedure, 1973 (Cr. PC) requires a police officer arresting any person to “ forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest”. in actual practice these requirements are observed more in the breach. Likewise, the requirement of production of the arrested person before the court promptly which is mandated both under the Constitution [Article22(2)] and the Cr. PC (Section 57] is also not adhered to strictly.

A large number of complaints pertaining to Human Rights violations are in the area of abuse of police powers, particularly those of arrest and detention. It has, therefore, become necessary, with a view to narrowing the gap between law and practice, to prescribe guidelines regarding arrest even while at the same time not unduly curtailing the power of the police to effectively maintain and enforce law and order and proper investigation.

GUIDELINES LAID DOWN BY THE HON’BLE SUPREME COURT IN D.K. BASU CASE:

The Hon’ble Supreme Court, in D.K. Basu Vs State of West Bengal , has laid down specific guidelines required to be followed while making arrests.

THE HON’BLE SUPREME COURT GUIDELINES on arrest:

The principles laid down by the Hon’ble Supreme Court are given here under:

(i) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designation. The particular of all such personnel who handle interrogation of the arrestee must be recorded in a register.

(ii) That the police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

(iii) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(iv) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aids Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(v) The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(vi) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclosed the name of the next friend of the person who has been informed of the arrest and the names land particulars of the police officials in whose custody the arrestee is.

(vii) The arrestee should, where he so request, be also examines at the time of his arrest and major and minor injuries, if any present on his /her body, must be recorded at that time. The Inspector Memo’ must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(viii) The arrestee should be subjected to medical examination by the trained doctor every 48 hours during his detention In custody by a doctor on the panel of approved doctor appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

(ix) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.

(x) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(xi) A police control room should be provided at all district and State headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

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