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CRITICAL ANALYSIS: THE DOCTRINE OF LEGITIMATE EXPECTATION

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This article is written by PRACHITI SHINDE a student of THAKUR RAMNARAYAN COLLEGE OF LAW

INTRODUCTION

It would not be an exaggeration to say that the concept of legitimate doctrine has paved its way to become one of the important doctrine along side rule of law, natural justice, fiduciary duties, etc. This doctrine based on the relationship between an individual and a public authority. This doctrine serves a relief or a remedy, which at certain times can hold the public authority liable for denying or disrupting the legal expectation. A person may have expectation to be treated in a specific way by the governing authorities owing to persistent practices in the past or a promise made by the concerned authority. The term legitimate expectation was coined by Lord Denning in the case of Schmidt v. Secretary of state for Home Affairs [1] . In this case it was observed that an alien person who had a legitimate expectation to reside in England cannot be denied without following procedures and rules. Lord Denning used the word ‘legitimate expectation’ in similar meaning as that of word ‘right’. However, though Lord denning had coined that word in Schmidt’s case, the essence of this doctrine was brought in the case of Breen v. Amalgamated Engineering Union [2] , in this case the fact that the trade union’s district committee was refusing to commend a member’s election as a shop steward was highlighted. The court observed that, if a person claims a privilege then the suit could be dismissed without even a hearing but in this case, it was seen that a person was entitled to something more than just a mere privilege; a legitimate expectation, which has arise through, that his election would be sanctioned if there are no discrepancy found, thus the principle of natural justice was followed in this case to guarantee fairness.

THE ORIGIN OF THE DOCTRINE OF LEGITIMATE EXPECTATION

The principle of doctrine of legitimate expectation was put forth by Lord Diplock in the case of Council of Civil Service Unions and Others v. Minister for the Civil Service [1985] AC 374 where certain aspects were observed. This case law has set a precedent for other countries. For the question about applicability of doctrine to arise, they should substantially prove that he has been deprived of some privileges or benefit due to decision of administrative authorities provided that either- (a) In the past he might have been permitted to enjoy some kind of benefit until there is an reasonable grounds for withdrawal of the same has been conveyed to him or (b) He has been guaranteed by the decision making body that the privileges given would not be abdicated without giving him an opportunity for disputing that why it should not be withdrawn. While in India on the other hand, the applicability has been observed in the case of State of Kerala Vs. K.G. Madhavan Pillai. [3] According to this case, the respondent had been given a sanction to open a non-aided school as well to upgrade the remaining ones by the government. However after fifteen days the sanction direct was stand suspended. The court observed during the proceedings that, the initial sanction issued created a legitimate expectation in the respondents which was violated by the second order passed by violating the principles of natural justice.

TYPES OF LEGITIMATE EXPECTATIONS

There are two aspects of legitimate expectations-

(a) Procedural – The procedural aspect of this doctrine implies that, the expectation of an individual that he possesses a right to certain procedure for example right to a hearing which has arisen due to actions of public body. The procedural legitimate expectation was introduced by Lord Denning in the Schmidt case in particular to application of principle of natural justice in the process of administrative action and now it has been given a substantial value in India as well.

(b) Substantive- The doctrine which has substantial aspect has not been emerged completely. Substantive legitimate expected implies that a situation where a person is seeking for the benefit which has arose from the legitimate expectations he had from certain public authority. Though the stance of legitimate expectation has been fluctuating. The English Court has observed the need for protecting the substantive legitimate expectation as well as in some cases the judgement having opposite effect.

WHO CAN ENFORCE THE DOCTRINE?

It was understood in the case of Ram Pravesh Singh and Ors. vs. State of Bihar and Ors [4] ,.that as the doctrine was formed on the basis of established practice, it was enforceable by some individual who has to deal with an authority in terms of any transactions or negotiations of that established practice. The person who has a legal relationship with decision making bodies can also invoke it. A total stranger who unconnected with the person or an authority cannot invoke the doctrine just merely because of the general obligation to act without any prejudices.

TERMS FOR FORMATION OF LEGITIMATE EXPECTATION

Madras City Wine Merchants v. State of Tamil Nadu [5]

There were circumstances put forth by this case to understand formation of legitimate expectation.

(a) if there was some kind of impression or commitment expressively by the authorizing body. R. v. Liverpool Taxi Fleet Association [6] The word legitimate expectation was not mentioned in the judgement. In this case, the no. of taxis were reduced in Liverpool concerning about this issue the taxicab owners’ associations received letters from the town-clerks stating that there would be opportunities for the taxicab owners to represent as well as that “interested parties would be fully consulted.” The subcommittee of the city council also indicated the increase in number of licenses. But after the city council’s meetings it was decided on the contrary that there would not be any increase in the number until national legislation. This was approved in a instrument (letter of association)Nevertheless, several months later, without informing the association, the committee and the city council decided to begin increasing the number of licenses almost immediately. But after many months later the city council and the committee decided to increase the number of licenses on the immediate basis without notifying the association. The owners demanded a hearing after hearing about this resolution but was denied. In this case Lord Denning observed that supposedly the decision is made on the contrary, the plaintiff would be provided with a right of second hearing. He expressed that- “….So long as the performance of the undertaking is compatible with their public duty, they must honour it. And I should have thought that this undertaking was so compatible. At any rate they ought not to depart from it except after the most serious consideration and hearing what the other party has to say: and then only if they are satisfied that the overriding public interest requires it…..” [7]

(b) That the promise must not have double meaning or should not be dubious

(c) There is persistent practice of the act in the past so the individual has expectations to operate in the same way In the case of CCSU [8], there was a pattern of consistent consultation before the change of service which happen, it led to formation of legitimate expectation. They should have been brought into the loop of discussion before the minister abolished the membership of trade union.

SITUATIONS WHERE THE DOCTRINE OF LEGITIMATE EXPECTATION CANNOT BE MAINTAINED

Every doctrine has its limitation even this doctrine is no exception to it i.e. it has a procedural impact but no substantive impact as such. In the case, it was seen that there was a Magistrate who was working on stipends and was incharge Court which dealt with petty sessions was suddenly replaced by a local court on the directions of the Act of Legislature but the Magistrate was not given any place in that new Court which was formed. The plea was filed pertaining to challenge such action but was dismissed on the grounds that if the substantive protection is provided according to legitimate expectation then it would result in obstruction in process of administrative action on merits which is not permitted. [9] According to the case of Assistant Excise Commissioner v. Issac Peter [10] this doctrine cannot be invoked to revise the terms of statutory contract. However in Howrah Municipal Corporation v. Ganges Road Company Ltd [11]  held that no right could be claimed on the grounds of legitimate expectations when it stands contrary to statutory provisions which has been applied in the interest of public at large Madras City Wine Merchants Association v. State of Tamil Nadu [12] , The doctrine of legitimate expects stands ineffective if there has been change observed in public policy or in the interest of public at large has been enunciated in some of the instances discussed above.

INTERRELATION BETWEEN LEGITIMATE EXPECTATION AND ARTICLE 14 OF THE CONSTITUTION OF INDIA

Every citizen has the right to equality and equal protection before law which is guaranteed under Article 14 of The Constitution of India. The apprehension of arbitrary action resulting into violation of the Article 14 was observed for the first time in the case of E.P. Royappa v State of Tamil Nadu [13]  by J Bhagwati wherein he established the opinion that equality is antithetic to arbitrariness. Article 14 has an extensive scope and incorporates equality, postulates of natural justice and is an obligation against arbitrariness of the state which in turn creates an duty on the the state to act without any prejudices. A good governance could be achieved in correspondence with Article 14, it is observed that there is certain kind of legitimate expectation which arises by which an individual likes to be treated impartially with its action between the state and the individuality. Law could be classified as any ordinance, order, regulations,etc. The provisions of Article 13(2) implies that any laws which are made on the purpose of infringing any other provision of the constitution would be considered as void. Thus, any arbitrariness, inconsistency or irrationality created in the application of principles of natural justice is void. Article 14 advances the principles of natural justice which indeed include right to hearing. It could be advocated that doctrine of legitimate expectations had built foundation the Constitution, they have similar application in Germany. But, the Supreme Court had an ambiguous application which led to making the doctrine seems irrelevant without understanding the importance as well as impact of the doctrine.

CONCLUSION

The need for applicability of this doctrine arises when public authority’s action has given rise to expectation by either past representation or by past practices, he shall not be deprived unless there is overriding public interest is in a way. However when an individual has to invoke the doctrine has to prove that he has relied on the authorities and was rejected which in turn worked as detriment. The court however could intervene if found any arbitrary or irrational decision which violates the principle of natural justice and not taken for the sake of public at large. The Doctrine of legitimate expectations has different application in India as well as Britain as this doctrine has been followed in both the countries. Procedural aspect is followed in Britain while both procedural and substantive has been followed in India. So it has been observed that India’s ambit of application is wider than Britain and also works as effective tool against misuse of power by the executives.

[1] [1969]1 All E.R. 904

[2] (1971) 1 ALL ER 1148

[3] (1988) 4 SCC 669

[4] (2006 (8) SCJ 721)

[5] (1994) 5 SCC 509

[6] CA 1972

[7] Regina v Liverpool Corporation Ex Parte Liverpool Taxi Fleet Operators Association, 1972, 2 Q.B. 299 C.A.

[8] Council of Civil Service Unions and Others v. Minister for the Civil Service, (1985) AC 374

[9] Attorney General for New South Wales v. Quinn, (1990) 64 Aust LJR 327

[10] 1994 SCC (4) 104

[11] (2004) 1 SCC 663.

[12] (1994) 5 SCC 509

[13] E.P. Royappa v State of Tamil Nadu, 1974 SCR (2) 348

Articles

Adultery: Detailed Analysis

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This article is written by Apoorva Pradhan, a student of Amity Law School, Noida

Abstract

Adultery shows a contention between social pressing factor and singular battle for bliss. Adulterers have consistently experienced society’s objecting disposition towards them. In India, adultery is criminalised under Section 497 IPC. According to criminal law in India, offense of adultery is coordinated just at the ‘pariah’ who abused the sacredness of the marital home when the outcast is a man. Accordingly it sums to gender based segregation in law. In our assessment, duration of this law in present day, requests broad changes and amendments.

Keywords: Adultery, Criminal law, India

Introduction

Adultery is gotten from a French word, about that has developed from the Latin action word, “adulterium”, intends to corrupt.[1] Adultery is characterized as the consensual extramarital sexual relationship that is viewed as offensive on social, religious and, good and prior on the legitimate grounds too.

However adultery is decriminalized, it actually exists as a delinquent go about as it violates social standards which an individual are accepted to be followed.

Since the most recent 158 years, it was treated as a crime however after the decision of Hon’ble Supreme Court in Joseph Shine v. Association of India, adultery is decriminalized and remained just a common wrong rather criminal offense. There were two significant conflicts for the decriminalization of adultery. They were:-

This section furnished husbands with the option to indict their wives’ philanderer while wives were denied to grumble against the adulteress of their husbands.

The section was uninformed on the issue of the two-timing demonstration of the spouse.

Adultery is a “deliberate sexual intercourse between a married individual and somebody other than the lawful companion.”

The term starts from the Latin word ad-ulterare (a blend of ad, “at”, and ulter, “above”, “past”, “inverse”, signifying “on the opposite side of the obligation of marriage”). Adultery in a real sense implies sex between a married man or lady and somebody who isn’t their wife or husband. An adulterer is a married man who has intercourse with a lady who isn’t his wife, or a man who has intercourse with another man’s wife while an adulteress is a female adulterer.

Adultery According To Religion

India is a country known for its solidarity in variety. Our country is a secular country where estimations of the relative multitude of religions are similarly regarded. Each religion follows its own perspectives and targets. Be that as it may, in the question of adultery pretty much every religion is profoundly basic. Various religions have various perspectives on adultery yet the centre view stays as before. In each religion, adultery is treated as a wrongdoing. In any case, the types of discipline might shift among religions. It is treated as a delinquent go about as it abuses the strict assumption of each religion.

Since days of yore it is viewed as a wrongdoing on the strict or legitimate ground as well as on the profound ground also.

Conventional Hindu perspectives in regards to adultery are that it makes issue in the society and debasement of family esteem. In Hinduism, marriage is a holy observance, accepted to be intended for seven subsequent births, where both the companions should be faithful to one another. They are accepted not to have a sexual relationship other than their companion.

As per Islam, adultery, rape, and sex which are unlawful are considered as Zina. As per the Quran, Zina is huded wrongdoing for what disciplines are fixed by god. The disciplines range from removal of hands and execution to public lashing to public batter to the point of death. Specifically to adultery, as per Quran, a two-faced individual ought to be stoned to death.

As per the Bible, adultery as a transgression meriting demise for all kinds of people. Adultery is treated as untrustworthy and corrupt and evil for the society.

As indicated by Buddhism, sexual intercourse outside wedlock is a transgression that expands sufferings. In Buddhism, adultery is the third of the five fundamental statutes that one should abstain.

As indicated by Judaism, which is one of the old religions, there is a provision of capital punishment for both adultrer and adulteress.

Adultery According To Law

In India, Section 497 of Indian Penal code (IPC) 1860, characterized adultery as:

“Whoever has sex with an individual who is and whom he knows or has motivation to accept to be the wife of another man, without the assent or intrigue of that man, such sex not adding up to the offense of rape, is blameworthy of the offense of adultery and will be rebuffed with imprisonment of one or the other portrayal for a term which might stretch out to five years, or with fine or with both. In such a case, the wife will not be culpable as an abettor”.

In 2018 section 497 was struck somewhere near Supreme Court in the case Joseph Shine v. Association of India consistently by the constitutional seat of five judges containing Justice Deepak Mishra, Justice Ajay Manikaro Khanwilkar, Justice Rohinton Nariman, Justice D.Y.Chandrachud and Justice Indu Malhotra. It was likewise held that in that matter if any oppressed companion ends it all, in light of the proof could be treated as an abetment to self-destruction drawing in section 306 of Indian Penal Code (IPC). Nonetheless, however section 497 got decriminalized, it kept on being treated as legitimate ground for divorce as indicated by the pronouncement of the then Chief Justice Deepak Mishra and justice A.M.Khanwilkar in the moment case.

In the moment case, petitioner was Mr. Joseph Shine, a hotelier from Italy, however he was actually unaffected by the law. His request was acknowledged in the perspective on the locus standi (right or ability to bring an activity or to appear in a court) in Public Interest Litigation (PIL) cases with a goal of government assistance of the society and to get justice the society.

The petitioner contended that the law denies women of the fundamental right to sexual self-sufficiency. While government, then again, contended it as a fundamental element to keep up with the holiness of marriage, albeit additionally perceived section 497 as prejudicial against women and proposed to make the offense of adultery as sexually impartial.

In the case it was held that criminalization had confined the accompanying rights of women:-

  • Right to sexual self-governance as given under Article 21(Right to life) of the constitution.
  • Right to sexual articulation as given under Article 19(Right to opportunity) of the constitution.
  • Right to equality as given under Article 14(Right to equality) of the constitution.
  • Right against separation as given under Article 15(Right against segregation) of the constitution.
  • Obstruction of state in close to home issue of a person. Be that as it may, this applies for the two men just as women.

Justice Indu Malhotra expressed Section 497 as being violative of article 14, 15 and 21 of the constitution[2]. As per her,

“A legislation that sustains such generalizations seeing someone, and systematizes separation is a reasonable infringement of the fundamental rights ensured by Part III of the Constitution. There is, in this way, no defence for the duration of Section 497 of the IPC as outlined in 1860, to stay on the rule book.”

The Hon’ble court additionally viewed the precedents prior to showing up in the choice, as Sowmithri Vishnu v. UOI 1985[3], Yusuf Abdul Aziz v. The State of Bombay 1954 [4] and V. Revathi v. UOI 1988[5]. However these cases were excused by the then Hon’ble passes judgment on making adultery a criminal offense certainly these cases prepared of decriminalization for the situation Joseph Shine v. UOI.

On account of Yusuf Abdul Aziz v. Territory of Bombay[6], 1954, the petitioner addressed whether section 497 of IPC ultra vires Article 14 and 15 of Constitution. It was held that Section 497 of IPC doesn’t disregard any article of the Constitution. Be that as it may, petitioner set forth a few focuses which were taken in Joseph Shine’s case as the offense of adultery must be submitted by man however without any provision to the opposite the lady would be rebuffed as abettor yet he last sentence of Section 497 of IPC denies it as, in that case wife is not punishable as abettor.

Adultery As A Ground Of Divorce

Supreme Court proposed that adultery could be a ground of divorce and convey common punishments, however not a criminal offense.

As indicated by the Hindu Marriage Act, 1955 Section 13(1), any intentional sex with a not the individual spouse, is a ground for divorce. Section 10 of the Hindu marriage Act, 1955 characterizes adultery as a ground for judicial separation.

Section 22 of the Indian Divorce Act made the provisions of judicial separation on the ground of adultery.

The Special Marriage Act, 1954, expressed that if an individual had intentional sex outside the wedlock, is a substantial ground for divorce.

Constituional Validity Of Section 497 Of Ipc

Judicial way to deal with the criminal offense of adultery has been scrutinized by the committee on the state of ladies in India (CSWI).[7]

It was tested as being violative of the constitutional command of equality. Constitutional Legitimacy similarly has been addressed numerous multiple times. The Supreme Court maintaining the constitutional legitimacy of S.

497 IPC saw that “Section 497 doesn’t visualize the indictment of the wife by the husband for adultery. The section gives explicitly that the wife will not be culpable even as an abettor. No complaint would then be able to be made that the section doesn’t permit the wife to arraign the husband for adultery. The examination of the law obviously is that the wife, who is associated with an unlawful relationship with another man, is a casualty and not the creator of the wrongdoing. The offense of adultery as characterized in section 497 is considered by the legislature as an offense against the holiness of the marital home, a demonstration which is submitted by a man. Hence, those men who contaminate that sacredness are brought inside the net of law. Law just makes a particular sort of extramarital relationship an offense, the connection between a man and wedded lady the man alone being the guilty party. A faithless husband hazards, or maybe, welcomes a common activity by the wife for separation. Of course they add that “Law doesn’t give opportunity upon husbands to be lecherous by running around with unmarried ladies”. In the event that he does as such he risks his wife bringing an activity for separation.

Managing the protection contention that ladies, both hitched and unmarried, have changed their way of life over the years and there are situations where they have destroyed the harmony and bliss of other conjugal homes, the Court further noticed: “We trust this isn’t excessively correct however an under comprehensive definition isn’t really unfair.

The supposed change in ladylike mentality, for great or then again terrible, may even-handedly connect with the consideration of law-producers when

change of punitive law is under taken. They might expand the meaning of ‘Adultery’ to stay up with the moving occasions.

Yet, up to that point law should stay for what it’s worth. The law, for what it’s worth, does not insult either Article 14 or Article 15 of the Constitution”. Bigamy is denied in Criminal law (Sec 494 IPC). Considering the reality Hindu ladies are still socially separated in a male-ruled society and both polygamous relationships and youngster relationships actually occur in remote country regions either because of obliviousness of law or due to long winning social practices. Individuals have contended that there is a lot of weight in the perception of the Supreme

Court’s perception that maybe time isn’t yet ready to rebuff ladies for adultery and that, the wife who is enticed is actually the person in question and not the creator of the wrongdoing.

Conclusion

I feel that the entire article encompasses an improper utilization of word “adultery” in legal framework.

Adultery in evident sense is an offense against ones companion, breach of trust, and house and along these lines, offense of adultery as it is, isn’t covered under S. 497 IPC by any means, as neither the adulterer spouse nor adulteress wife, whatever the case might be, are culpable. The law anyway characterizes punishment for an outsider in a roundabout way engaged with the offense, that too just male lover for breech in holiness of marital house. Criminal law eyes the offense submitted by guys and females with a distinction, an oppressive disposition towards wedded female (spouse), and her lover.

With changing social discernments, the job of Judiciary is extremely basic in translations of the constitution and the changes. Taking into account that the female is socially denied and powerless in most piece of the nation, as noticed by the Hon’ble Supreme Court, certainly her position needs to be reinforced. Female (spouse) ought to have equivalent right as male (spouse) to sue the female adulteress for breech in holiness of her marital house.

Subsequently, this prejudicial law should be altered. A public discussion ought to be welcomed and agreement ought to be framed in regards to this biased law. The issue of respect and the privileges of the spouse as a person, that are compromised under S. 497 IPC should be tended to. The

arrangement of adultery being a criminal offense ought to henceforth be erased or changed keeping in see the issues of fairness furthermore, respect of ladies.

“It appears to be generally uncalled for a man to need from a spouse the celibacy he doesn’t himself practice”.

Suggestion

As indicated by me, decriminalization of adultery is a productive advance towards a reformist society by striking down the law which denied the poise of ladies. It is a degenerate conduct as it is unscrupulous and shameless as it disregards the sacredness of the foundation of marriage which is accepted to be a holy organization of society.

Nonetheless, this is simply in the midway. Our nation actually needs to cover far to kill discrimination and to guarantee sexual orientation balance. I’m of the assessment that society ought to likewise ascend from the man centric attitude.

To guarantee the holiness of marriage which as per me is a need in each viewpoint whether being religious, legal or spiritual, everybody ought to be more cautious and delicate towards the foundation of marriage and family framework as it is the fundamental unit of society.

REFERENCE

  • Legalservicesindia.com
  • Researchgate.net
  • Blod.ipleaders.in

[1] http://lawmentor.in/2022/03/16/article-on-adultery-detailed-analysis/

https://www.scconline.com/blog/post/2019/02/21/adultery-s-497-ipc-and-s-1982-crpc/

[2] https://www.sci.gov.in/supremecourt/2017/32550/32550_2017_Judgement_27-Sep-2018.pdf

[3] AIR 1985 SC 1618

[4] AIR 1951 Bom 470

[5] AIR1988 SC 835

[6] AIR 1951 Bom 470

[7] Towards Equality, Report of the Committee on the Status of Women in India, Government of India, 1975.

Articles

EMERGENCY PROVISIONS: ARTICLES 352- 360

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This Article is written by Meena P, a student at Government Law College Trivandrum


A state of emergency India refers to a period of governance under an altered constitutional setup that can be proclaimed by the President of India, when the consultant group perceives and warns against grave threats to the nation from internal and external sources or from financial situations of crisis. Part XVIII of the constitution contains the emergency provisions which was adopted from the Weimer Constitution of Germany. These emergency provisions authorize the center to have power on the state. There are three types of emergency provisions;

a. National emergency
b. State emergency
c. Financial emergency

ARTICLE 352 – NATIONAL EMERGENCY

Background

Article 352 in The Constitution of India 1949 states that “If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation”. The president has the power to proclaim National Emergency where the security of India or any part of the territory is threatened on the grounds of war, external aggression or internal rebellion. It is essential that a grave situation must occur in order to declare an emergency. National emergency in India was declared 3 times in the following cases 1962 China war,1971 Pakistan war and Internal disturbances during Indira Gandhi’s tenure.

When an emergency is proclaimed ?

The union is given the power to direct and the parliament is allowed to legislate any state. The president is allowed to suspend Article 19(freedom of speech which is the right to express one’s opinion freely without any fear). The president is authorized to restrict the citizen’s right to move to the courts for the enforcement of fundamental rights except Article 20 and 21.

Revocation of National Emergency

The President can revoke the implementation of emergency anytime without the approval of the parliament. The president can revoke the emergency when he is confirmed that the threat has passed. If the Lok Sabha disapproves the continuance of the emergency, then the president can revoke the emergency The implementations of these powers during the proclamation of emergencies have certain limitations

  1. The president is not provided with the power to alter or issue the proclamation unless it is directed by the union in writing to do so
  2. The proclamation shall not extend one month unless it is passed by both the Houses of Parliament, by the majorities of total membership each house and two-thirds of those present and voting. This proclamation must be confirmed on a six-month gap following the same procedure aforementioned
  3. A special session of Lok Sabha must be called within a span of 14 days if 1/10th of the members of the Lok Sabha submits in writing their disproval of invoking the emergency
  4. The laws that restrict the rights mentioned in Part III of the constitution must contain a ‘recital ‘stating clearly that they are in relation to the proclamation of emergency

AMENDMENTS

✓ 38th amendment 1975- This allowed the president to proclaim the emergency on different grounds despite an emergency is already under operation

✓ 42nd amendment 1976- The 42nd amendment allows the president to modify the national emergency. Earlier only imposition or revocation was possible

✓ 44th amendment 1978:

I. The term internal disturbance was replaced by the armed rebellion by the 44th amendment.
II. The period of proclamation was reduced from 2 months to 1 month
III. This amendment helped to prevent the misuse of emergency by the executive

NATIONAL EMERGENCY AND ITS EFFECTS

The suspension of fundamental rights mentioned in Article 19 as provided in the Article 358 of the Constitution and Article 359 deals with the suspension of other Articles except Article 20 and 21. The president is also given the authority to suspend the distribution of revenues and resources between the state and center. The state governments are brought under the control of the center which gives power to the center to direct the instructions. The parliament assumes concurrent state legislative power on state subjects and the laws enacted by the parliament shall end after the expiry of six months. In Minerva Mills case (1980), the Supreme Court held that National Emergency can be challenged in the court
on the ground of malafide or that the declaration was based on wholly extraneous and irrelevant facts.


ARTICLE 356 – STATE EMERGENCY ( Failure of Constitutional Machinery)

If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution. India borrowed this provision from Section 93 of Government of India Act. This is also known as President’s rule. This provision was added in the constitution to preserve the democracy and federalism even though it faced many challenges and the British government was forced to suspend it. Pakistan has also borrowed this provision from the Government of India Act 1935. Every state in India except two states, Chhattisgarh and Telangana has been under a state of emergency at some point of time or the other Recently in 2018 Chief Minister Mehbooba Mufti resigned following withdrawal of support by coalition
partner BJP.

The state was under President’s rule from June 19 to October 30. On October 31, J&K was split into two Union Territories — Jammu and Kashmir, and Ladakh — and that ended the President’s rule by default. Sarkaria Commission prepared report to upgrade the center-state relations and recommended that the state emergency shall only be used in the rarest of rarest cases. The commission stated that when the state fails to rectify all the constitutional machinery in the state then only Article 356 shall be imposed

AMENDMENTS

✓ 42nd Constitution Amendment Act, 1976 extended the period of state emergency from 6 months to 1 year.

✓ 44th Constitution Amendment Act, 1978 reverted back the operation of state emergency to 6 months

STATE EMERGENCY AND ITS EFFECTS

The state government is dismissed and the center is given the authority to the rule the state. State assembly legislature is dissolved. As in the case of National emergency where the distribution of revenue between the state and the center is impacted, there is no effect on the same when it comes to state emergency The case of SR Bommai V Union of India dealt with the imposition of Presidents rule in the state by reviewing the reports submitted by the Sarkaria Commission, report. This case dealt with the powers of the center or the Union government at times of the state emergency.

ARTICLE 360 -FINANCIAL EMERGENCY

If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect. The proclamation of financial emergency must be passed by both the houses of parliament within two months from the date of issue.

The financial emergency was never declared in our country. The center shall have control over the financial matters of the state. The salaries and allowances of the persons serving under the union, judges of supreme court and high court will be subjected to reduction in their salaries. Reservation of all money bills or other financial bills for the consideration of the President after they are passed by the legislature of the State. By the proclamation of Financial Emergency, the powers of the state and the union will be under the control of the center and the center will become powerful. The financial independency of the state shall undergo curtailment and the President will become the ruler or the dictator. The fundamental rights would be infringed which invalidates the constitutional structure of our economy

Articles

National Green Tribunal: Constitution, Functions and Power

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This Article is written by Saumya Tripathi, a student of Shri Ramswaroop Memorial University

Introduction

The National Green Tribunal (‘NGT’) was established on 18th October, 2010 under the National Green Tribunal Act 2010. The purpose behind the establishment of NGT is effective and expeditious disposal of cases related to environmental dispute involving multi-disciplinary issues. After the establishment of NGT, India became the third country to have a specialised body that deals with environmental related issues followed by Australia being the first and New Zealand being the second. The Principal Bench of NGT is situated in New Delhi (North zone) with the circuit benches at Chennai (South zone), Bhopal (Central zone), Pune (West zone) and Kolkata (East zone).

The National Green Tribunal is India’s first dedicated environmental court with a wide jurisdiction power. Its jurisdiction is not only limited to deal with the violation of environmental laws. Instead, it allows the tribunal to focus on providing relief compensation and restoration of the ecology. Thus, the tribunal plays a significant role in environment protection.

Some of the major objectives of the National Green Tribunal (NGT) are as follows:

  • To ensure conservation of the environment, forests, and other natural resources.
  • To provide effective and speedy disposal of cases.
  • To provide compensations and relief for to whom the damage is caused due to environmental degradation.
  • To ensure that environmental related laws are obeyed and act as a watchdog in case of any violations.
  • To prevent the harm caused to the environment due to government or private actions.
  • To work towards spreading awareness about various environment related laws and the issues prevalent in the society. 

Background

The Apex Court of India in Oleum gas leak case first time realized the need for a national tribunal that addresses matters related to environmental protection. Later, the Law Commission of India in 2003 recommended in its 186th report that the government needs to constitute special environmental courts, to deal with multi-disciplinary issues relating to protection of environment, which would have members with judicial or legal experience assisted by the members with technical knowledge.

The National Green Tribunal was formed in the year 2010 under Section 3 of the National Green Tribunal Act, 2010. It is a statutory body. Under the Indian Constitution, Article 21 and Article 323(B) forms the base for the establishment of Though, this tribunal. As under Article 21 the Right to life and personal liberty include right to clean and healthy environment while the other article 323(B) provides for the establishment of tribunals. Though, before this act there were existed two acts namely National Environmental Tribunal Act, 1995 and National Environmental Appellate Authority, 1997, for the same purpose of establishing specialised environmental courts. But the authorities failed to achieve its objective and became defunct. Failure of these acts lead to the realization of having more empowered and strengthened authority to dispose environmental related disputes. Therefore, the National Green Tribunal was established under NGT act, 2010. It has replaced the National Appellate Authority.

Globally, the need for the establishment of a central specialised agency for the timely disposal of environmental disputes was first realised in the Stockholm Declaration of 1992. The declaration was adopted at the Rio de Janeiro summit which was held in 1992, by the United Nations (also knowns as United Nations Conference on Conservation of Environment and Development). This summit highlighted the need of a national forum that addresses issue related to environmental protection adequately. The Rio de Janerio summit played a major role in establishment of a national forum in India that specifically deals with environmental related disputes and provides reddressal for the same. India’s commitment towards the Rio summit paved a way for the establishment of such forum.

The necessity for such specialised body was felt most by the Supreme Court of India after the pronouncement of four landmark judgements (namely the M.C. Mehta v. Union of India, 1986, Indian Council for Environmental-Legal Action v. Union of India, 1996, A.P. Pollution Control Board v. M.V. Naidu, 1992 and A.P. Pollution Control Board v. M.V. Naidu, 2001). The Apex Court felt that the interpretation of environmental laws requires a different agency consisting of experts in the relevant field.

Constitution and Structure

Section 3 of National Green Tribunal Act, 2010 provides for the establishment of National Green Tribunal. It states that the Central Government shall establish a Tribunal known as National Green Tribunal to exercise the jurisdiction, power and authority conferred on such tribunal by or under this act through notification in the Gazette of India.

Section 4 of the National Green Tribunal Act, 2010 provides for the composition of the tribunal. The tribunal will consist of following members: –

  • A full-time Chairperson.
  • Judicial Members not less than 10 and maximum up to 20.
  • Expert Members not less than 10 and maximum up to 20.

Section 5 provides for the qualifications of such members.

  • Chairperson shall be a person who is or has been a Supreme Court Judge or a High Courts Chief Justice.
  • Judicial Member shall be a person who is or has been a High Court’s Judge.
  • Expert Member shall be member with experience and qualification in the technological and scientific field or practical experience in matters related to the environment.

Section 6 provides for the appointment of Chairperson, Judicial Members and Expert Members.

  • The Chairperson, Judicial Members and Expert Members of the tribunal shall be appointed by the Central Government.
  • Central Government after consulting Chief Justice of India appoints the Chairperson of the tribunal.
  • For the appointment of Expert and Judicial Members of the tribunal a Selection Committee shall be formed by the Central Government

Section 7 provides for the tenure of office for all members including chairperson.

  • They shall hold office for the term of 5 years.
  • The Chairperson and Judicial member, if he is a Supreme Court Judge, shall not hold office after 70 years of age. In case, if he is a Chief Justice of High Court or High Court Judge then he shall not hold office after 67 years of age.
  • They Expert Member can hold office only till 65 years of age.
  • They are ineligible for reappointment.

Powers of the National Green Tribunal

The National Green Tribunal has the power to hear all civil cases relating to environment that are linked to the implementation of all the laws listed in Schedule I of the NGT Act, 2010. Any violation or any order given by the government with respect to these laws if not proper can be challenged in the NGT and will be decided there. The laws are mentioned below:

The Water (Prevention and Control of Pollution) Act, 1974

The Water (Prevention and Control of Pollution) Cess Act, 1977;

The Forest (Conservation) Act, 1980;

The Air (Prevention and Control of Pollution) Act, 1981;

The Environment (Protection) Act, 1986;

The Public Liability Insurance Act, 1991;

The Biological Diversity Act, 2002.

The National Green Tribunal has been barred from hearing any cases relating to the Wildlife (Protection) Act, 1972, the Indian Forest Act, 1927 and various laws enacted by States relating to forests, tree preservation and various other laws.

The National Green Tribunal has jurisdiction to determine all the cases involving substantial questions regarding the environment and its protection and also legal rights associated with it.

The tribunal, being a statutory authority, not only exercises original jurisdiction on filing an application but also has appellate jurisdiction through which it hears appeals as a Court.

The tribunal is not bound by the procedure mentioned under the Civil Procedure Code, 1908 and it applies the principles of natural justice while deciding any matter.

NGT will consider the following principles of sustainable development, the precautionary principle and the polluter pays principles while settling any dispute.

The National Green Tribunal, by an order can provide the following (section 15 of the National Green Tribunal Act,2010)

Compensation and relief to all the victims of pollution and environmental damage including accidents which happened while handling hazardous substance.

Restitution of a damaged property.

Restitution of the environment for area or areas which the tribunal may think fit.

An appeal can be filed against any order given by the tribunal before the Supreme Court of India within ninety days from the date of communication of the order regarding the case.

Functions of the National Green Tribunal

It is a body that has proficiency in handling multi-disciplinary issues concerning to environment and its protection.

The foremost objective of the Tribunal is to provide speedy trials of the environment-related matters and help in lessen the burden of pending cases in the higher courts.

It is mandatory for the tribunal to dispose the environment-related matter within 6 months of the filing of the complaint.

The National Green Tribunal is not bound by the procedure of Code of Civil Procedure. They have the power to regulate their own procedure (section 19 of NGT Act ,2010) and adopts the principle of natural justice while administering justice.

The National Green Tribunal is not bound by the rules mentioned in the Indian Evidence Act,1872.

It is important for the tribunal to consider principles such as sustainable development at the time of awarding compensation or giving orders.

It is required for the tribunal to always bear in mind the fact that whoever pollutes the environment is liable to pay i.e., Polluter Pay Principle.

All the proceedings before the National Green Tribunal shall be in accordance with the proceedings mention within the sections of the IPC.

Important Judgements of the NGT:

Some of the important judgements of the NGT are discussed below: –

  • Almitra H. Patel & Ors. Vs. Union of India and Ors.

A PIL was filed under Article 32 of the Constitution. The PIL highlighted lack of proper system in India for solid waste management. The tribunal saw it as major problem and issued over 25 directions & guidelines after hearing the case. All the states were asked to strictly follow Solid Management Rules, 2016 the tribunal and prohibited open burning of waste on land.

  • Samir Mehta Vs. Union of India and Ors.

In this case the tribunal stressed upon the need for protection of marine ecosystem and aquatic world. The complaint emphasised the serious damage caused by the coal, fuel oil and diesel carrying ship. The tribunal invoked “polluter pay principle” and held that negligence was caused on the part of respondents and are liable for the damages caused.

  • Ms. Betty C. Alvares Vs. The State of Goa and Ors.

In this case the tribunal held the decision in favour of foreign nationality who made complaint regarding illegal construction in Goa. The tribunal disagreed on the objection raised that a foreigner has no right to file a petition before tribunal and held that a foreign national can also approach the court.

  • Save Mon Region Federation and Ors. Vs. Union of India and Ors.

A federation along with a social activist filed a case against permitting a hydro project which was violating the Schedule I of Wildlife Protection Act, 1972 as it was very close to a wintering site of Black-necked Crane (a type of bird). The tribunal held that the such project must be terminated and gave order to cancel its clearance.

  • The Art of Living’s World Culture Festival Verdict

In this case, a petition was filed before the NGT, Principal Bench, By Sri Manoj Mishra against Art of Living Foundation. The bench dealt with two important questions. Firstly, Whether the foundation is responsible for causing damage to Yamuna Floodplains. Secondly, whether they are liable to pay compensation or fine for such damage.  The tribunal held the foundation responsible for the damage caused by the World Culture Festival to the Yamuna floodplains in 2016. The tribunal imposed penalty of 5 crores on the foundation for the restoration of damaged caused.

Suggestion

The two most important acts, Wildlife Protection Act, 1972 and Indian Forest Act,1927 is out of the jurisdiction ambit of NGT. Subject matter of both of these acts hold great importance in balancing the environment. The decrease in forest areas is well known fact. As well wildlife crime is evident in India such as their illegal trade or animal poaching. These activities threaten the balance of ecology. In such scenario, keeping these acts beyond the jurisdiction of NGT is not logical. Including these acts within jurisdiction area of NGT widens its scope of working. And NGT as a watchdog will provide more stability to these acts in its implementation and working.

Conclusion

The concept of National Green Tribunal is very much needed. The rapid increase in environmental degradation undoubtedly demand for such body which specifically addresses environmental issues and takes the initiative to protect the environment. NGT monitors and ensures that the law related to environment strictly obeyed and also speedy and effective trials of environmental related matter is delivered. The Expert Members in the tribunal empowers this body as their knowledge will help to understand the details of environment issues and its technicalities while deciding a case. It will help the tribunal to come up with innovative and better solutions for environmental problems striking the balance between law and environment. Therefore, NGT plays a very significant role in protecting and balancing the environment.

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Live-in Relationship And Indian Judiciary

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This Article is Written by Asha. K, Assistant Professor in Law at Shri Balaji College of Law, Bengaluru


The Supreme Court threw its weight behind the live in relationship on 23 Mar 2010, observing that for a man and woman in love, to live together is part of the right to life, and not a “Criminal Offence”.

“If two people, man and woman, want to live together, who can oppose them? What is the offence they commit here? This happens because of the cultural exchange between people,” a special three-judge bench of Chief Justice of India (CJI) K. G Balakrishna , Justice Deepak Verma and B. S Chauhan observed. The court was hearing a batch of petitions filed by actress Khusboo to quash 22 FIR’s against her by Tamil activist groups and forums for her alleged comments on pre-marital sex in interviews five years ago.

“If living together is an offence, then the first complaint should be filed against the supreme Court because we have permitted living together,” the court said. The bench was referring to a 2006 judgment in which the supreme directed the administration and police throughout the country to protect runaway couples from harassment, and to initiate action those resorting to violence.

“It is part of right to life to go away with someone you love,” the bench said. The Supreme Court earlier stayed at Madras High Court order of April 2008, which allowed criminal proceedings against the actress.

Khusboo was alleged to have said there was nothing wrong in “Sex before marriage”. Provided were careful about pregnancy and sexually – transmitted diseases. Her detractors argued that the implied advice to the educated male to not expect virginity from modern girls was “Offensive” and a source of “Public nuisance”.

Meaning of live in relationship

Live in relation i.e Cohabitation is an arrangement whereby two people decided to live together on a long term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married. Today, cohabitation is common pattern among people in the Western world. People may live together for a number of reasons, these may include wanting to test compatibility or to establish financial security before marrying. It may also be because they are unable to legally marry, because for example same-sex, some interracial or interreligious marriages are not legal or permitted. Other reasons include living with someone before or polyamorists to avoid breaking the Law, a way to avoid the higher income taxes paid by some two –income married couples (in the United Sates), negative effects on pension payments (among older people), and philosophical opposition to the institution of marriage and seeing little difference between the commitment to live together and the commitment because they see their relationships as being private and personal matters, and not to be controlled by political, religious or patriarchal institutions.

Some couples prefer cohabitation because it does not legally commit them for an extended period, and because it is easier to dissolve without the legal costs often associated with a divorce. In some jurisdictions cohabitation can be viewed legally as common-law marriages, either after the duration of a specified period, or the birth of the couple’s child, or if the couple consider and behave accordingly as husband and wife.

Position in India

In India, cohabitation had been taboo since British rule. However this is no longer in big cities, but is still often found in rural areas with more conversation values. Female live-in partners have economic rights under Protection of Women from Domestic Violence Act, 2005.

The Maharashtra Government in Oct 2008 approved a proposal suggesting a women involved in such a relationship for ‘reasonable period’ said should get status of a wife.

The National Commission for women recommended to ministry of women and child development June 30, 2008 that definition of wife as described in Sec. 125 of Cr. P.C which deals maintenance, suggested that it include women involved in a live in relationship Aim of the recommendation was to harmonizing other sections of Law with protection of women from Domestic Violence Act that a live in couple’s relationship on a par with that between a legally married husband and wife.

The move has been came after justice malimath committee of the SC recommended that all states turn this law. The committee observed that “if man and woman are living together as husband and wife for a reasonable period the man shall be deemed to have married the woman.”

The malimath committee had also suggested that the word ‘wife’ under Cr.P.C be amended to include a woman living with the man like his wife’ which means the woman would also be entitled to alimony.

In Payal Katara V. Superintended Nari Niketan Kandri Vihar Agra and others AIR 2002, the Allahabad High Court ruled out that “a lady of about 21 years of age being a major, has right to go anywhere and that anyone- man and woman even without getting married can live together if they wish”.

In Patel and others case (2006) 8 SCC 726 the apex court observed that live-in- relation between two adult without formal marriage cannot constructed as an offence.

In Radhika V, State of M.P AIR 2008, the SC observed that a man and woman are involved in live in relationship for a long period, they will treated as a married couple and their child would be called legitimate.

In Abhijit Bhikaseth Auti V. State of Maharashtra and others on 16.09.2009, the SC also observed that it is necessary for woman to strictly establish the marriage to claim maintenance under sec. 125 of Cr.P.C. A woman living in relationship may also claim maintenance under Sec 125 CrPC.

On 23.03.2010 the honourable SC in Khusboo’s case was of the opinion that entering live in relationship cannot be an offence. A three judge bench comprising Chief Justice K.G Balakrishna, Deepak Verma and B.S. Chauhan said that “when two adult people want to live together, what is the offence. Does it amount to an offence? Living together is not an offence, it cannot be an offence. Living together is a fundamental right under Article 21. Constitution of India”.

In another leading case of Koppisetti Subbharao v. State of A.P., the Supreme Court held that the classification “dowry” has no magical charm. It alludes to a request of cash in connection to a conjugal relationship. The court has not accepted the contention of the defendant that since he was not legally married to the complainant, Section 498? A did not make a difference to him in a stage ahead in shielding the lady from badgering for dowry in a live-in relationship.

In Chanmuniya v. Chanmuniya Kumar Singh Kushwaha where High Court declared that appellant wife is not entitled to maintenance on the ground that only legally married woman can claim maintenance under Section 125 CrPC. But the Supreme Court turned down the judgment delivered by the High Court and awarded maintenance to the wife (appellant) saying that provisions of Section 125 CrPC must be considered in the light of Section 26 of the Pwdva, 2005. The Supreme Court held that women in live-in relationships are equally entitled to all the claims and reliefs which are available to a legally wedded wife.

A relationship like marriage under the 2005 Act must consent to some basic criteria. It provides that the couple must be of legal age to marry or should be qualified to enter into a legal marriage. It was also stated that the couple must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. Every kind of live-in relationships should not be covered under the Act of 2005. Simply spending a week together or a one night stand would not make it a household relationship. It additionally held that if a man has a “keep” whom he maintains financially and uses principally for sexual reasons or potentially as a slave then it would not be considered, as a relationship in the nature of marriage.

Lately, in a landmark case, Supreme Court dealt with the issue of live-in relationships in detail and also laid down the conditions for live-in relationship that can be given the status of marriage. On 26-11-2013 a two-Judge Bench of the Supreme Court constituting of K.S.P. Radhakrishnan and Pinaki Chandra Ghose, JJ. in Indra Sarma v. V.K.V. Sarma held that “when the woman is aware of the fact that the man with whom she is in a live-in relationship and who already has a legally wedded wife and two children, is not entitled to various reliefs available to a legally wedded wife and also to those who enter into a relationship in the nature of marriage” as per provisions of Pwdva, 2005. But in this case, the Supreme Court felt that denial of any protection would amount to a great injustice to victims of illegal relations. Therefore, the Supreme Court emphasised that there is a great need to extend Section 2(f) which defines “domestic relationships” in Pwdva, 2005 so as to include victims of illegal relationships who are poor, illiterate along with their children who are born out of such relationships and who do not have any source of income. Further, Supreme Court requested Parliament to enact a new legislation based on certain guidelines given by it so that the victims can be given protection from any societal wrong caused from such relationships.

Position in Abroad

With the Supreme Court declaring that the right to live together is a part of the right to life, it is necessary to look at the legal rights and obligations for live in couples around the world. While heterosexual couples who are live in relationship are called “Co-habitant”, same sex couples are legally defined as “Civil partners”. But the law on cohabitation rights is largely evolving and many participants are still unware of their rights and duties to each other.

Following are the guidelines given by Supreme Court:

1. Duration of Period of Relationship

Section 2(f) of the Domestic Violence (DV) Act has used the expression ‘at any point of time’, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

2. Shared Household

The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration

3. Pooling of Resources and Financial Arrangements

Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long-term investments in business, shares in separate and joint names, so as to have a long-standing relationship, may be a guiding factor.

4. Domestic Arrangements

Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or up keeping the house, etc. is an indication of a relationship in the nature of marriage.

5. Sexual Relationship

Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring, etc.

6. Children

Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long-standing relationship. Sharing the responsibility for bringing-up and supporting them is also a strong indication.

7. Socialization in Public

Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.

8. Intention and Conduct of the Parties

Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.”

Lately, a landmark judgment on 8-4-2015 by the seat comprising of Justice M.Y. Eqbal and Justice Amitava Roy, the Supreme Court decided out that couples living in live-in relationship will be presumed legally married. The Bench also added that the woman in the relationship would be eligible to inherit the property after the death of her partner.

Legal Status of Children Born Out of Live-in Relationship

The first time when the Supreme Court held the legitimacy of children born out of live-in relationship was in S.P.S. Balasubramanyam v. Suruttayan, the Supreme Court had said, “If a man and woman are living under the same roof and cohabiting for some years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.” Further, the court interpreted the status and legislation to an extent that it shows conformity from Article 39(f) of the Constitution of India which sets out the obligation of the State to give the children adequate opportunity so that they develop in proper manner and further safeguard their interest.

Dealing with the recent case on the legitimacy of children of such relationships, Supreme Court in Tulsa v. Durghatiya has held that a child born out of such relationship will no longer be considered as an illegitimate child. The important precondition for the same should be that the parents must have lived under one roof and cohabited for a significantly long time for the society to recognise them as husband and wife and it should not be a “walk-in and walk-out” relationship.

In another case Bharatha Matha v. R. Vijaya Renganathan, the Supreme Court held that a child born out of a live-in relationship may be allowed to inherit the property of the parents (if any) and therefore be given legitimacy in the eyes of law. We have seen that Indian judiciary in the absence of specific legislation have been protecting the rights of the children by giving law a broader interpretation so that no child is “bastardised” for having no fault of his/her own.

On 31-3-2011 a Special Bench of the Supreme Court of India consisting of G.S. Singhvi, Ashok Kumar Ganguly in Revanasiddappa v. Mallikarjun remarked that irrespective of the relationship between parents, birth of a child out of such relationship has to be viewed independently of the relationship of the parents. It is as plain and clear as sunshine that a child born out of such relationship is innocent and is entitled to all the rights and privileges available to children born out of valid marriages. This is the crux of Section 16(3) of the amended Hindu Marriage Act, 1955.

Conclusion and Suggestions

Live-in relationship is very popular now a days in India. Many young couples are living together without marriage. A long time ago it was strong social prohibition on live in relationship but these days youth thinks as compared to marriage, the level of commitment in live–in relationship is less. But society is framed with tradition and custom which are foundational pillars. There are so many disadvantages of live-in relationship like as:

(i) It resembles a pure form of high tech adultery and fragile.

(ii) There is no concept of husband and wife.

(iii) It is devoid of Religion, tradition and culture. There are ultimate suffers women and children. There is lack of commitment

(iv) There is no specific law on maintenance, succession, rights of child, custody relating to live in relation.

(v) There is no legal provision to secure tech future of a child born from relationship which has not been the shape of marriage. The Hindu marriage Act 1955 gives the status of a legitimate child to every child whether result of void, voidable or valid marriage. What will his position about proper and maintenance rights, not defined (vi) Rights responsibilities and obligations of parties are not defined.

(vii) What will the reasonable time when parties will treated as husband and wife, not clear.

(viii) Live in relationship can be dissolved at any moment. It cannot build safe and secure society

So humble suggestion is that above disadvantages should be checked. Live in relationship is individualistic and human rightist approach. Although the live in relationship is quite prevalent in western countries, but reality in India is different. Here marriage is still an institution which preferred over any form of union. Earlier through Domestic Violence Act, 2005 female of live in relationship were given protection, hence it was on the verse of acceptance by covering it under the ambit of legal term. Through live in was considered as disturbing the very social fabric but seeing the surmounting murder of such relationship the judiciary’s approach is welcome step.

In the author’s view, there must be a separate statute dealing with this current issue so that rights of living partners, children born out of such relationships and all those people who are likely to get affected by such relationship should be protected. Not all live-in relationships should be given legitimate status, but only those which satisfy certain basic requirements. At the same time, there should also be awareness among live-in partners regarding the legal consequences arising out of such living arrangement.

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Artificial Intelligence and Laws in India

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This Article is written by Yashi Kumari and Kriti Kumari, students of Indraprastha University

Introduction

Artificial Intelligence is the replication of human intellect which is done by the machines, mainly Mechanical Learning or Computer System. Artificial intelligence (AI) refers to competence exhibited by machines as compared to organic insight expressed by humans or non-humans. AI applications consists of forward-thinking web search browsers (e.g., google, Firefox), reference systems (such as YouTube, Flipkart, amazon), AI bot who understands human language (such as Alexa, Siri, Ira), cars without drivers (Tesla), and in tactical gamepad, competitors compete at the highest level. As devices become far more capable, tasks requiring “intellectual capacity” are frequently excluded from the definition of AI, a singularity is known as the AI effect. The use of artificial intelligence (AI) in the system of justice is still in its early stages, but it is gradually being incorporated by a number of countries, law firms, and judiciaries remarkably similar. It offers outlay answers to problems to solicitors by indicating out legal flaws in verdicts, assisting in the drafting of contract documentation, proper research, legal big data, and so forth. Likewise, AI can pave the way in decreasing the burden on the judiciary, particularly in cases involving misdemeanours, while leaving complex situations to be decided by court to issue.

Development across the World: History

Ever since inception as an academia in 1956, machine learning has gone through several phases of positivity, dissatisfaction, and finance reduction, accompanied by alternative ideas, achievement, and revived funding. During its history, AI research has been undertaken and rejected various methods, including replicating the brain, modelling human critical thinking, logic, database management system of knowledge, and trying to imitate animal behaviour. Over the first two dawn of the twenty century, remarkably arithmetic numerical machine learning experienced great success, and this method was extremely successful, assisting in the resolution of many complex challenges in industry and academia. 

Human intelligence “can be so described simply that a computer system can be made to recreate it,” according to the program’s founders. This raises ethical issues concerning the mind and the moral standards of creating artificial beings with human-like intelligence. Folklore, fiction, and principles have all addressed these issues since earliest times. AI, with all its incredible potential and ability, has also been proposed in speculative fiction and post structuralism.

IBM’s Chatbot Ross has indeed been incorporated among many legal firms nationally and internationally, especially in the United States, and is largely used to scrutinize contractual agreements, initiate legal work, and briefly review legal concepts, among other things. 

781 A. Atabekov, O. Yastrebov Provided the results of this study, the scholars would advise Russian legislators to look at it this way: – The probability of establishing a soul institute in the field of artificial intelligence, involved in designing specifications and rules of conduct that must be followed by holders and holders of humanoid agents, as well as by the humanoid agents itself. The establishment of an institution as the authoritative entity at the national level in the field of robotics, capable of determining the activities allowable for robots, while keeping in mind that the robot is a source of immense threat.

Current Position in India

However, there are no privacy and data protection policies in India, private data is protected under Sections 43A and 72A of the Information Technology Act. It, like the GDPR, contains provisions to reimbursement for improper release of information. The Confidentiality was declared a Basic Human right under the Constitution of India by the Apex Court in 2017.

Artificial intelligence has the potential to add 957 billion Dollars, or around 15% of India’s current gross investment, by 2035. In the following decade, System will be able to touch everybody’s life in some way. In 2018, the NITI Aayog (Policy Commission) initiated a number of AI-related programs.

The Ministry of Electronics and Information Technology introduced four committees to emphasize and evaluate difficulties related to AI. A Joint Parliamentary Committee is currently deliberating on the PDP Bill – Personal Data Protection Bill 2019 – which is based on a draught data security statute. The bill becomes law once it’s been passed through both houses of the parliament. In India, the advancement of AI adoption is outpacing the creation of regulations to govern it. Sectors are now starting to use AI technology to retrain their workforce. The apparently New Education Policy focuses on teaching coding to students’ rights beginning in Primary School. India will be a hotspot for innovative AI technologies.

Cyril Amarchand Mangaldas is possibly India’s first legal firm to use artificial intelligence (AI), which is mainly used to review and evaluate contract terms along with other legal documentation. Prevailing CJI SA Bobde has spoken about and endorsed for wider use of AI in the system of justice, particularly in document analysis and decision making. The Hon’ble Supreme Court Bar Association organized an event (SCBA). But even so, in developing countries such as India, the use of AI may be irregular due to an unwillingness to adapt to this new change. There seems to be concern that AI will have significant consequences in a workers supply economy, where the majority of the population are illiterate and poor.

AI and Cyber Security

AI and machine learning are quickly have become indispensable in network security, as these technology solutions are capable of rapidly assessing millions of data sets and detecting a wide range of cyberattacks, from malicious activity to questionable behaviour that may result in a phishing. AI is the optimum cybersecurity solution for organizations worldwide that want to emerge online. To perform effectively and safeguard their organizations from cyberwarfare, security specialists require strong backing from machine intelligence and technologically advanced such as AI.

Advantages

Some of the advantages are as follows:

1. AI Acquires More Competency Level

Artificial intelligence, as the term indicates, is astute, and it is using this capacity to advance network infrastructure over time. It employs ml algorithms to learn the behaviour of an enterprise network over time. It detects and groups trends in the network. It then detects any discrepancies or security attacks from the norm before answering.

2. Anonymous Concerns are Identified by Artificial Intelligence

An individual might not have been able to determine all of the menaces that a business confronts. Each year, cybercriminals launch massive amounts of attacks for a variety of reasons. Obscure attacks can wreak havoc on a system. Badly, they can have a substantial impact before users detect, recognize, and avert them.

As assailants experiment with new ploys ranging from complicated social mechanical to malware and viruses, contemporary remedies must be used to avoid them. AI has demonstrated to be among the most effective technologies for routing and preventing unknown attacks from wreaking havoc on an organization.

3. AI is Capable of Large-Scale Data

On a corporate server, there is a lot more going on. A classic semi business generates a lot of traffic. This indicates that the majority of data is exchanged between brand and the consumer on a frequent basis. This information must be safeguarded against remote attackers and operating systems. However, cybersecurity professionals are limited in their ability to inspect all visitors for perceived attacks.

4. Improved Adaptation

Data protection is critical to the security of a corporate servers. As previously stated, the typical organization faces numerous dangers on a routine basis. From being protected, it must discern, identify, and inhibit them. AI research can aid in security solutions by analysing and assessing current security protocols.

5. Enhanced Average Protection

From every now and then, the threats facing business connections change. Day after day, hackers play defensively. It is therefore difficult for a business to prioritize safety duties. You may just have to come to terms with a phishing scam and a Rejection of Business attack.

The above threats have similar capabilities, but you should initially understand what else to deal with. Operator error and carelessness are more serious threats that can make confidentiality a challenge. The remedy is to implement AI on your system to find all sorts of threats and assist you in prioritizing and preventing the others.

Disadvantages

The benefits brought up above constitute only a small portion of AI’s goal of improving cybersecurity. 

Even so, just like anything, there are a few drawbacks to utilizing AI in this ground. Institutions would require a lot more liquidity and capital investments to create and operate an AI system. 

Moreover, because AI systems are trained using sets of data, you will also have to collect a large number of sets of malware codes, – anti codes, and oddities. Obtaining all of these data sources requires an extensive investment that most businesses cannot access.

AI machines can produce inaccurate results and/or false positive rate in the absence of large datasets and occurrences. Obtaining flawed information from untrustworthy references can even end up backfiring. 

A further significant disadvantage is that cyber attackers can use AI to analyse their ransomware and unveil more malicious activities, which brings things to a whole new juncture.

Relevant Judgements and Cases

Shankar v. State Rep.

Decision: The Court stated that the statement of claim reported against the plaintiff cannot be nullified under the law that applies to the non-granting of punishment of court proceedings under Section 72 of the IT Act.

Christian Louboutin SAS v. Nakul Bajaj & Ors.

The Court was required yet if the defendant’s use of the petitioner’s mark, symbols, and picture is secured under Section 79 of the IT Act.

Decision: The Court determined that perhaps the defendant is more than just a mediator because the web application has complete knowledge about the products sold through its console. It characterises and then promotes third-party sellers of their products. The Court also held that an e-commerce platform’s full engagement would preclude it from the privileges given to intermediaries under Section 79 of the IT Act.

Review and Conclusion

Artificial intelligence in due diligence and practise may indeed be a domain which has yet to be recognized. There may well be differing views on whether AI will be cost efficient and beneficial in the legal field, and whether it will lead to unemployment. It is worth noting that AI eventually evolves from the intellect, so the idea of AI replacing humans remains uncertain. The goal of legal technology is to facilitate solicitors rather than to substitute them with robotic arms.

In science and medicine, even though the action is carried out using robotics equipment, the equipment is still functioned under the supervision of a competent doctor. Furthermore, while AI technology has an effect on employment, not all advocate jobs will be automated in the coming years. In the long run, homogeneous authority regulation may be required to control AI technology. We’re still a bit far away from the era of humanoid lawyers. There are numerous concerns about fair opportunities to the necessary technology for legal professionals. The higher education for a degree in law must be coherent, and technology must be supposed to teach to them in order for each of them to cope up with advanced technologies.

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Principle of Last Come, First Go

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This Article is written by Sharmishtha Trivedi, a student at Christ Academy Institute of Law

INTRODUCTION

A company even tough being an artificial in nature, but acts as a natural person in terms of legality. To provide social justice to workers of any company, is the primary motive for all and it should be followed by each and every company, irrespective of anything. Industrial Dispute Act is one of the legislations which is known for its welfare provisions. It is a legislation which is beneficial is nature for the company as well as for the workers. 

The process of downsizing is known as “Retrenchment”.

This Article deals with the process and basic understanding of Retrenchment and the principle of “Last Come, First Go”, under it. 

MEANING OF RETRENCHMENT

Retrenchment as defined under Section 2(oo) in which surplus staff is removed. “Retrenchment means the termination by an employer of the services of a workmen for reason, 

  1. Retirement of workmen on reaching the age of superannuation of the contract.
  2. Continued Ill Health.
  3. Unable to renew the contract.

ESSENTIALS OF RETRENCHMENT

In one of the famous case of Banaras Ice Factory, it was observed by the court that Termination of service of all workmen, of all industries which is not making profit will amount to retrenchment. It was held by the Hon’ble Court that the Closure of the business was made because the business was not running properly and was not able to make any profit. The court also made a clear distinction between the two terms.

In another case of State Bank of India v. Sundara Money, that Sundara Money’s discharge from his duty is a process of retrenchment and along with that the court gave another wide meaning for the term Retrenchment. Krishna Iyer J. was of the view that every termination should be said retrenchment so that the weak can be protected against the strong.

LAST COME, FIRST GO

The principle of Last Come, First Go is also known as Last In, first Out (LIFO). This principle means that a company or an organization should retrench employees in an ascending order. The principle of Last come, first Go is a way of carrying out the retrenchment exercise when there is a need to discharge some staff or employees from their duties whose service are no longer required by the company.

RETRENCHMENT PROCEDURE

Section 25(g) of the Industrial Disputes Act talk about the procedure of retrenchment. The section becomes applicable only if all the conditions laid down are fulfilled or satisfied:-

  1. The person claiming protection should be a workman as defined in section 2(s);
  2.   He should be a citizen of India; 
  3.  The “industrial establishment” employing such workman must be an “Industry” under sec 2(j)
  4.  He should belong to a particular category of workmen in that establishment; and 
  5.  There should not be an agreement between the employer and the workman contrary to the procedure of “last come first go.”

In the case of Swadeshi Mitram, the issue which was put forward in front of the court was whether section 25(g) takes into consideration the reasons recorded and whether the reasons have to be satisfactory?

The court held that “ Yes, the reason has to be satisfactory else the retrenchment which took place will be considered as mala fide in nature or an unfair labour practice. 

UNDERSTANDING THE LIFO PRINCIPLE

The principle of Last Come, First Go is statutorily incorporated in Section 25-G of the Industrial Disputes Act, 1947. If a case of retrenchment is made out, the employer has the power to decide which employee should be retrenched. The rule of “Last Come, First Go”, comes with an intention to provide a healthy safeguard to the workers if any discrimination happens in the workplace with regard to retrenchment.. The rule of “Last Come, First Go”, has to always be complied with for the validity of the retrenchment and compensation.

PURPOSE OF USING THIS PRINCIPLE

The main purpose of using this principle as a measure is to provide with healthy safeguard to the workmen and help them from not becoming the victims in their own work company. sometimes, a company finds themselves in a position where they have no other option than to downsize their company workmen. To remove or reduce the number of employees who are not needed for the company at that time, the company can use the measure of retrenchment but this measure cannot be used vaguely without any proper justification or reason. One of the procedures through which the process of retrenchment can be done is through the principle of LIFO that is, ‘Last In, First Out’.

Section 25-G of the Industrial Disputes Act insists on the rule of ‘Last Come, first go’ and discusses on being applied category wise. Therefore, this is to say that those who fall in the same category shall suffer retrenchment only in accordance with the principle of ‘ Last Come, First Go.’ Where the seniority list of particular workmen is the same, there is a telling circumstance to show that they fall in the same category. 

In the year 1980, Supreme Court in the Case of Jorehaut Tea Co., out of 23 workmen 16 were retrenched in accordance with section 25-G of the Industrial Disputes Act, 1947 but the remaining of 7 workmen were retrenched not in accordance with the section 25-G. 

EFFECT OF DEPARTURE FROM LIFO METHOD

If any retrenchment has happened who has violated the principle of “Last Come, first Go”, it will be declared as invalid unless such deviation is supported by a valid and justifiable reason. If any workmen is retrenched illegally or without any justifiable reason then he/she is entitled either for reinstatement of for compensation of  wrongful retrenchment. 

BURDEN OF PROOF

In the case of “Last Come, First Go” the burden of proof is always upon the employer. 

M.S. Om Mills &Oil Seed Exchange

In the case of M.S. Om Mills &Oil Seed Exchange, the Supreme Court observed that the principal of “Last Come, first go” is not a universal principal and can be departed. Management is given discretion on deportation , the only requirement is that there has to be a reason and the reason of retrenchment should be in good faith. If the retrenchment happens only to infringe the rights of the workers then it will bring labour unrest and will be termed as mala fide in nature.

The intention of this principle of “Last Come, first Go”, is to bring equality among the workers working in an industry and that there is no partiality happening between them. If they are deviating from this rule then they have to provide with a specific reason , else the retrenchment will be considered as mala fide.

HARJINDER SINGH’S CASE

In the Harjinder Singh’s Case the question of employer retrenching the workmen against the rule of “Last Come, First Go” came up for consideration. The employer as discussed above, is expected to adhere with this principle of the Act. Violation of social justice occurs at two stages- 

  1. Firstly- Not sticking to the principle of ‘last come, first go’ i.e. the junior most person in the cadre shall face retrenched and the rule of seniority to be followed, which would be applicable even to daily wage workers. 
  2. Secondly, not providing opportunity for re-employment of such retrenched workman, who has a preferential right of reemployment. 

The court gave a long judgement in this case and stated the importance of the Principle, “Last come, first go”. This decision is viewed as a substantial contribution to the topic of social justice.

ADVANTAGES OF LIFO PRINCIPLE

  1. It helps the employer in carrying out the retrenchment procedure.
  2. It avoids partiality with regard to workers.
  3. It gives a privilege to the most senior worker of the company.

DISAVDANTAGES OF LIFO PRINCIPLES

  1. It is a principles which work against the young workers.
  2. It denies the opportunity of younger people to learn and come forward in the company.
  3. Negatively impacts the new minds to come forward.

CONCLUSION

From the above discussion, it is made clear the importance of “Last Come, First Go” principle and why it should be followed as a beneficial piece of principle for social welfare. To avoid any sort of biasness this principle was incorporated and shall be used by the employer of an industry.

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Revenge Is Not Justice: A Socio Legal Analysis On Encounter Killings

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This Article is written by Aleena Rose Jose , Anna Biju and Lakshmi S Panicker, students of Government Law College, Ernakulam

UP gangster and notorious criminal boss, Vikas Dubey with over 60 criminal cases charged against him was shot dead in an ‘alleged’ encounter on 10th July, 2020, while ‘allegedly’ trying to escape from custody. He was being taken from Ujjain to Kanpur by UP Special Task Force (STF), and on the way the vehicle carrying him had an accident and was overturned. Dubey was shot multiple times on his chest and shoulder by the police when he ‘allegedly’ shot at them by snatching a gun from one of the police officers who was injured in the vehicle accident. Dubey was brought dead to the hospital while the officers who were shot had only grazed gunshot wounds.[1]

Dubey is reported to have shouted his name while being arrested, fearing being killed in a similar manner as his accomplices. He is the 6th person to be eliminated by the UP police following the killing of 8 policemen by Dubey and his associates at Bikru village, Kanpur. It also marks the 119th  encounter killing initiated by the UP police since March 2017.[2]

Encounter killing is a widely used term to describe extra-judicial killings by the police and armed forces, supposedly in self-defense against ‘suspected’ gangsters and terrorists. A popular form of extra-judicial killing is “police encounters”. Such encounters are staggeringly fairly common in Indian states, especially UP, which ranks highest in the country in ‘fake encounter cases’. The statistics shows that this goes for most of the other states too.[3]

SOCIAL OUTLOOK

The increasing number of police encounters across the country in the recent years are beginning to raise questions as to the legality and moral and ethical aptness of such measures. Still, a majority section of the society still hails and upholds such repulsive police actions, irrespective of whether the encounters are real or staged; or whether the suspects and accused who are killed are actually guilty or innocent.

Vigilante justice in the movies is a concept largely accepted and celebrated by the audience. And police encounters are heartily welcomed by the public because it portrays the manifestation of the fantasies of justice that are cultivated and nurtured by the people over the years.

 The reasons are various for this attitude of the society. Severe miscarriages of justice- alarmingly rising number of crimes, the inefficiency of the police in catching the culprits, pending trials, reduced conviction rates, inadequate punishment- have edged, manipulated and corrupted the public’s emotions towards appreciating such encounters. The way the people jubilantly celebrated and cheered for the police at the encounter site of the Hyderabad Gang Rape Case, 2019 that killed the 4 accused, and how women tied rakhis to the police personnel are clear reflections of this.

Major public approval and support often awards legitimacy to such police actions, which is also encouraged by the government as they strive to protect their image and to guard and defend themselves from being overturned. However the question to be addressed is whether these encounters are actually just. The question is whether true justice is ensured or is it for the sake of revenge or is it merely a cover-up. Reports that the Hyderabad encounter was a cover-up were stirred up after the publication of a report that stated that the Commissioner of Police who oversaw the case, V C Sajjanar, was the SP of Warangal in 2008, when the exact same situation happened- a sensational case of an acid attack on a woman that ultimately led to the killing of the accused by the police after being taken to the scene of the crime and somehow managing to get their hand on a gun.[4]

Whatever the truth, the encounter specialist was hailed as a vigilante of justice who avenged the horrendous death of the rape victim in ignorance of all the visible violations of the principles of natural justice that the encounter brought about. This brings to forefront the eye- opening statement made by the former CJI S A Bobde that ‘justice is never instant and that it loses its character when it becomes revenge’.[5]

Justice can never be spontaneous. Delays in judicial proceedings are always frustrating and disheartening. However, it is only through the methodical and stipulated process that justice can be ensured in its true and pure essence. It is to ensure that even though 1000 culprits escape the clutches of the law, not one innocent person should be wrongfully punished. The society’s contribution to the success of an investigation is surprisingly great. The public’s emotion can turn the direction of investigation into a positive or a negative outcome. The very purpose of investigation is to bring out the truth of the case before the court of the law. Then it becomes the duty of the court to judge the case and to give the verdict. In order to bring these principles into reality the society in its entirety need to change their outlook.

LEGAL PERSPECTIVE

Encounter killings contradict the rule of law and such killings are totally against the constitutionality and legal framework of India. Shoot at sight approach of police towards the accused persons cannot be upheld in a country that is governed by the rule of law, even if the crime committed by the accused person is heinous. These killings violate the fundamental rights of the citizens guaranteed in Article 21. Under Article 21 every person including the criminals have the right to life and liberty and to live with dignity. No one can deprive a person from enjoying it except by procedures established by law. According to Article 14, equality before the law and equal protection of the law should be provided to every citizen, including the criminals who have committed heinous crimes. Thus, fair trial and investigation must be granted to every accused person. Article 22 of the Indian constitution provides that the accused person has the right to appoint an advocate of his choice and it is also a statutory right under section 303 of CPC. Even though no law in India directly authorizes the police officers to undertake instant justice as in the name of encounter killings, India faced a tremendous increase in the number of such killings.

Some enabling provisions protect the police officers even if they have been involved in encounter killing. Such provisions act as a shield of protection for these officers. Section 96 of the IPC gives the right to use force for self-defense and to protect one’s body or others from the criminals whose actions created a reasonable apprehension of fear of death or grievous hurt. This right is available to all the common citizens including police officers. Section 46 of the IPC allows the police officers to use force which may result in the killing of the accused person at the time of the arrest. This right is available only if the offence committed by the accused is punishable with a death sentence or life imprisonment. Exception 3 of section 300 of the IPC states that the culpable homicide is not murder if the offender being a public servant or aiding a public servant acting for the advancement of public justice exceeds the power given to him by low and causes death by doing an act which he in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

In most cases, the encounter killings are a set-up created by the police officers, with the consent or prior knowledge of higher officials. It won’t be as a result of self-defense or retaliation but just a fake attempt to kill the allegedly accused person so that they can close the case easily and the burden of investigation can be brought down.

Encounter killings also violates the basic natural justice principles of presumption of innocence and ‘audi alteram partem’. These are globally accepted rights and are upheld in many international conventions. Article 11 of the UDHR states that “everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defense”.

Supreme Court has always re-probated encounter killings and claimed that no officials have the right to kill the criminals irrespective of the gravity of crimes they have committed. In 2011, during the trial of a case, the Supreme Court held that if the encounters were proved to be fake, then the officials involved in such encounters would be punished with a death sentence. Supreme Court also upheld that these killings must be considered rarest of rare cases because these are nothing but cold-blooded murders.[6] In PUCL v. State of Maharashtra[7], Supreme Court held that the encounter killings committed by the police officers contravene the rule of law and are against criminal justice. To preserve the faith of the common public in the police force, the court issued 16 guidelines that are to be followed during the investigation of such encounter killings. These guidelines ensure that justice is served to all.

Along with Supreme Court, NHRC has also laid down many guidelines to make sure that persons guilty of such crimes are punished. Magisterial inquiry must be held in all cases of death which occur in the course of police action, preferably within three months, taking disciplinary action and prompt prosecution against the officers found guilty in the investigation and denial of promotion and instant gallery rewards on concerned officers soon after the occurrence are some among them.

CONCLUSION

Eventhough we have the above mentioned provisions in our criminal justice system and appropriate guidelines formulated by the concerned authorities, the number of encounter killings  in India is dreadful. According to an RTI inquiry the NHRC has registered a total of 1782 fake encounter cases between the years 2000 and 2017. The state of UP accounts for a lion share of 45.55% of the total cases registered.[8] The government should be the protector of the life and property of people and the politicians should refrain from praising encounter killings and rewarding the police officers who initiate it. 

The present scenario of encounter killings is disgraceful to a democratic country like India. The main reason behind such killings is the delay in justice delivery. Even the public rejoice in encounter killings can be attributed to this delay. Therefore, speed trial courts must be constituted to contain this issue. Guidelines issued by the Supreme Court and NHRC should be strictly enforced and punishment for the officers involved in such crimes be ensured. There are no shortcuts to prevent the increasing number of crimes in our society. It can be reduced only through education, providing awareness and strict enforcement of laws. But instead, most of us encourages police officers to use their weapons to kill the criminals so that we will be safe, but that approach will only make the situation worse.

 REFERENCES

  1. Omar Rashid, 10th January 2020, Gangster Vikas Dubey shot dead in ‘exchange of fire’, In The Hindu, Retrieved from: https://www.thehindu.com/news/national/other-states/gangster-vikas-dubey-dead-says-up-police/article32038219.ece
  1. FP Staff, 12th July 2020, Vikas Dubey’s death marks 119th encounter killing since March 2017;a look back at UP Police’s encounter express, In Firstpost, Retrieved from: https://www.firstspot.com/india/vikas-dubeys-death-marks-119th-encounter-killing-since-march-2017-a-look-back-at-up-polices-encounter-express-8586771.html
  1. Encounter killings by police, 10th August 2021, In Wikipedia, Retrieved from https://en.wikipedia.org/wiki/Encounter_killings_by_police
  1. Rohan Venkataramakrishnan, 6th December 2019, Hyderabad encounter killing may seem like justice, but here’s why no good can come of it, In Scroll.in, Retrieved from: https://scroll.in/article/945987/hyderabad-encounter-killing-may-seem-like-justice-but-hereis-why-no-good-can-come-of-it
  1. PTI, 7th December 2019, Justice can never be instant, loses its character when it becomes revenge : CJI, In The Economic Times, Retrieved from: https://m.economictimes.com/news/politics-and-nation/justice-can-never-be-instant-loses-its-character-when-it-becomes-revenge-cji/articleshoe/72415928.cms
  1. Prakash Kadam & etc. v. Ramprasad Vishwanath Gupta & Anr, (2011)6 SCC 189
  1. People’s Union for Civil Liberties v. State of Maharashtra, CDJ 2014 SC 831
  1. Nitesh Mahech and Yashika Sharma, How the Indian criminal law interprets encounter killing, In blog ipleaders, Retrieved from: https://blog.ipleaders.in/indian-criminal-law-interprets-encounter-killing/

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Interpretation of Good Faith Under IPC

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This Article is written by Shivanshi Aggarwal, a student at Maharaja Agrasen Institute of Management Studies, GGSIPU

Introduction

To consider the liability of any criminal act non applicable to specific person or in other terms to make a defense against any specific criminal act, “Good Faith” has been adopted as a strong measure. Good faith in general terms means no bad or criminal intentions that is person acting in favor of the other person while India Penal Code defines it in Section 52 as “nothing is said to be done or believed in good faith which is done or believed without due care and attention.” A crime is constituted when there is mens rea that is wrong or guilty mind and actus reus that is wrong or criminal conduct. Without mens rea there cannot be any criminal activity that is only actus reus cannot prove someone criminal or put someone behind the bars. IPC defining good faith as a separate section itself shows how much of importance it holds while deciding someone’s mens rea. Thus it can be measured that if someone with good intentions or in good faith believes that he has done no wrong or the wrong he has done is to prevent the bigger wrong impact or the wrong has been already communicated and consented with the other party thus no criminal liability is imposed. For Example:- Bringing down a house to stop fire spread, hitting or killing one person to save more than one person etc. 

Elements of Good Faith

As per the definition provided by IPC certain elements of good faith can be derived. Such as-

  1. Done or Believed– An act once done can only be questioned before court and can only be treated as a question of law thus a person only having thoughts in his own self cannot be put in court. 
  2. Without– Without simply means not with anything in particular. 
  3.  Due care and Attention– This term is not defined in particular terms anywhere. But judges through their judgment have tried several times to give a fair meaning to this phrase. In a nutshell acts done in accordance with what a reasonable person should have done in normal course of nature without any bad intent to harm another person could be said to be done with due care and attention. 

Putting all these elements together it can be interpreted that acts which are already done or believed to be done without taking reasonable cautions are not done in good faith. 

Sections which show its relevance

  1. Section 76 of IPC which states “Acts done by a person bound, or by mistake of fact believing himself bound, by law”

In this section, the defense can be taken only if the person in good faith at the starting point believes that he is bound by law that is if at later stage he expressed to be bound he cannot be excused. 

  1. Section 77 of IPC which states “Act of judge when acting judicially”

Accordingly in this section as well good intentions or no guilt should be present at the time of commencement of act.

  1. Section 78 of IPC which states “Act done pursuant to the judgment or order of court”

This section also supports the person if he had performed the activity in good faith.

  1. Section 79 of IPC which states “Act done by person justified, or by mistake of fact believing himself justified, by law”

This general defense also gives the person liberty if he in good faith thought his conduct to be justified by law.

  1. Section 92 of IPC which states “Act done in good faith for benefit of a person without consent”

As per this section, when a person performs any actus reus even without the consent of other party then also he can be excused if the person performing had good intentions which could protect or profit the other party.

  1. Section 93 of IPC which states “Communication made in good faith”

Under this section no communication made can be treated as offence if the initiator has done it without any intention to hurt or to provide any sort of shock or injury to other person. 

The above mentioned sections fall in the category of general defenses that is any of these are considered to be excuses but there are several other provisions and sections which shows the relevance of good faith in IPC directly or indirectly. Some of them are-

  1. Exception 3 of Section 300 of IPC which states “When culpable homicide is not murder”

This exception even excuses the murder of other person if the murder is done without any bad intentions or to kill the person out of personal reasons. If the person accused of murder believed that he is under legal boundaries and being a public servant legally has the powers to act in such a manner as per the circumstances thus he will not be charged for offence of murder. Such exceptions give the power to public servants in a positive way to take hold of situation which can later be big problem to public in general. 

  1.  Exception 7 of Section 499 of IPC which states “Censure passed in good faith by a person having lawful authority over another”

As per Section 499, defaming other person by any means is a criminal offence but this exception provides a relief when a person in good faith censures the other over whom any lawful authority could be proved. Positive censuring without any bad intention to harm the other person in any way like mentally, emotionally or physically should not be considered as an offence and thus this exception executed this idea well. 

Judgment

Sukaroo Kabiraj v. The Empress 

In this case, the appellant was the surgeon who performed a very dangerous operation of cutting of internal piles while he was operating he was unable to stop the bleeding and hence the patient died. On trial he said that he should be excused as per Section 88 of IPC which states “act not intended to cause death, done by consent in good faith for person’s benefit” as he did not had any intentions to kill the patient and acted in good faith. But the respondent stated that he was not educated enough to perform the operation as other doctors would not have treated the problem in such a way how appellant had performed it. Thus the court held that he cannot be excused. Though he did not had any bad intentions or guilty mind but the main element of good faith that is due care and attention was not fulfilled by appellant. He did not performed in accordance with what a reasonable person should have done in such a case and thus should be held guilty. Thus case showed that how elements of good faith needed to be fulfilled to claim any defense and not only the term itself will excuse someone. 

State of West Bengal v. Shew Mangal Singh

In this case, police officers on the orders of Deputy Commissioner started open firing, causing death of two persons while chasing them. The brother of deceased sues them considering negligence on part of the police officers. But the high court highlighted the point that officers were only obeying what orders they had received and in good faith they were performing under the limits of the order. To prove them guilty it must be necessary to show that either the orders were unjust or the officers acted out of the range of orders given to them. 

Doraswami Pillai v. The King Emperor

In this case, the police officer had the orders from magistrate to check upon the activities of accused but the police officer along with other constable went in the midnight to the house of accused and started knocking continuously to check whether he was present there or not. When accused came out he abused and pushed the officer due to which the turban of officer fell and afterwards accused brought a stick from inside and pick it up as to threaten to bit him up. In this case, the court held that though the officer had the orders still it does not provide the right to trespass at midnight and could not be excused under good faith. Moreover the accused will be liable for assault but also the officer will be liable for trespassing as he acted beyond the limits of orders. 

Conclusion

In my opinion, if a person has performed actus reus with no mens rea or bad intentions or guilty mind then the elements of criminal activity should not be treated to be fulfilled and no punishment should be imposed. If a person in good faith or to benefit the other person performs or conducts an act but later it found out to be criminal act then should not be criminalized. If such activities will be punished it will take away the courage of a person to help others or to stop other from doing something wrong. Especially police servants will be so restricted that they being the first department of aid will not be able to provide justice to parties concerned. They will not be able to perform any immediate actions against a person suspected. But sometimes through various litigations it can be concluded that people try to take advantage of such term. As while conducting the act they try to make nuisance or to take advantage of victims and at the time of trial claims to be believed in good faith. Thus effective judgments and statutes could be implemented carefully to avoid such troubles. 

To conclude all the aspects, good faith is necessary unless misused. 

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Uniform Civil Code towards Gender Justice

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This Article is written by Shivanshi Aggarwal, a student at Maharaja Agrasen Institute of Management Studies, GGSIPU


In India, there is a uniform criminal code which means that everyone will be treated similarly for the same crime irrespective of any community but there was not any uniform civil code which means that everyone will be treated as per their own religious and cultural norms when it comes to civil matters like marriage, maintenance, guardianship, adoption, divorce, succession and so on. While this difference was created due to religious boundaries women were not given equal rights as men. They were not considered at par with men. Thus to provide them with gender justice, equal rights, and equal opportunities there was a need to provide them with equal laws. In some cases women were not treated as same as men even in their own family, a married daughter was not given the same rights as of married son, in Muslims polygamy is allowed to men but not to women, men can at anytime leave their wives by saying Talaq thrice but women had no such power, men had no restrictions while going out of the house but women needed to cover their face by ghunghat or burkha and many more. Thus to provide no biases towards this gender Uniform Civil Code was adopted. Though it is only a fundamental duty that is it cannot be challenged in court but still it is the duty of the state to remove any difference a women faces. 

Background of UCC

In 1840, Lex Loci Report was being framed by the British Government, based on that they framed a uniform criminal code that is for crimes, evidence, etc people were treated equally. But since there was the majority of Hindus and Muslims, some religious laws were also kept and the British judiciary treated people according to their religious beliefs. Thus many systems where women were suffering like Sati, Dahej, Triple Talaq, Polygamy, etc remained. But as BN Rao committee formed they found the need to codify Hindu Law in 1941. As society was advancing the legislation was increased. Hindu Succession Act was amended to bring equality among both genders but this was not sufficient. Judiciary pointed out certain times and highlighted the need to bring uniformity in all the communities to reduce confusion and biasness. Thus UCC was adopted as Section 44 of the Indian Constitution which says “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. Certain legislative reforms show its implementation such as The Special Marriage Act, Hindu Women’s Right to Property Act, Hindu Inheritance ( Removal of Disabilities) Act, and many more.

Need of UCC

Since there were so many personal laws of different religions, there were many laws that were overlapping. If a country as a whole be looked upon and governed these overlapping laws were creating confusion and nuisance, hence UCC could become a great measure to bring uniformity. Also the personal laws brings a lot of clashes within the family, as today’s generation do not completely believe in old norms and hence generation gap creates a lot of different mindset, thus more modified and similar laws could stop a lot of litigation cases. Thirdly a country with less domestic clashes or less difference in opinion will be looked as an internally unite country by the world at large and thus country will be gaining a lot of power and reputation by other world leaders. Fourthly, what may be holy to one may be unholy to another community. For Example- Pork is treated as Haram in Muslim’s Holy Book Quran but Hindu’s do not consider eating pork as any sinful activity on the other hand cow is treated as God in Hindu community but the Muslims community can also perform cow slaughter. This can create rivalry between several communities. Hence to remove such ugly clashes UCC could be proved helpful. Also in one community some activities are extremely unethical and should be punished while other community may treat it as normal by which some may receive punishments and some may not which is biasness towards individuals for example cutting of holy trees such as Tulsi etc, women to be burned alive while husband’s funeral but men will not be and so on. Lastly, irrespective of any community country as a whole should be treated equally and all the communities are receiving resources equally should also be governed equally. 

Goa could be seen as wonderful example of UCC. In Goa no community is treated as different or as per their personal laws even if it is related to their marriage or maintenance. Every citizen of Goa functions in accordance with same rule of law which applies to everyone. Thus they even got appraised by Supreme Court for being such a legendary example of Secularism. It outshined all the stereotypes and all the beliefs which keep an individual, community or country backwards. Goa is the only Indian state which has all the personal laws with uniformity and no citizen can act beyond the permitted laws. 

Popular Opinions

Many renowned personalities supported UCC and gave statements towards it. To conclude some of them-

  1. Laxmi Menon- She brought the need to change the mindset of men’s of legislative assembly regarding women seeking divorce. They should not be considered a Hindu or Non-Hindu rather should be supported as measure to bring change in the society. 
  2. Kofi Annan- He considered gender biasness to be the hurdle between poverty. Promoting self development and building good governance. In his opinion gender equality should be more than just a goal. 
  3. Leila Seth- She was the first women Chief Justice of India. She considered some custom practices to be unfair and unjust with women and due to which women was not able to maintain her separate identity in the society. Thus UCC will help the women to be socially independent as well.

Judgements

The judiciary showed its support towards UCC. The most important case was

Mohd. Ahmad Khan v. Shah Bano Begum and ors.

In this case Supreme Court interfered with the personal Muslim Laws. When Shah Bano was being asked by her husband to live separately after having five children, she seeks court at least to claim maintenance for herself and for her children. While the husband claimed that a Muslim man is only liable to provide maintenance for the iddat period but the court held that he should be liable to pay for his first wife and children even after the iddat period if the woman is unable to maintain herself under Section 125 of CrPC. This case was considered as landmark judgement since the women was treated as natural human being and not just a slave of her husband who could be left abandoned anytime without any obligations. 

Sarla Mudgal v. Union of India

In this case, petitioner claimed that her husband married another woman by converting to Islam. He converted only to marry with second wife since polygamy is allowed in Islam. But the first wedding was according to Hindu Law and hence it should be considered illegal. The court also held that first marriage should be dissolved as per the Hindu Marriage Act, 1955 in order to marry other women. Even if he converted to Islam the second marriage will be void and illegal as per Section 494 of IPC. This judgement proved to be important since it highlighted and implemented UCC as the two different religions were treated uniformly. 

Ms. Jordan Diengdeh v. S.S. Chopra

In this case the marriage was solemnized between a Christian and a Sikh according to Indian Christian Marriage Act, 1872. When the petitioner demanded the marriage to be null the court dismissed its petition and showed the urgency and need of UCC in India. The facts show how difference in laws could provide a legal marriage to be null and void. If UCC could be implemented the marriage will hold its legal powers irrespective of any community differences. The court claimed that Article 44 is to safeguard the citizens of the country and it should be implemented without any delay. 

Conclusion

Secularism is a basis of Indian Constitution. With the 42nd Amendment, secularism was added in the preamble which shows how much of importance it holds. But due to different religious and cultural laws secularism was lacking to prevail in the country. Also the condition of women was deteriorated due to such prevailing laws. The UCC was adopted with the aim to treat everyone with same rules and everyone should impose same obligations. UCC did not intended to remove any relevance or faith towards any religious beliefs or practices, it only aimed at bringing equality over all country members, everyone to bring under same roof. With the modernized and advanced society, no gender can be lacked back and cannot be treated any less and thus uniformity in civil matters as well could help a woman to gain her importance in the society. However constitution provides minorities certain freedom and rights which could be violative due to UCC. Also the essence of India which is diverse cultures will be affected due to the implementation of UCC.