theoryofabrogation

Opening Hours Mon - Sat 09 : 30 am - 8 : 00 pm

+91 9971399324

+91 8840961324

[email protected]

13, Chand Complex, 4th Floor, Okhla Main Market, Okhla Head, Jamia Nagar, New Delhi- 110025

Menu
Register For New Batch

Blog

Death penalty abolition or retention

Posted on By toahostinger No Comments on Death penalty abolition or retention

Death penalty abolition or retention For a long time death penalty has been a topic that is surrounded by controversy also the oldest form of punishment for every era death penalty is considered the most strict and the oldest ancient form of punishment. that have existed capital punishment or the death penalty has always been the most relevant and important topic of debate in India and it should be important to come to light in India this penalty is given in the rarest of rare cases whereas if we look at other countries like the UK. has abolished the death penalty last death penalty was practiced in 1964 in the UK it was not easy to abolish the death penalty in the UK but they finally managed to do that whereas in India last execution was performed in 2020 March in the Nirbhaya case. Introduction Society is made of two-component crime and criminals which has resulted in a disturbance in social peace and community is getting disturbed by the crime and criminals to deal with such issue government come with a punishment sentencing that should be in correspondence with the crime done by the individual means the nature of punishment should be equal to nature of the crime. In the case of Suraj Ram versus the state of Rajasthan, the supreme court held that the state should consider the rights of criminals while awarding sentences to be fair but the state should also consider we can to get justice further court elaborated that the purpose of sentences the criminal should never be and unpunished and Victim should never be unsatisfied. The most controversial punishment is the death penalty or capital punishment J.R.R. Tolkien said many that live deserve death and some that die deserve life.  Background Death punishment is been practiced over the centuries in the 18th century BC King Hembury of Babylon performed capital punishment for 25 different crimes during the Mughal Era barbeque method also put offenders to death even the British use to used the hanging method to punish the offenders 14th century BC Kohli used this penalty in the 17th century this penalty was made for all kinds of crime by BC decorate Athens. Also, Captain George Candle in the Jameson colony of Virginia in 1608 was first executed for spying on Spain in 1612, the death penalty was given even for minor crimes. Retention versus abolition debate Many people believe that they do not believe in capital punishment as it takes the life of a person which cannot be taken by anyone except God some believe that the penalty is the only solution to teach a lesson to criminals who perform severe crimes there were so many aspects of both abolitions somewhere promoting the moral values and ethics in favor to abolish the capital punishment others were looking in the theory of deterrence to provide justice to society and victims by hanging. Theory of deterrence In the view of abolitionist abolished the person who commits a crime like murder or rape is not in his senses while performing such moment he remains in the inactive state of mind and he is not aware of what he is doing and what could be the consequences while performing such as he is lost in the wave of emotion, giving death penalty cannot do justice to him, moreover it can also not decrease the crime rate death penalty is an unnecessary act. whereas receptionists said that fear of death is a deterrent if a person is in fear of death then he will think twice before committing some serious or any kind of crime, the punishment provides justice to the victims and stops the crimes that could happen in the future. Crime rate Abolitionist argues that the penalty has no direct or indirect connection with crime rates this is just a custom or a procedure that is followed by the government it does not result in a decrease in the crime rate of the country this argument was taken from the study of theologist Stallin he in his study after collecting the data from the United State of America concluded that that penalty is just a custom it has no role in decreasing the crime rate. Retentionists have the opposite view According to them capital punishment or death brings fear in the mind of the person who is thinking of committing any kind of crime does it directly or indirectly reduce the crime rate Professor Isaac in his article pointed out some loopholes in the study of Stalin according to him the work of Stallin’ neither develop nor tell the full range of implication. Society’s rights Abolitionist stated that no one in the society has right to award death to any person the kind of punishment it can only be done through the act of God also Death punishment somewhere harm the human rights of the person whereas retentionist argued that since the right to death is only can be done through the God not through any person but to provide justice to the victims and the society accused must be punished in a fair way and with the fair punishment which is equal to his crime like murder rape terrorist attack cannot be tolerated and accused must be punished to death. Retention in India Dead penalty in India has been practiced for a very long time from the Mughal Era to British rule used to punish with capital punishment British applied the death penalty under the Indian Penal Code 1860 in 1931 on 27 January question of the abolition of capital punishment was raised by the Mr. Gaya Prasad Singh however this motion was rejected later Mr. Mukund Lal Agarwal introduced a bill of the abolition of capital punishment on August 23, 1956, in the first Lok Sabha of the republic of India it was later rejected but the discussion continued and topic of cropping down this punishment continued later in 1962 a resolution was passed…

Read More “Death penalty abolition or retention” »

Criminal Law, Indian Constitution, Indian Penal Code, Law

Divorce Under Hindu Marriage Act 1955

Posted on By toahostinger No Comments on Divorce Under Hindu Marriage Act 1955

Divorce Under Hindu Marriage Act 1955 Divorce was not a concept that existed in ancient times. They viewed marriage as a sacred institution. Manu asserts that a husband and wife are inseparable and their marital bond cannot be severed. Later, the idea of Divorce entered the scene and became commonplace as a way to dissolve a marriage. The Arthashastra states that a marriage can end if both parties want to do so and that it should be an unauthorized union. Manu, however, rejects the idea of the dissolution. Manu asserts that the demise of either spouse is the only way to end a marriage. The Hindu Marriage Act of 1955 introduced the clause relating to the idea of Divorce. Divorce is referred to as the dissolution of a marriage in the Hindu Marriage Act. The marriage or married connection must be protected from all harm for the reasons outlined by law for the benefit of society. Only grave circumstances allow for Divorce; all other circumstances offer an option. Grounds of Divorce under the Hindu Marriage Act, 1955 Based on Section 13(1) of the Hindu Marriage Act, any of the displeased spouses can go to court and demand a Divorce with the culpability theory of the law. Only the wife can apply to the court for a Divorce under the conditions outlined in Section 13(2). 1. Adultery In many nations, the idea of adultery may not be viewed as a crime. However, according to the Hindu Marriage Act, adultery is one of the most significant grounds for Divorce when it comes to matrimonial offenses. Adultery is defined as consensual and voluntary sexual activity between a married person and another member of the opposite sex, whether they are already married or not. If the marriage of the husband and his second wife is deemed to constitute bigamy, even their sexual relations are grounds for adultery. The Marriage Laws Amendment Act of 1976 added the idea of adultery to the Hindu Marriage Act. In Swapna Ghose v. Sadanand Ghose In this case, the wife found her husband with another girl lying on the same bed and the neighbor also confirmed that the husband had committed an offense. Here the wife gets the Divorce. 2. Cruelty Both mental and physical cruelty are included in the concept of cruelty. The term “physical cruelty” refers to when one spouse physically harms or beats the other spouse.  Physical cruelty can be easily identified, while mental cruelty is more difficult to define. What is considered as Mental Cruelty against Husband by wife: Humiliating the husband in front of his family and friends. Making false allegations against him. Wife having affair. Wife living an immoral life. The constant demand for money. Aggressive and uncontrollable behavior of Wife. Ill-treatment to the husband’s parents and family. 3. Desertion Desertion is when one spouse is permanently abandoned by the other without their consent or any justifiable excuse. Generally speaking, when one side refuses to accept the responsibilities of marriage. Essentials abandonment of the other spouse forever. rejection of the marital obligation. without any justifiable basis. no agreement from a second spouse. 4. Conversion The other spouse has the right to petition the court for a Divorce if one of the spouses changes his or her religion without the other spouse’s consent. Illustration A, a Hindu, has two kids and a wife named B. Without B’s permission, A went to church one day and decided to become a Christian. Now B can go to court and ask for a Divorce based on A’s conversion. 5. Venereal Illness According to this theory, a sickness that is contagious and can be passed on to the other spouse qualifies as a legal reason for Divorce. Illustration On September 9, 2011, A and B got married. A later developed an untreatable venereal illness. If B lives with A, there’s a chance she could contract the sickness as well. B may now apply to the court for the dissolution of their marriage. Divorce with Mutual Consent as an Idea By mutual permission of the parties, the individual may submit the Divorce petition by Section 13B. The parties must wait one year from the date of marriage if they desire to end their marriage by mutual consent. Conclusion There are several provisions surrounding Divorce in the Hindu Marriage Act of 1955. “Divorce as a Dissolution of Marriage” is defined under the Hindu Marriage Act. According to this view, a marriage may be dissolved if one spouse is guilty or liable for a crime that falls under the category of matrimonial offenses. The innocent spouse is entitled to Divorce as a remedy. Written By:- Sonu Kumar

Indian Constitution

Child Labour

Posted on By toahostinger No Comments on Child Labour

Child labour Though it is believed that Children are the incarnation of God the reality seems to be different. In today’s world, one can easily observe the exploitation of Children anywhere. Child labour is the term used to describe the involvement of Children in any type of economic job that can even ruin their happy Childhood and hamper their education, learning and skill development. Child labour exposes Children to harsh exploitation, trapping them in a cycle of poverty, illiteracy and deprivation. It snatches all the opportunities for a Child to be successful. It may also force him to use unethical and unlawful methods. In our daily life, there are innumerable instances of Child labour that we may see. Even many of us are encouraging this practice in one way or another. The inevitable reason behind this is poverty. A Child is forced to work to earn decent wages to survive due to poor living conditions. As the Children‘s needs and wants are not as much as compared to an adult and because of their naivety, businessmen and factory-owners can simply hire them as a labourer at very low wages. History It is not a brand-new concept. Its origin dates back to ancient times, as the exploitation of Children as slaves was also recorded in the Arthashastra of Kautilya. Children used to work in fields in rural and agricultural areas to help and support their families by sharing the family burden. This phenomenon was suddenly sparked by the industrial revolution in the 18th century which resulted in the employment of many Children in economic and productive jobs. Causes of Child labour Following are the main causes of Child labour:- Poverty- Child labour is primarily caused by poverty. It forces innocent Children to participate in such economic activities where they must work to support their families and ensure their survival. A Child gets caught in poverty’s vicious cycle along with other factors like illiteracy. Lack of Education Another significant factor contributing to Child labour is illiteracy. Many Children are denied access to their basic education despite having a fundamental right to it under 21A of the Indian constitution. In many villages, parents choose to have their kids working in the field rather than sending them to school which makes it difficult for them to learn fundamental concepts and develop their skills. As a result, they are unable to find better employment opportunities in the future. Lack of general awareness  While being employed, Children are unable to explore their world. They lose their joyful Childhood. Generally, Children who live in rural or backward areas are unaware of their rights i.e. right to education, etc. and start to earn from an early age instead of studying and learning. Uneducated parents are also unaware of welfare schemes initiated by the government for the welfare of Children. Social Backwardness Socially and economically backward families are unable to send their children to schools. The cost of their Children’s education is beyond their means. Consequently, Children remain trapped in this cycle. Preference for cheap labour Due to their innocence and lack of fantasies, Children readily agree to work for extremely meagre wages. Greedy employers, shopkeepers, business owners, etc. employ Children because they have to pay less. In search of cheap labour, they prefer to employ more Children. Non-compliance of laws Children have several rights under the law, such as the right to education and the government is also required to frame its policies to ensure that its citizens’ health and education come first. Several laws are also created to outlaw certain practices, but their enforcement fails to accomplish the intended results due to poor compliance. Family Tradition The sad bitter truth is that some families pass on Child labour as a tradition or habit, which is influenced by cultural and traditional family norms. many families believed that a good life was not their destiny and the tradition of labour was the only means of their subsistence. They also think that this will make their children more responsible and wiser in the future. Small business owners also destroy the lives of their Children in their shield to continue their family business with lower production costs. Additional reasons for Child labour People frequently migrate from place to place in search of better jobs and other necessities. They have no option of sending their kids to school rather they prefer them to work to earn some living. Constitutional provisions regarding the welfare of Children Six essential fundamental rights are guaranteed by our Indian constitution which is enshrined in Part III also referred to as the “Magna Carta of Indian Constitution”. The right against exploitation (Art. 23 & 24) is one of these rights. According to Article 24 of the Indian constitution, no Child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Earlier it was only directive principles for the state to design its policies and programmes in such a way that Children‘s health and education received enough attention and sufficient priority under Articles 39 & 45 respectively. Later on, a new Article i.e. Article 21A(Right to Education) was inserted by the 86th Constitutional Amendment Act, 2002 which made it a fundamental right in itself along with being one of the DPSPs. Article 21A reads that the State shall provide free and compulsory education to all Children of the age of six to fourteen years. Legislative Provisions for the Prohibition of Child labour Since the country’s independence, the government has taken several actions to stop the practice of Child labour. The Gurupadswamy committee was appointed in 1979 by the central government to submit its report regarding the causes of Child labour and essential ways to eliminate it. The committee found that the main reason behind Child labour was poverty. Based on its findings and reports, the central government enacted the Child Labour (Prohibition and Regulation) Act,1986 which prohibited the engagement of Children up to fourteen years…

Read More “Child Labour” »

Criminal Law, Human Rights, Indian Constitution

Breach Of Human Rights

Posted on By toahostinger No Comments on Breach Of Human Rights

      Breach Of Human Rights Here we talk about human rights, all human beings are born free and equal in dignity and rights. In these Human rights, some rights are also included as the rights to life and liberty, freedom of opinion and expression, right to freedom of speech right to work and education, and many more. Every human being has these rights by birth. In India, every citizen of the country has six fundamental rights by birth which are given by the constitution. And no one has the right to breach someone’s rights. But somewhere, in today’s time period, many kinds of cases exist in a society where people of the minority are restrained by the majority to freely live their lives and enjoy their rights. Introduction When we talk about human rights, we should know about what is human rights and how many kinds of rights human beings have. Every human being has 30 kinds of human rights which are defined by the Universal Declaration of Human Rights. Fundamental rights are also included which are given by the constitution of India to every citizen of India. Fundamental Rights Right To Equality The right to equality (Articles 14 to 18 ) prohibits inequality on the basis of caste, religion, place of birth, race, and gender. It ensures equal rights for all citizens. Right To Freedom These rights (Article 19,20,21A,22 ) are freedom of speech, freedom of expression, and freedom of movement throughout the territory of our country. Right Against Exploitation Right against Exploitation (Articles 23 and 24) concerns human trafficking. Cultural And Educational Rights (Articles 29 and 30 ) Cultural rights protect the rights of cultural religious and linguistic minorities by enabling them to conserve their heritage and protecting them against discrimination. Educational rights ensure education for everyone irrespective of their caste, gender, religion, etc. Right To Constitutional Remedies The right to constitutional remedies (Articles 32 to 35 ) empowers the citizens to move to a court of law in case of any denial of the fundamental right. The Preamble Of The Constitution Of India also mentions these factors like, justice, Liberty, Equality, and Fraternity to secure all its citizens. But nowadays we can see in some places minorities‘ rights are violated by the majority. like In some places people of scheduled caste and scheduled tribe are restricted from going to religious places by uppercast people There are lots of cases like these in India, including the whole world. Background When we go into the debate on this kind of topic or subject, landmark judgments play a wide role in understanding the history behind it. These judgments opened up the scope for changes in the context of the future. A recent hijab ban case and a meat ban case are some of them. In these two cases, minorities claimed that their fundamental rights were violated by the majority & authority of India. AISHAT SHIFA VS. THE STATE OF KARNATAKA & ORS. On January 1, when some Muslim students of a college in Karnataka’s Udupi were not allowed to attend classes wearing a hijab as the dress was against the prescribed, norms of the college. In this case, Karnataka High Court bench gave references to many landmark judgments where the word ‘ SECULAR ‘ has been defined. The word Secular means that the citizens have complete freedom to follow and practice any religion. The word ‘ SECULAR ‘ after being added in the preamble was also considered but a three-judge bench judgment of this court reported as Ziyauddin Burhanuddin V. Brijmohan Ramdas Mehra & Ors. This court was considering an appeal against the setting aside of the election of the appellant under The Representation Of People Act, 1957 to the Maharashtra state assembly on the grounds of speeches made by him in the course of the election campaign The term ‘SECULAR’ was also considered by a nine judges bench of this court reported as R Bommai & Ors V. Union Of India & Ors. The court held that the practice of wearing a hijab constitutes an essential religious practice but did not quash the CBSE rule. In this context, Muslims also gave references to the Quran’s Ayah in which the importance of hijab is mentioned. The Quran says “ And not display their beauty except what is apparent and they should place their khumur over their bosoms ’’ (24:31). ‘Khumur means the veil covering the head ’. The second verses is “ O Prophet, say to your wives, your daughter, and the women of the believers that they should let down upon themselves their jalabib.’’ (33:59).’ jalabib means a loose outer garment, as wide dress.’ Meat Ban Case The recent controversy over a ban by a local mayor on selling Meat Over nine days during a Hindu religious festival in India’s Capital is illegal and violates the constitution, our research found. similar attempts made over the last decade in five other states have been struck down by the courts. The ban is, essentially, some argue, a majoritarian writ. the people of the minority said that this act violated their fundamental right, the right to freedom which is inherent in (Art. 19, 20, 21& 22). Observations Of Breach Of Human Rights All human beings have human rights which ensures freedom for all human beings in an equal manner. when we talk about equality before the law it’s required to ensure equality to every citizen in an equal manner. the word ‘ SECULAR ’ mentioned in the Preamble Of India defines India as a secular country where every citizen has the right to follow their religion freely and they are free to practice any religion. The people should also know this thing that when they talk about their fundamental rights they should also respect another ‘s rights. Conclusion The debate on this subject concluded that the Breach of human rights is an infringement of the Constitution. Where there people of the country have no right to freedom then, that state becomes a tyrant….

Read More “Breach Of Human Rights” »

Human Rights, Indian Constitution

Alternative Dispute Resolution In Criminology

Posted on By toahostinger No Comments on Alternative Dispute Resolution In Criminology

Alternative Dispute Resolution In Criminology This article deals with one of the significant applications of alternative dispute resolution (ADR) strategies related to criminology. ADR is often associated with civil law, although more recently there has been increased interest in its potential use in criminal justice systems. it looks at how various alternative dispute resolution techniques are used in criminal law, including plea bargaining, diversion programs, mediation, and restorative justice. References It examines how alternative dispute resolution can speed up the disposal of cases, reduce the case backlog, and promote the accountability of offenders, as well as the advantages and disadvantages of its adoption in the criminal justice system. The study also examines the ethical issues and limitations of alternative dispute resolution in criminal situations, specifically, this article provides insight into the effectiveness of ADR approaches, their impact on victims, and the potential for reconciliation and healing in the criminal justice system. Current research and case studies. it encourages further exploration of alternative dispute resolution’s potential to promote justice and heal communities harmed by crime, contributing to the ongoing conversation about non-adversarial approaches to dispute resolution within criminology. Introduction The power lies with Civil Courts to refer cases for alternative dispute resolution like judicial settlement, arbitration, conciliation & mediation by Lok Adalats under Section 89 of the Code of Civil Procedure. unlike civil disputes, the scenario is different in the criminal environment and the distinction is expressed as follows: “Restorative” justice, which views crime as a violation of one person’s rights by another person and believes that justice in a criminal context should emphasize compensation for the victim’s harm, is represented in the criminal context by ADR. alternative dispute resolution in the criminal context includes the concept of reparation in the context of transitional justice, which may not be present in civil Restitution is constructive action taken by the offender on behalf of the victim and society, which may include monetary compensation, community service, etc. In a civil context, compensation is only part of a court In civil situations, an ADR is confidential and a matter between the parties only, but in criminal cases, some case laws require that the final decision be made public by the However, as shown in the precedent case of Afcons Infrastructure and Ors. V. Cherian Varkey Construction & Ors, the Indian criminal justice system was not open to the idea of including the option of mediation. Inclusion Of Plea Bargaining Used effectively in many jurisdictions around the world, plea bargaining can be described as a pre-trial agreement between the prosecution and the accused in which the accused pleads guilty in exchange for certain concessions made by the prosecution. as the following judgments show, the Supreme Court has not always supported the inclusion of plea bargaining in Indian criminal law: Hon’ble Supreme Court in Muralidhar Meghraj Loya The state of Maharashtra rejected the idea of plea bargaining as it violated the fundamental right of a person accused of a crime not to be compelled to testify against himself. Kasambhai State of Gujarat and Kachia Patel Shantilal Koderlal Vs. In the State of Gujarat and Anr, the Supreme Court while condemning and condemning the plea deal accepted by the Magistrate held that plea bargaining is against public policy. According to the court, plea bargaining is an ultra virus of society and even the Constitution. It can also encourage collusion and corruption and taint the pure fountain of justice. Thippeswamy Vs. In the State of Karnataka, the Court held that it would be contrary to Article 21 of the Constitution to induce or induce an accused to confess to a crime in return for a promise or assurance. The Criminal Law Amendment Act, 2005 enacted in response to the 154th Law Commission Report paved the way for introducing Chapter XXIA, Sections 265 A to 265L of the Criminal Procedure Code, 1973 (CrPC), including plea bargaining. Concept as an alternative to the normal process of resolution of disputes by courts. Plea bargaining is allowed in situations where the maximum penalty is seven years in prison, the crime has not adversely affected the socio-economic status of the nation and the victim is not a woman or a child under the age of fourteen. Sections That Recognise The Concept Of Settlement  The rules of procedure to be followed by the court in case of mutually satisfactory disposition are laid down in Section 265-C. The court will serve the interested public prosecutor, the investigating officer of the case, the victim of the case, and the accused to attend the meeting to find an acceptable solution to the case filed on the basis of the police report. In case of a complaint, the court only gives the statement of the accused and the victim. The procedure for preparation and submission of a report on mutually satisfactory settlement Is regulated in Section 265-D. However, two situations can arise here: If the court prepares a satisfactory settlement report at the hearing held under section 265- C, it must be signed by the presiding judge and every other participant, if If there is no resolution, the court continues the trial of the accused in accordance with the provisions of the Criminal Code while filing a motion in accordance with paragraph 1 of Article 265-B. Domestic Courts Perspective  The following judgments show that the courts recognized the idea of ADR procedures after the establishment of plea bargaining in Indian criminal law: Gian Singh Vs. In the State of Punjab, the Supreme Court held and accepted that an out-of-court settlement was the result of the High Court exercising the legal power conferred on it by Section 482 of the Code of Criminal Family disputes where the wrong is primarily private or are of a personal nature and the parties have settled their dispute” are also exempted from this rule. In these situations, the High Court has the power to stay the criminal proceedings if it determines that the offender and the victim have reached a full and final compromise…

Read More “Alternative Dispute Resolution In Criminology” »

Criminal Law

Offences Against Women’s Modesty in India

Posted on By toahostinger No Comments on Offences Against Women’s Modesty in India

Offence Of Outraging The Modesty Of Women In India  Abstract  As we know, In India the offences against women are increasing day by day. We constantly observe crime against women when we open the news. Various forms of crimes are committed against women such as ‘rape’, ‘murder’, ‘dowry death’, ‘abduction’, ‘threat’ etc. There are multitudinous legislative laws in India to control these types of offences. These legislative laws sanction crimes against women. However, even in the existence of these legislative provisions, crimes against women are not controlled. In this composition, I’ll discuss “The offence of outraging the modesty of women in India”. This content can be understood through the introduction, where we can comprehend the conception of modesty, women’s modesty, essential constituents etc. using several cases, also we can look into the vittles about these offences as sections 10, 354, 354A, 354B, 354C, 354D, and 509 under the Indian Penal Code, 1860. Also, we gain a better understanding of this conception through corner cases. At last, finish the composition with a conclusion. Introduction In general, the term “modesty” means a woman’s sexual dignity, which she acquires from birth. The term “outrage” suggests a physical act. Modesty is that shy sensation you get when someone compliments you on how terrific you are, or when you have to take your shirt off to go swimming and revealing flesh makes you squirm. It refers to the virtue that connects to a female due to her gender and is an attribute linked with females in general when it comes to outraging a woman’s modesty. Demands for her to disrobe, defamatory statements, dragging her to commit sexual assault and voyeurism are all examples of activities that might be considered outraging a female’s modesty. Women’s modesty might be violated by touching her on any private region of her body i.e. which she finds unacceptable without her consent. Section 354 of the Indian Penal Code,1860 defines the scope of modesty outrage, which includes the following factors:- An assault or use of criminal force is required. There must be an intent or understanding that modesty outrage is Outraging a woman’s modesty involves not just physical acts of assault, but also any verbal or nonverbal action that is intended to degrade her. By nature, this offence is considered cognizable, non-bailable, and non-compoundable. Provisions Concerning The Outrage Of Women’s Modesty Provisions regarding the violation of women’s modesty are given under the Indian Penal Code, 1860 which are sec. 10, sec. 354, sec. 354A, sec. 354B, sec. 354C, sec. 354D, and sec. 509. Section 10 of the Indian Penal Code, 1860 In this section, the definition of woman and man has been given. A male human being of any age is called a “man”. A female human being of any age is called a ” woman”. Section 354 of IPC, 1860 Section 354 stipulates that anyone who assaults or uses unlawful force on any woman intending to insult her modesty or knowing it is likely to outrage her modesty is punishable under this provision. The penalty is imprisonment for any length of time, with a minimum of one year and a maximum of five years. In addition, a fine will be imposed. As a result, depending on the judge’s discretion, the punishment can range from light jail to hard imprisonment. a fine will be imposed in addition to the sentence, indicating that the offence is not compoundable. Section 354 contains certain crucial components:- There should be assault or criminal The woman must be assaulted or subjected to criminal Assault or use criminal force on a woman to offend her This is a punishable offence with no bail. It is compoundable, but only with the court’s approval. Any magistrate with jurisdiction over the case can hear it. Section 354A of the Indian Penal Code, 1860 According to this section, a male is deemed to have committed sexual harassment towards a woman when: direct physical touch and approaches with explicit sexual gestures: or, demand or proposal for sexual favours; or showing pornography against a woman’s will; or A sign that makes sexually coloured remarks. If a man commits the first three offences specified in the preceding bullets, he will face harsh imprisonment for a term of up to three years, a fine, or both under Section 354A of the IPC. if a man commits the offence of the final bullet, he shall be punished by imprisonment for a term of up to one year, a fine, or both. A Section 354A offence is cognizable, bailable, and can be tried by a magistrate. Section 354B of the Indian Penal Code, 1860 This section addresses the protection of women against men who assault or use illegal force against any woman, or incite such an act, to disrobe or force her to be naked. If a man commits such an offence, he will be sentenced to three years in prison, which can be increased to seven years, as well as a fine. Section 354B offences are cognizable, non-bailable, and can be tried by any magistrate. Section 354C of the Indian Penal Code, 1860 This section is about a woman’s privacy. Voyeurism is an act done when a male observes or photographs a woman doing a private act without her knowledge. If a man commits such an offence, he faces a minimum of one year in prison, which can be increased to three years, as well as a fine on his first conviction. In the event of a second or subsequent conviction, he will be imprisoned for a least three years, which might be increased to seven years, as well as fined. This clause punishes a male who purposefully captures photographs of a woman or watches her do a private act. if a woman consents to having her photos taken or permits for any activity but does not consent to the image or act being disseminated to a third party, and such image or act is disseminated by another person, he will be held accountable under…

Read More “Offences Against Women’s Modesty in India” »

Criminal Law, Indian Penal Code

Application And Diversion Of Income

Posted on By toahostinger No Comments on Application And Diversion Of Income

Certain basic concepts play a very basic role in calculating income tax. One such concept is income seeking. Closely related to this is another key concept called Priority Revenue Management. Application of income A careful reading of S.60 of the Act reveals that if an asset intended to generate income is not transferred, the income from that asset is included in the transferor’s income to calculate tax. In Life Insurance Company v. Commissioner of Income-tax, Bombay City, the question was whether under S.28 of the Life Assurance Undertakings Act, 1956. The appellant claimed that it was a diversion of revenue due to force majeure because part of the surplus had to be compulsorily paid to the central government. S.28 operates only after the surplus reaches the company and therefore the income is not diverted due to force majeure. S.28 provides how the surplus is distributed after its proper determination. The first mode of payment is exempt under the Income Tax Act, while the second is not. Basic charges Rs. 5,537 of those expenses and claimed a deduction from the amount of assessable income. The trial panel denied the deduction. He opined that the expenses were incurred after receipt of the income in the hands of the assessee and by the duty imposed on them by the testator. It was not about income diversification. The court rejected the contention of the assessee and held that since the assessee did not transfer the shares to her husband, she therefore retained the right to share in the profits of the company. He did not waive that right. Diversification of income The concept of revenue application cannot be fully appreciated without understanding the concept of revenue management priority. The following jurisprudence sheds light on the issue. In Raja Bejoy Singh Dudhuria Vs. The Commissioner of Income–tax, Bengal entered into a settlement decree between the stepmother and the Raja awarding a sum of Rs. 1,100 euros per month had to be paid for his maintenance. The court found that the amount paid by Raja to the stepmother was not his income. This was a case where the income was distributed on a preferential basis because the court was required to pay the entire resource of a Raja with a special charge to his stepmother. Assessing Officer in Commissioner of Income Tax, Bombay v. C. N. Patuck, received consent to divorce his wife. As a result of the settlement, the assessee made certain arrangements in favor of his two unmarried daughters. The decree dealt with a tripartite agreement between Messrs. Patrick and Sons, the assistant himself, and his two daughters. Raja Bejoy Singh Dudhuria Vs. The Commissioner of Income-tax The judge stated that the amount paid to the daughter was not her income and was not taxable. He claimed that the amount was diverted from the source and ceased to be his income when his daughter became privileged. On the other hand, the Department argued that the benefits were first paid to the assessee and then the assessee herself distributed the benefits to her two daughters. The whole arrangement was made only to ensure the upkeep of the two daughters. The district court gave the decision to the judge. The decision of the District Court was based on three reasons. First, the very fact that the parties considered paying the secured debt or the defendant’s debt in favor of their two daughters would lead to a collection of the payment immediately after the asset securing the payment was determined. The fact that they were parties to the agreement and that they agreed to pay each daughter from their wages the amount of maintenance owed to them and one-third of the profits of the partnership clearly shows that this was the intention of the parties. Which the source or benefits relate to. Therefore this part of the profit could never become the income of the assessee. The investigator agrees with the decision of the court. It has to be seen whether the income reached the assessee or not. When it reaches his hands, there can be no deviation. But if he acts only as a  collector of income, or because of some payment the income goes elsewhere, he cannot be taxed on that amount. Conclusion Income comes from a source. According to the Income Tax Act,  income is taxed when it arises. A taxable event is a source of income. When I earn income, I put it aside for certain things. Any income obligation is not taken into account when calculating the tax. Thanks to the ingenuity of the people, § 60 was established in the law. The purpose of the section is to curb vandalism, where individuals try to escape tax responsibility by transferring income.

Income Tax

Article 368 Amendment of Constitution

Posted on By toahostinger No Comments on Article 368 Amendment of Constitution

Abstract To govern a country requires laws framed and followed. These laws which describe the power and limitations of Government and the principal functions of the organs of Government, set out the framework of Government, such laws are known as Constitutional laws, written in a Constitution. As laws framed today may be good for the present situation but may not be good the for future, they lose their efficacy according to the changes in situation and time. Laws require changes according to time. So, our Constitution provides the provisions to make amendments in our Constitution concerning time. What are those provisions, how do they come into force, and how does the Supreme Court interpret these laws? What is the theory of the Basic structure of the Constitution? Introduction Every law needs to be modified according to the requirements of time and situation. If laws are not changed according to time it will result in revolution and other illegal methods for changes in laws will be followed. Art. 368 of the Constitution of India provides the provisions of amendment of the Constitution of India. As we know there are two kinds of Constitutions in the world. One is a Written Constitution and the other is an Unwritten Constitution. Written constitutions are rigid and amendments are difficult. Whereas the Unwritten Constitution is not so rigid. The Constitution of India is a written Constitution and a federal one. Provisions of amendment in the federal Constitution are more complex in comparison to the Unitary Written Constitution. Our Indian Constitution provides unique provisions of the amendment. For amendment in the Union’s subject, the provisions are different from the provisions of amendment in the state’s subject. The Constitution of India provides three different ways for the Amendment of the Constitution. The Supreme Court has given the principle of basic structure concerning the amendment of the Constitution. Necessity for Amendment of Constitution The provisions for amendment of the Constitution are made to overcome the difficulties that may be encountered in the future in the working of the Constitution. If no provisions were provided for the amendment of the Constitution, the people would have recourse to extra-constitutional methods like a revolution to change the Constitution. As discussed above the federal written Constitution are rigid. The framers of the Indian Constitution were keen to avoid excessive rigidity and were anxious to have a document that could grow with the growth of the Nation and adapt itself to the changes in need and circumstances of a growing Nation. But the framers of the Indian Constitution were also aware that if the Constitution was so flexible it would be a playing of whims and caprices of the ruling party. they adopted a middle course. It is neither too rigid to admit necessary amendments nor too flexible for undesirable changes. For amendment the various Articles of the Constitution are divided into three categories: Amendment by Simple Amendment by Special By Special Majority and Ratification of Ways of Amendment of Constitution of India [Article – 368] As discussed above our Indian Constitution provides three different ways to amend the Constitution of India. These are: Amendment by Simple Amendment by Special By Special Majority and Ratification of 1  – Amendment by Simple Majority: The amendments contemplated in Articles 5, 169, and 239-A, can be made by a simple majority. 2  – Amendment by Special Majority: Article of the Constitution which can be amended by Special Majority as laid down in Article 368. All Constitutional amendments, other than those referred to above, come within this category and must be effected by a majority of not less than 2/3 of the members of that House present and voting. 3  – By Special Majority and Ratification of States: The States are given a special voice in the amendment of the State list subject to Schedule VII of the Constitution. Procedure for Amendment of Constitution: It must be passed by each House by a majority of the total membership of that house and by a majority of not less than 2/3 of the members of that House present and voting. a Bill which seeks to amend the provisions mentioned in Article 368 which requires in addition to the special majority mentioned above the ratification by 1/2 of the States. Article 368, however, does not constitute a complete code. The process of amending the Constitution is a legislative process governed by the rules of that process. Amendment of Fundamental Rights and The Basic Structure of the Constitution The question of whether fundamental rights can be amended under Art. 368 came for the Supreme Court in Shankari Prasad vs. the Union of India. The Supreme Court held that fundamental rights can be amended by the use of Art. 368 of the Constitution of India. In Sajjan Singh vs. State of Rajasthan, again this question arises as to whether fundamental rights can be amended by the procedure of Article. 368. The Supreme Court approved the majority judgment of Shankari Prasad’s case and held that the word “amendment of Constitution” means an amendment of all the provisions of the Constitution. Then, in Golak Nath vs. State of Punjab, the question arises, the Supreme Court by a majority of 6 to 5 prospectively overruled its earlier decision of Shankari Prasad’s case and Sajjan Singh’s case and held that Parliament had no power from the date of this decision to amend PART III of Constitution. But after that, the Parliament brought the 24th Amendment Act, of 1971 which states that Parliament has the power to amend Part III of the Constitution of India. Then came the famous case of Keshvananda Bharti vs. State Of Kerala also known as the Fundamental Rights case, in this case, the Supreme Court gave the famous theory of the Basic Structure of the Constitution. The Supreme Court by majority overruled the Golak Nath’s case which denied the Parliament to amend Part III of the Constitution. The majority held that Article. 368 even before the 24th Amendment Act contained the power…

Read More “Article 368 Amendment of Constitution” »

Indian Constitution

The Sarna Code: A Movement For A Tribal Religion

Posted on By toahostinger No Comments on The Sarna Code: A Movement For A Tribal Religion

In November 2020, the Legislative Assembly of Jharkhand passed a resolution seeking the inclusion of ‘Sarna’ as a separate religion for the Census 2021[1]. A similar yet different motion was passed by the Legislative Assembly of West Bengal in February 2023, seeking a religion tag to ‘Sari’ & ‘Sarna Dharam’.[2] For the past few decades, the tribal communities of the Chhota Nagpur plateau have been demanding that they should be included in a separate religion, and their customs, rituals, and other societal functions as regards their communities should be governed as per the separate religion. classifications The reason behind such a demand is that presently the tribals are being classified either as the Hindus or the Christians or the Others. These classifications, according to them, have resulted in a Cultural Identity Crisis. They contend that their traditions, societal framework, beliefs, customs, rituals, and morals are entirely different from those of the Hindus, Christians & others. • They also don’t share a common link between them and the other religious communities. They do hold a different view as to the creation of the universe, the concept of God, the mode of worship, and the role of their belief in their day-to-day activities. The inclusion of tribals in the Hindu category by the Govt., the recent spike in the conversions of tribals to Christianity, and the inability to hold their forest rights due to the imposition of strict regulations by the forest authorities, have raised concerns in the Chhota Nagpur circles regarding the protection of tribals’ religious and cultural identity. Jal-Jangal-Jameen Nature, colloquially “Jal-Jangal-Jameen” is at the core of this issue. The Nature is being worshipped by the tribals. But with the discovery of rich minerals in the regions of tribal settlements, the Govts. have allowed (subject to law) the construction of dams, mining activities, and cutting down of trees to meet the demands of the surging population. As a result of this, the tribals are gradually losing their forest rights, and these forest rights are intimately attached to their life, culture, and beliefs. There is a feeling among the tribals that due to the lack of governmental recognition of their religion, all these incidents are happening. A number of tribal organizations are also mobilizing thousands of tribals for this cause. It is in light of these events that the tribals of the abovementioned region have initiated movements to acquire a separate religious status for their communities. But there remain certain legal issues attached to this Code. It is important that those people who are fighting for this cause should first address these legal topics, which the writer intends to highlight via this article.  What is “Sarnaism”? The Sarna is a faith, followed mostly by the tribals of West Bengal, Bihar, Jharkhand, and Odisha. The followers of this faith worship Mother Nature which shall include, the Water, Forests, and Lands.[3] The majority of its followers are tribals who also believe in totemism.[4] The believers of the Sarna faith offer oblation to their ancestors. And idol worshipping is not followed by the tribals following such faith. The fundamental part or the major component, constituting the Sarna faith is of worshipping Mother Nature. There are Sacred Groves in every tribal village. These sacred groves, according to them, protect their villages, families, agricultural fields, cattle, water bodies, and vice versa from evil/dark spirits. The followers of the Sarna faith worship these sacred groves. What is the “Sarna Code”? The Sarna Code stands for a set of laws that will recognize a new religion based on Sarnaism, separated from the Hinduism/Christianity/Other religion, and may redefine the various laws pertaining to the land, marriage, divorce, etc. which is currently applicable over the tribals. Although no such draft of the code is available in the public domain and the organizations fighting for this cause are yet to release any document in this regard, up to a certain extent, we can assume and analyze the legal hurdles associated with this issue, considering the organizations’ demands. Reference [1] THE HINDU, https://www.thehindu.com/news/national/other-states/jharkhand-assembly-passes-resolution-on-sarna-code/article33081116.ece (last visited Apr. 5, 2023). [2] THE ECONOMIC TIMES, https://m.economictimes.com/news/india/tmc-brings-motions-in-assembly-for-religion-tag-to-sari-sarna-dharma/articleshow/98024180.cms (last visited Apr. 5, 2023). [3] OUTLOOK, https://www.outlookindia.com/national/explained-what-is-the-sarna-religious-code-and-what-are-its-followers-demanding–news-230860, (last visited Apr. 5, 2023). [4] Vikrant Kumar & B Mohan Reddy, Status of Austro-Asiatic groups in the peopling of India: An explanatory study based on the available prehistoric, linguistic and biological evidence, INDIAN ACADEMY OF SCIENCES (15 April 2003), https://www.ias.ac.in/article/fulltext/jbsc/028/04/0507-0522.

Criminal Law, Indian Constitution

Schools Of Muslim Law

Posted on By toahostinger No Comments on Schools Of Muslim Law

Introduction:- Schools mean thoughts. Schools under Muslim Law are two:- Sunni school; & Shia The division between Sunni and Shia schools is not based on theological ground It is based on political grounds with respect to the appointment of a caliph and increased with the passage of time. Caliphs:- Abu Bakr Hazrat Umar Hazrat Usman-e-gani Hazrat Ali   Schools under Muslim Law:-  Sunni school’s sub-schools:- Hanafi School:- Founder:- Imam Abu Hanifa founded the Hanafi school Imam Abu Hanifa was born in 80 A.H.at Qufa. He has constituted a committee of forty people for the purpose of Codifying Islamic law and this committee took 22 years to complete its work. Hanafi School has solved almost 5 lakh legal problems. This collection is known as Kutubh-Abu-Hanifa. He died in 150 H. at the age of 70. Features:- The Quran is the most important source of Muslim Law, having dual purposes Provides law and Confers authority to another source. All traditions of the Prophet are not important only traditions that are established/approved and beyond doubt are important. Ijma can be of any age according to the changing needs of society/time. He accepted analogical deduction as a valid source of He founded a new doctrine called the Doctrine of Juristic Preference. Maliki School:- Founder:- Maliki School was founded by Imam Malik. Imam Malik was born in Madina He wrote a book called Muwatta. Features:- The Quran is the most important source of the law. He was in favor of those traditions which was similar to the practices of the people of Madina. He validates the Ijma of jurists and their successors. He preferred analogical deduction which was in consonance/conformity with the Quran and the traditions of the Prophet. He founded a doctrine of Public Good. Shafi’i School:-  Founder:- Imam Shafi’i was born in Ghaza, Palestine. He belongs to the tribe of ‘Quresh’ and was a ‘Hasmi’, remotely connected with Prophet. Features:- The Quran is the source of legal knowledge. He preferred sunnat over hadith. He was a strong supporter of Ijma He accepted and formulated a detailed rule into the application of analogical deduction as a source of Law He rejected both the doctrines of Imam Hanifa and Imam Malik.. Hambali School:- Founder:- Imam Muhammad Hambal was the founder of this School He was born in Baghdad. He belonged to the family of Shayban Abu Hanifa. was one of the famous disciples of Imam Abu Abu Hanifa. Features:- The Quran is the most important source of law. He accepted every kind of Tradition. He accepted but rarely used Ijma as a source of Law. He used Qiyas only in Share of necessity. Shia school:- Ithnā ʿAsharīyah:- believes in twelve Imam Ismailiya:- believes in seven Imam Zaidiya:- believes in four Imam PREPARED BY:- PUJA DWIVEDI, BIHAR UNIVERSITY.

Law