Author: toahostinger

History of the Constitution of India

September 25, 2024September 25, 2024 toahostinger No Comments

Basic Overview 1600- Arrival of the British : The British East India Company (EIC) arrived in India in 1600 as traders with exclusive trading rights granted by Queen Elizabeth I. 1764- Battle of Buxar : Transition to Power: Initially focused on trade, the EIC gained political power after winning the Battle of Buxar in 1764, securing Diwani rights (revenue collection) in Bengal, Bihar, and Orissa. 1857- British Crown Control: Following the Revolt of 1857, the British Crown took direct control of India from the EIC and ruled until India gained independence on August 15, 1947. 1950- Constitution of India: Formation of the Constitution: After independence, the Constituent Assembly was formed in 1946 to draft the Indian Constitution. Adoption of the Constitution: The Constitution of India was adopted on January 26, 1950. Full Concept History of the Constitution of India Regulating Act of 1773 Background: The British Parliament passed the Regulation Act of 1773 due to the inefficiency of the dual system introduced by Robert Clive in 1765. Purpose: This was the first step to regulate and control the East India Company’s affairs. Centralised Administration: It established a centralised administration in India. Hierarchy: Made the Governors of Bombay and Madras presidencies subordinate to the Governor-General of Bengal. Official Recognition: The political and administrative functions of the East India Company in India were officially recognised for the first time. Pitt’s India Act of 1784: Created a dual system of control with the British government having supreme control over the company’s affairs. Established the Board of Control to oversee the East India Company’s civil, military, and revenue affairs. Charter Act of 1793: Renewed the East India Company’s charter for 20 years. Allowed the company to continue trade and administrative functions in India. Extended the company’s monopoly on trade with India. Charter Act of 1813: Ended the East India Company’s monopoly on trade with India, except for trade in tea and trade with China. Allowed missionaries to come to India and promote education. Charter Act of 1833: Centralised the administration of India under the Governor-General. Ended the East India Company’s commercial activities, making it an administrative body only. Provided for the establishment of a law commission to codify Indian laws. Charter Act of 1853: Renewed the company’s charter but did not specify a time limit. Introduced a competitive examination for the recruitment of civil servants. Created a separate legislative council for India. Government of India Act, 1858: Transferred control of India from the East India Company to the British Crown. Established the office of the Secretary of State for India. Created the Indian Civil Service under the direct control of the British government. Indian Councils Act 1861: Introduced Indian representation in the legislative process. Allowed the Viceroy to nominate Indian members to his expanded council. Indian Councils Act 1892: Expanded the powers of legislative councils and increased the number of Indian members. Introduced indirect elections for the legislative councils. Indian Councils Act 1909 (Morley-Minto Reforms): Introduced separate electorates for Muslims. Expanded legislative councils at both central and provincial levels. Increased Indian participation in governance. Government of India Act 1919 (Montagu-Chelmsford Reforms): Introduced dyarchy in the provinces, dividing subjects into transferred and reserved categories. Expanded the central and provincial legislative councils and increased Indian representation. Indian Independence Act of 1947: Granted independence to India and Pakistan. Ended British rule in India. Provided for the partition of India and the establishment of two independent dominions, India and Pakistan.

Indian Constitution

The Empress vs Gonesh Dooley And Gopi Dooley 1879 Cal

August 25, 2024August 25, 2024 toahostinger No Comments

The Empress vs Gonesh Dooley And Gopi Dooley 1879 Cal (Snake Charmer’s Case) JUDGMENT by McDonell, J. Case Facts: Gonesh Dooley was accused of causing the death of a boy by placing a snake on him by exhibiting in public a venomous snake, whose fangs he knew had not been extracted, and to show his own skill, but without any intention to cause harm to anyone, placed the snake on the head of one of the spectators. The spectator in trying to push off the snake was bitten, and died in consequence. Issues Involved Prosecution’s Argument: The prosecution argued that Gonesh intentionally caused the boy’s death by placing the snake on him, knowing it was dangerous. They also argued that Gopi abetted Gonesh by encouraging or assisting him in the act. Defense’s Argument: The defense argued that Gonesh did not have the intention to kill the boy. They claimed it was a reckless act without the knowledge that it would result in death. They also argued that Gopi did not actively participate in the act and should not be held responsible. Court’s Reasoning: Courts Analysis: The court found that Gonesh did not intentionally cause the boy’s death. It was determined that he did not know the act was “so imminently dangerous that it must, in all probability, cause death” (the last clause of murder) Comparison with Previous Case: The court compared this case with another case The Queen v. Poonai Fattemah 1869, where the accused had intentionally caused a snake to bite the victim. The court noted that in Gonesh’s case, there was no such clear intention or knowledge of imminent danger. Without intention but knowledge: Court observed that in this case “that Gonesh did not think that the snake would bite the boy. But we think that the act was done with the knowledge that it was likely to cause death, but without the intention of causing death.” Conclusion: Sentencing: The court found that Gonesh did not have the intention to cause death but acted with the knowledge that his actions were likely to cause death. Therefore, he was sentenced under Section 304 Part II. Gonesh Dooley was sentenced to three years of rigorous imprisonment. Gopi Dooley, who abetted Gonesh, was sentenced to one year of rigorous imprisonment under Sections 114 and 304 of the IPC.

Criminal Law, Indian Penal Code, judiciary, Law

Assault and Battery

December 12, 2023August 19, 2024 toahostinger No Comments

Assault and Battery This article discusses assault and Battery, which fall under the category of torts. A tort is defined as a wrongdoing or an infringement of a right that results in legal obligation and is not covered by a contract. False incarceration is also a crime, as stated in “public nuisance is a crime as well as a tort”). The number of assault and Battery cases is rising daily. Introduction Assault and Battery fall under the tort, which is a civil violation classified as an intentional tort. The purposeful violation of another’s legally protected rights is referred to as an intentional tort. we could define assault as any action on the part of the defendant that immediately makes the plaintiff fear coming into contact with him. As a result, assault is committed when the defendant gives the plaintiff reason to believe that he will commit Battery against him through his actions. Typical assaults When someone points a pistol at someone else and threatens to shoot them, even if the victim later discovers the gun was not loaded or even real. The following are some characteristics of an assault: The act was meant to arouse fear of harmful or offensive contact. The act did arouse reasonable fear of such contact in the victim. A bodily threat gesture that is about to be made. A civil wrong known as Battery is defined as the willful and direct use of physical force against another person’s person or as the unlawful use of force against another person or their property, resulting in bodily harm or offensive contact. Battery attempts are considered assaults. An intentional tort is a Battery. Example Battery occurs when someone purposefully makes contact with another person that is harmful or objectionable. However, the Plaintiff is not liable if they granted explicit assent to the crime or inferred consent by taking part in a certain activity or circumstance (such as playing sports with the defendant).[i] Historical Background of Assault and Battery Modern tort law recognises certain “intentional torts,” or legal claims that can only be made when the defendant acted with the intent to harm the plaintiff or with a high degree of certainty that the plaintiff would be harmed. Several “classic” intentional torts, recognised as grounds of action for centuries, such as assault, Battery, false imprisonment, trespass to chattels, and trespass to real property, are examples of current intentional torts. Newer causes of action such as deliberate infliction of emotional distress, intentional interference with contracts, and intentional interference with prospective advantage are included in modern intentional torts. [ii] But there was no such thing as an “intentional tort” in tort law before the latter part of the nineteenth century. The actions for the “classic” intentional torts mentioned here were typically brought in trespass cases, which did not call for an intentional injury claim.2 The more recent intentional torts received very little recognition. Types of Domestic Assault and Battery Misdemeanor[iii] Domestic assault and Battery, defined as the purposeful and unlawful attempt, offer, and subsequent use of violence against a person with whom the offender currently has or formerly had a close, intimate relationship, constitutes the first offence. First-time domestic assault and Battery with a minor present – The same as above, but with a minor child in attendance at the time of the alleged event. First-time Domestic Battery and Assault of a Pregnant Woman is the same as Domestic Battery and Assault, but the alleged offence is committed with the knowledge that the victim is expecting a child. FELONY[iv] Domestic assault and Battery on a second or subsequent offence is the same as domestic assault and Battery on a first offence. It makes no difference if the “victim” is a different person or how minor the purported “injury” may be. Domestic assault and Battery in the presence of a minor on a second or subsequent occasion is the same as domestic assault and Battery on a first occasion in the presence of a minor. Additionally, exactly with the 2nd Offence Domestic Assault and Battery, the victim’s identity, the child involved, and the severity of the injuries is irrelevant. The second offence of domestic assault and Battery on a pregnant woman is the same as the first offence, with the exception that this is the second or subsequent offence. It should be highlighted that similar to the other charges, it is irrelevant whether or not the alleged victim is the same, whether or not the victim is pregnant, or how severe the injury is. It should be mentioned that the severity of the punishment is GREATLY raised IF the unborn child is hurt or the claimed mistreatment results in a miscarriage. Domestic Battery and strangulation assault[v] With the exception that the claimed crime involves some sort of strangulation, this is the same as domestic assault and Battery. The legal definition of strangulation in Oklahoma is as follows: “Strangulation means any kind of asphyxia, including but not limited to, closure of the (blood vessels)/(air passages)/nostrils/mouth as a result of external pressure on the head/neck.” It should be noted that even “attempted” strangulation can result in the filing of a criminal charge in addition to strangulation, which results in an automatic felony charge. Domestic Assault and Battery Causing Great Bodily Injury[vi] Domestic assault and Battery are involved here, however, the severity of the alleged victim’s injuries is taken into account. Great bodily injury, according to Oklahoman courts, is defined as any bone fracture OR any prolonged and evident disfigurement OR any prolonged (lengthy period) loss/impairment of function of a body part/organ OR that created a significant risk of death for the accused victim. Domestic Assault and Battery With Deadly Weapon[vii] Except that a legal “deadly” instrument or weapon was used in this domestic assault and Battery. You’ll see that four sorts of domestic assault and Battery fall under the misdemeanour category. We refer to these as predicate offences. No matter how serious the allegation or injury, if you ever enter a plea to one…

Rights And Duties Of Partners

November 29, 2023 toahostinger No Comments

Rights And Duties Of Partners The basic aim of this research article is to understand the rights and duties of partners in a partnership business and to know the laws through which they are governed and related statutes as well. Now it becomes crucial to first understand the concept of partnership to understand the obligations and rights of a partner. [A partnership is a relationship between the persons who have agreed to share the profits and losses of a business carried on by all the partners or any of them acting for all]1. Introduction : A partnership is one of how business can be carried out where two or more persons join together to create and run the partnership business. The persons who have entered into a partnership with one another are called individually ‘partners’ and collectively a ‘firm’. The law relating to partnership in India is contained in the Indian partnership act, 1932 which is concerned partly with the rights and duties of partners between themselves and partly. A partnership company usually has an agreement that includes each partner’s duties and rights however, in the absence of a contract there are laws that the partners need to follow to be legally correct. Another fundamental of a partnership is that partners’ relationships with one another must be in the utmost good faith. Section 4, Indian Partnership Act, 1932 Background : The Indian Partnership Act 1932 was passed by the legislation and received its assent on 8th April 1932 and came into force on 1st October 1932. The principles of the partnership were first contained in chapter 11 (sections 239 to 266) of the Indian Contract Act, of 1872. With the development of the economy, trade, and commerce in India it was felt that these sections were not sufficient and hence a need for a separate partnership act was felt. Thus, the Indian Partnership Act came up and sections under the Indian Contract Act containing partnership laws were repealed. the present partnership act is based on the English Partnership Act, 1890 with required modifications. Besides the Indian Partnership Act 1932 partnership laws in India are also governed by the Limited Liability Partnership Act,2008 which is concerned with limited liability partnerships. In an LLP the partners have limited liability. There is no overlapping between the provisions of these two statutes. The Limited Liability Act allows Indian businesses to combine professional expertise with new ideas and entrepreneurial initiatives and renders support for them to operate efficiently and innovatively. An LLP allows its members to undertake limited liabilities while structuring their company as a partnership. Rights and duties of partners : Partners can determine their mutual rights and duties by a contract called a partnership deed which deals with aspects of general administration such as, which partner will do what work, and what will be their share in profits, it may be made or varied by express or implied consent of all the partners. section 11 provides that subject to the provisions of the Indian Partnership Act, partners can use this agreement to prohibit each other from carrying on any business other than that of the firm. Now let us look at the duties and rights of partners as per this Act – Duties of partners : Duty to act honestly and render true accounts (section 9) – partners are bound to carry on the business of the firm to the greatest mutual profits and to be true and faithful to each other. The partners must try to ensure that the business makes the most revenue possible. partners also must render true accounts and full information of all things which may affect the firm, to any partner or his heir or legal representative. Duty to indemnify for the loss caused by fraud (section 10) – if a partner’s action leads to a loss to the company’s performance, then they must reimburse their partners for that loss. Duty to be diligent ( section 12 b) – A partner is required by section 12 (b) to fulfill their responsibilities diligently. according to section 13(f), a person must hold the company harmless for any damages resulting from his wilful negligence. Proper use of the partnership firm’s property ( section 15) – Subject to the contract between the partners the property of the firm shall be held and used by the partners exclusively for the business. Duty not to compete (section 16) – If a partner derives any profits for himself from any transaction of the form or the use of the property or business connection of the firm or the firm name, he shall account for that profit and pay to the firm. Rights of the partners: Right to participate in the operation of the business (section 12 a ) – As a partnership firm is a corporation of the partners and their management abilities are typically coextensive, all the partners of a partnership business have the right to participate in the business conducted by the company. Right to consult ( section 12 c ) – When a disagreement of any kind emerges between partners in a company over commercial matters it will be settled by the majority opinion of the partners. Before a decision is taken every partner in the organization is entitled to voice their opinion, however, changes to the company’s business activities cannot be made without the approval of all the partners. Right to access the books (section 12) The partner has the authority to examine and if necessary, obtain a copy of the books of accounts however this right must only be appropriately used. Right to claim remuneration, profits, and interest on capital (section 13 a to 13 d) – A partner is not entitled to receive remuneration for taking part in the conduct of the business. A partner making, for business, any payment or advance beyond the amount of capital he has agreed to subscribe, is entitled to interest thereon at the rate of 6% per annum. Right to be indemnified (section 13…

Legal

Police Brutality

November 11, 2023 toahostinger No Comments

Police Brutality This article tries to highlight police brutality, which is when the police use excessive force because police brutality seriously violates human rights. It can be said that society is impacted by the police’s harshness, cruelty, and ruthlessness towards helpless and vulnerable people. The state’s most powerful and in charge branch of government is the police. They are employed to help those in need, settle disagreements and disputes, assist the weaker groups, offer security and recourse, and uphold law and order in the community, but officers abuse their authority. The history of Indian police will be discussed in this article, including how it first developed and its current structure. Further articles describe an analysis of police behavior in which ways police misuse their power or which type of excessive or physical force is used by the policeman. The article also focuses on police brutality laws, controls, and police complaint procedures. Introduction The word police are derived from the Latin word “Politia”, which means state or administration. The Police Act, of 1861 defines the term police in section 1 as “police” includes all persons who shall be enrolled under the Act. The word brutality is derived from the French word “Brutal” which means severity, harshness, or fierceness. It is the psychological or physical intimidation of innocent people through a variety of tactics, such as unlawful detention, torture, abuse, physical assault, etc. The police’s roles and responsibilities include serving the community, reducing crime, upholding the rule of law, settling interpersonal issues, etc. When people disobey the law and order, the police may use excessive force to quell the violence, which is when police brutality happens. Sometimes it is based on racial discrimination means discrimination against any person based on caste, creed, region, religion, sex, etc. Police brutality can be mental, physical, verbal abuse racial profiling, and false imprisonment. There are so many nations with laws against police brutality. Although it is considered a serious infraction, there are still many instances where citizens’ or victims’ complaints never even get to the point of an investigation. Historical Background Of Police In India The pre-19th-century background of the police in India will be covered in this essay. The notion of a separate regular police force did not exist throughout the British era, and the relevant period was immediately following the creation of the rule. Warren Hastings initiated several laws for police reforms in 1774 during the Company’s authority, which subsequently culminated in the Police Act of 1861. The execution of the recently constituted Sindi territory was given to Sir Charles Napier. To capture this dangerous and crime-ridden area, he reorganized the local police apparatus, ensuring that it would provide the required outcomes and operate as intended. After independence, Sardar Vallabhbhai Patel, the first Union home minister, recognized the importance of civil services in India, and the Islington Commission Report first referred to it as the Indian Police Service in 1917. Numerous acts were passed after independence, including the CRPF Act, of 1949, The Kerala Police Act, of 1960, and The Mysore Police Act, of 1963, etc, were promulgated. In 1951 the All India Services Act was enacted constituting an All India Service known as the IAS and IPS. Read Also Freedom Of Speech Kinds Of Police Brutality Illegal Detention The term “illegal detention” describes constraints placed on a person by police officials acting within the scope of their legally recognized authority to administer the legal process but without any legally recognized justification, such as a valid arrest warrant, reasonable suspicion, or permission. It is also known as a false arrest or detention. Racial Discrimination Racial discrimination is when police officers treat poor people unfairly or illegally based on factors such as caste, creed, color, gender, sex, religion, age, region, etc. Police personnel reject complaints from people of lower castes. Sexual Harassment When police officers act improperly or abuse their authority by physically, verbally, or orally assaulting somebody, it is known as sexual harassment. It refers to any victim or prisoner being harassed illegally. For example, sexual assault during a late-night traffic stop, and coercive, rape by a corrections officer. Wrongful search and seizure In many common and civil law legal systems, wrongful search and seizure refers to the practice of police officers or other authorities and their agents searching a person’s property while under suspicion of committing a crime and seizing any evidence they find that is connected to the crime. Only a few nations’ constitutions include clauses guaranteeing people’s freedom from “wrongful or unreasonable searches and seizures.” The main premise of this right is that everyone has a legitimate right to privacy. Laws Related To Police Brutality The organization is recognized by the constitution as a quasi-federal body that is specified in Article 246 and listed in the State List of the Seventh Schedule and it is outside the scope of the state’s particular government’s authority to enact laws governing the police in that state. But policing directives are entirely federal. The Indian Police Act of 1861 governs the country’s police administration. This act has been passed by 28 Indian states and 8 union territories. After all, there are numerous contradictions or issues in the Indian police system. There Are Mainly Three Types Of Laws Under Which A Case Can Be Filed Against Police Brutality Public Law Criminal Law Private Law In this article, we will deal with two laws i.e., Public and Criminal law because most cases are filed under these two laws. Public law The Indian Constitution is where public law for police administration first appeared. In the third part of the constitution, which addresses violations of fundamental rights, the courts have consistently held the police force and the state accountable for excessive force under public law and assessed damages and punishment against both the state and police officers. Criminal law Under Sections 197 and 132 of the Criminal Procedure Code, police systems are liable to be protected from unjustified allegations. The Criminal Procedure Code, which was passed in 1973, provides procedural safeguards to police…

Literal Rule of Interpretation of Statutes

November 10, 2023 toahostinger No Comments

Literal Rule of Interpretation of Statutes The knowledge of exact interpretation is based on the capability to study what is conveyed in plain language, reread the lines, scan ‘through’ the provision, catechize the intent of the Legislature, and vociferate against case laws and other aids to interpretation. This article concentrates on the guidelines to be kept in mind while applying it and the critique of this rule has been discussed in this article. Introduction The Latin term ‘interpretation’, out of which the term ‘interpretation’ is concluded, indicates conveying or simplifying especially the real significance of something. It is an imitation by which the court seeks to discover the true definition of the statute and decide the purpose of the legislature i.e. correct understanding of the law. The functions of Judges in interpreting statutes are twofold. First as per the exact meaning of what the legislature has said (express). Second is what the legislature intended to have said (intending). Interpretation is the main feature of a court and some elements that have been developed out of the continual activity by the court are known as rules of interpretation. These rules out ambiguity. When the words of statutes are unclosed to more than one interpretation, then the court will have to choose the purpose of the legislature which is used in approving a statute portraying the true purpose of the legislature and these elements are Literal Rule, Golden Rule, and Mischief Rule. Need for Interpretation of a Statute The purpose of the interpretation of statutes is to settle down the purpose of the legislature communicated specifically or implicitly in the language used. Interpretation is as old as language. Detailed interpretation regulations were improved even at a very primal stage of the Hindu society and culture. The significance of escaping literal interpretation was also exhausted in varied ancient textbooks-“Merely following the texts of the law, opinions are not to be untainted, for, if such decisions are deficient in equity, a gross failure of Dharma is caused.”[1] We can say, that the interpretation of statutes is needed for two basic reasons i.e. to realize: Legislative language- • Legislative language may be complex for a layman, and hence may need interpretation, and Legislative Intent- The intention of legislature or Legislative intent equates to two aspects: The concept of ‘meaning’, i.e. what the word means; and The concept of ‘purpose’ and ‘object’ or the ‘reason’ or ‘spirit’ penetrates through the statute. The statute must be read as a whole in the context The statute must be construed to make it effective and workable The process of construction combines both the literal and purposive approaches. The purposive construction rule highlights that you should shift from literal construction when it leads to absurdity. Literal Rule of Interpretation This rule is also known as the grammatical rule of interpretation or the plain meaning rule. This rule states that the words used in the legal text are to be explained or understood in their natural or simple or dictionary meaning. • This rule is considered to be the most important and safest rule of interpretation. It is the first rule applied by the judges. It is only applied if the language or words of the legal statute are crystal clear and there is no confusion. The law has to be considered as it is and judges cannot go beyond ‘litera legis’ i.e. letter of law. The words of the statute are to be understood in their natural, ordinary, and popular sense. Rules to be followed in Literal Rule of Interpretation Ejusdem Generis The term “ejusdem generis” means “of the same kind”. According to this rule, if several enumerations belonging to the same genus are used in a provision, the meaning of the general word following them gets restricted to that genus only. If the law refers to cars, trucks, tractors, bikes, and other motor-powered vehicles, then it shall only include roadways and no other mode of transport. Regina v. Edmundson[2] In this case, Campbell set out the principle of interpretation known as ‘ ejusdem generis’. This rule provides that if there is a series of some particular words then the word following that series must be about that series. This helps judges to restrict the wide ambit of the general expression. Thus the requirements for the application of ejusdem generis are there must be the enumeration of specific words, the general term must follow a specific term, there must be no different intention of the legislature to the general term, the series of enumerations should constitute class or category and the category should not be exhausted. Evans v. Cross[3] In this case, the court had applied the ejusdem generis rule. Section 48(9) of the Road Traffic Act, of 1930 was in question. The definition of “traffic signals” under Section 48(9) of the Road Traffic Act, of 1930 includes all signals, warning signposts, signs, or other devices. Casus Omissus The term “casus omissus” means cases of omission. That means omission in a statute cannot be supplied by construction. The court can interpret the law but cannot legislate. S.P.Gupta v. President of India[4] In this case, the court held that when the language of a statute is clear and unambiguous there is no room for application of the doctrine of casus omissus. Jacob Mathew v. State of Punjab In this case, Section 304-A IPC was construed by applying casus omissus. This section provides that whoever causes the death of any person by doing any rash/negligent act not amounting to culpable homicide shall be punished with imprisonment of a maximum of 2 years or a fine or both. Here, the court supplied the word “gross” for rash and negligent acts. And the court said that there is no omission, it is just to make legislative intent much more clear. R v. Inhabitants of Sedgley In this case, the Poor Relief Act 1601 levied taxes on ‘lands, houses and coal mines’. There was an issue of whether the taxes could be levied on owners of…

Legal, Uncategorized

Judicial Review Protecting The Spirit Of The Constitution

November 5, 2023 toahostinger No Comments

Judicial Review Protecting The Spirit Of The Constitution Article 13 aids the court and citizens to keep the power of the legislature under the survivals Article 13 describes the means for judicial review it enjoys a duty on the state to respect and implement the fundamental right and at the same time Article 13 confers the power on the code to declare a law or act as a void if it infringes the fundamental right that judiciary place an important role as a protector of the guardian of the fundamental right the primary responsibility of the implementation of the rule of law lies within the judiciary that purpose of judicial review is to ensure that democracy is inclusive and there is accountability for those who are in power. The Constitution of India has guaranteed the power to the Supreme Court and High Court of judicial review to protect the spirit of the Constitution which means fundamental rights the legislative bodies have the law-making power but judicial bodies have the power to review laws whether they violate the basic principle of the fundamental right to protect the fundamental right Supreme Court and High Court design with the power of judicial review. Introduction Law plays a very crucial role in today’s society we the people of India have given up on our rights and entered into a contract with the Government of India in which the government gave us protection against the wrongdoing of the society this is also known as social contract theory which was propounded by Hobbes. To protect the law from getting miss used by arbitrary power and to keep the check and balance on the power of each government the doctrine of judicial review was adopted by the US Constitution doctrine of judicial review first time was used in the Marbury v/s Madison case in the USA in 1803 Through using the instrument of judicial review the court can declare any law as void which goes against the Constitution and its fundamental principle it took a lot of time and patience to fix and feature judicial review in our Constitution judiciary has played an important role concerning judicial review, judicial review can be made in the Constitution amendment legislature action laws made by the legislature. Court has declared judicial review as the basic structure of the Constitution which means it can never be amended or can never be removed. We have three organs of government in our society legislature executive and judiciary legislature makes the law executive implements and executes the law and the judiciary keeps checks on both of the organs but these powers have not been implied in the strict sense. The power of judicial review is vested in articles 1332 131 to 136 143 to 26 145 246 251 254 and 372. History Of The Judicial Review The doctrine of judicial review was laid down in Marbury v. Madison Judicial review was the act that came from the case of Marbury v. Madison in 1803 it was the landmark case of the US Supreme Court which established the principle of judicial review in the U.S. The origin of this case was in 1801 when President John Adams was supposed to leave the presidential house of the US as he lost the election to the upcoming President Thomas Jefferson in 1800 just before 2 days of expiring of his tenure as president in March 1801 he appointed several judges who supported his federalist party. But current Secretary of State John Madison was unable to deliver all the commissions of the New judges before Adams’s departure later Jefferson the new President believed that undelivered commissions were void and instructed Madison not to deliver them one of the undelivered commissions was of Williams Marbury was a Maryland businessman and a strong supporter of Adam when Madison continuously refused to deliver his commission, the Marbury Supreme Court filed a writ petition under the mandamus asking the court to force Madison to deliver his commission. The later court refused to entertain the plea and opposed the order of legislature this is when the use Supreme Court struck down the doctrine of judicial review. What can be obtained by maintaining the principles of judicial review? The supremacy of the Constitution is maintained The Constitution is supreme and the law of the land it is important to maintain its dignity and to check that any law any act does not hear or violet the authenticity of the Constitution judicial review keeps check and balance on the power of the legislature and does not allow them to make any law which can violate the spirit of the Constitution. Federal Equilibrium State and union have been allotted different sectors to make law in their list but whenever there is a conflict arising between the union and State judicial review handles the dispute to solve the problem arising between both union and State this way judicial review maintains the federal equilibrium between the government. protection of Fundamental rights. The major role of judicial review was to protect the fundamental rights that were provided to the citizens of India due to the protection of judicial review no law can touch Independence of judiciary Judiciary is the one of the main organs of society if the judiciary does not work independently, it will not be able to deliver fair and just justice to the victims so the judicial review does not allow the legislature or the executive to interfere in the work of the judiciary. Intercepting the misuse of With so much power legislature and executive can perform certain activities which are not valid in the Constitution so to protect the misuse of the power of the executive and legislature judicial review plays an important role. Features of Judicial Review Judicial review power can be exercised by both the Supreme Court and High Courts Under Article 226 of the Constitution, a person can approach the High Court if his fundamental right is violated or any legal…

Indian Constitution

Honour Killings In India

November 4, 2023 toahostinger No Comments

Honour Killings In India Honour killing is one of the cultural offences in the nation. The killing of a (usually female) family or clan member by one or more (mainly male) family members who feel the victim has brought dishonour upon the family, clan, or community is frequently referred to as a “customary killing“. As honour killings are not gender-specific, many of their occurrences go unreported and uninvestigated due to the embarrassment that such an admission would entail. The main goal is to make the family member look bad. Three sections make up the current article. In the first section, there is a brief discussion of the definition of honour killing and its reasons. The laws that are already in place and those that have been proposed for judicial decisions to stop them are also included in the second part. The third and last portion of the article explores the potential for additional rules and regulations to apply to it. Introduction Honour killings are carried out by relatives who believe that doing so will purify their group. They murder one of the members to earn back the family’s reputation and rid them of the shame and disgrace that that person had brought upon them. A male relative murders the female who disobeyed them and disobeyed the family. This is a type of premeditated murder perpetrated against the person who disgraced the family. Most often, these behaviours result from triggers set off by close family members, the community, or nearby neighbours who make the accused feel degraded and agitated. Most of these are directed at females who are thought to have committed sexual or marital crimes. When a member of the community chooses someone from a different caste, it creates inequity in a society where everyone is treated fairly and without prejudice. Since a girl’s caste and position shift when she reaches her husband’s home, caste and status are the main causes of it in the modern world. The study’s objectives are to learn more about honour killing, emphasise its seriousness, educate society about its repercussions, and look into the contributing elements. Background In many different societies today, honour killing is still a long-standing ritual. It started long before the Islamic era, but they were more common during it. Some authors assert that honour killing happens everywhere, while others assert that it is specific to certain communities in Southeast Asia and the Middle East, where it is deeply ingrained in traditions and customs that date back to ancient times. Some analysts claim that the Baleech and Pashtun tribes of Balochistan engaged in the practice of honour killing. In the past, adultery and rape were regarded as immoral behaviours in Rome, and women’s lives were taken to preserve the honour of the home and community. Women are seen as less than men in Greek society, but they are also the victims of men. It has been proven that numerous women were executed for adultery or on suspicion of adultery in ancient Egypt and among American tribes under the guise of honour crimes. Definition Of Honour Killing According to Human Rights Watch, “honour killings” are acts of violence, most often murder, carried out by male family members against female family members who are believed to have tarnished the family name. For many reasons, a woman may come under the family’s wrath, such as refusing to participate in an arranged marriage, being the victim of sexual assault, requesting a divorce—even from an abusive husband—or engaging in adultery. An attack on a woman’s family can begin simply with the idea that she has acted in a way that “dishonours” them. Reasons Of Honour Killing The following are the specific justifications for honour killing. Refusal to accept an arranged marriage: Whether a male or female family member refuses to accept the marriage that has been planned by the family, they will be slain for the benefit of the family. When a person declines the marriage that the family has arranged, the family members experience a certain amount of guilt. Divorce: The victim of an honour killing would be a married person who sought a divorce due to problems in their marriage with their family. When a member of the family feels that the victim would rather die than live, they may decide to kill the person themselves rather than seek a divorce because it will damage the family’s reputation. Family member allegations and rumours: The victim may become the target of family member allegations or rumours spread by the community at large. Because of their status and reputation, the family members would murder the member, whether they knew the truth or not. According to them, killing the victim will boost the family’s reputation and position. Homosexuality: It is now considered normal when love develops between people of the same sex. When a couple of the same sex wishes to live together, the family or society forbids it, which in turn leads to more and more accusations and upsets the family members. Victims of rape: Women are being raped in a society where they ought to be protected. In that scenario, it is the responsibility of the family to accept such victims, but they see it with shame and believe the girl’s life is over and she is wholly useless to them and society as a whole, so they plan to kill her. Inter-caste marriage: When a victim marries someone from a different caste, the party who views their caste as significant and more important than their family members suffers. In this situation, the lower caste member would rather kill the victim than allow them to live by raising their caste. They would kill the victim even though they were a member of their family in cases where the victim belonged to a lower caste because caste is the foundation of their prestige. Not only do their family members become victims, but the other party they want to live with also suffers. Legislative Framework Concerning Honour…

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Indian Constitution, Law

General Exceptions under IPC

November 4, 2023 toahostinger No Comments

General Exceptions under IPC According to the Indian Penal Code, Mens rea and actus reus are the two essential components of the commission of crime. Within this article, I have enumerated Chapter IV of IPC i.e. Exceptions. This article deals with the nature and the categories of the protection given to the criminal to make his offence a non-offence. I have also enumerated several case laws along with a brief explanation of the general defences. Sections 76 to 106 provide for the right of the people to protect their own life and limb and also of others. This provision gives a chance to accuse to prove himself non-guilty. Introduction The general exceptions/defences contained in Section 76-106 make a violation a non-violation. These are the defences which absolve the accused from any violation liability. This part has been framed to remove the repetition of exceptions in every penal clause and the legislature by S.6 IPC, 1860 enacted that all the definitions must be considered because of the exceptions. Application of Exceptions The court shall presume that there is not any presence of chances and it has to be proved by the accused. Because it is given in Section105 of the Indian Evidence Act that when a human has done any kind of violation, the pressure of showing the existence of scenarios of exceptions or within any special exception or proviso is upon him i.e., accused and the court shall assume the absence of such circumstances.[1] Investigation shall not confine merely to the acts done by a person. Depending on the facts and circumstances of each case, many other relevant facts have to be investigated in the light of expressions contained in “General Exceptions”. Then only will be able to confirm whether this act carried out by a human is a violation of law or not. The General Exceptions are discussed below: Mistake of Fact S.76 and 79 are based on the expression that Ignorance of fact is an excuse but ignorance of law is not an excuse. The characteristics are; A crime must be done by a person He must do that act by mistake of fact He must do it in good faith Queen v. Tolson[2] In this case, the petitioner tied the knot of marriage in 1880. In 1881, her husband went missing. Then believing her husband to be dead, she tied the knot of marriage with another male. Now, 11 months later her previous husband turned up and filed a case against her for the violation of bigamy. It was assumed that the belief of the death of her husband was a mistake of fact by the appellant and thus, she would not be charged with an offence of bigamy. Reg v. Fredrick Jones In this case, a loaded gun was not known to be loaded by the person handling it and he pressed a trigger. But, due to a gun being loaded a person died. It was held that it was a mistake of fact that the gun was not in a loaded situation with the knowledge of the person handling it. So, he was not held liable under Section 302 IPC. M.H.George v. State of Maharashtra[3] India recently passed a law prohibiting carrying that much gold through India. He was hiding the gold in his jacket, that too 34 kg of gold. It was held that even if M.H. George didn’t know the law it was no excuse, he was supposed to know it. Ignorance of law is no excuse and he was held liable under the relevant provision. State of Andhra Pradesh v. Venu Gopal[4] In this case, police arrested a person on suspicion that he had received some stolen property and was involved in housebreaking. The prosecution alleged the police for wrongful confinement and torture for taking out a confession by him. The trial court convicted the police. High Court acquitted giving them the defence of Section 79. Supreme Court said that ‘this view of High Court is wholly unwarranted in law’. Beating and torturing have no relation to the process of investigation. S.76 talks about bound by law and Section 79 talks about justified by law. But, in both sections, there must be bonafide intention i.e., good faith. That means, S.76 says about legal compulsion and Section 79 says about legal justification. Good Faith = Due care + attention. Judicial Acts Section 77 provides two types of protection to the judge. First, he is protected if he proceeds irregularly in the exercise of a power which the law gives him. A special immunity is provided to judges for the sake of fearlessness and independence of administration of justice. To avail of this immunity, the act must have been done by a judge in the discharge of his official duty, the deed done must be within his jurisdiction and the act must be performed in good faith. Accident The main objective for providing this defence is that there is no criminal intention (men’s rea) in the Accident if these 5 conditions are fulfilled: The act is done by accident or misfortune (An accident is such an incident that can’t be interpreted by an ordinary prudent man whereas misfortune is such an accident with harmful consequences). Lawful act is to be done Lawful acts must be done in a lawful manner Jageshwar v. Emperor[5] The accused was hitting the victim with his fists but accidentally hit his wife who was holding her 2-month-old child. The blow hit the head of the child which resulted in his death. It was held that even though the child was hit by accident, the act was not lawful. Thus, the accused would not be given protection under Section 80 IPC. Necessity Section 81 IPC is based on the doctrine of jus necessitates. The ingredients of Section 81 are the act must have been done under good faith and there must not be men’s rea. It is to be noted that there is no intention but knowledge and it…

Indian Penal Code

Freedom of Religion

October 21, 2023 toahostinger No Comments

Freedom of Religion People of Asia are very closely related to their religion. For people religion is everything, they want to follow their religion and live their life with their religious beliefs. What is the Right to Freedom of Religion guaranteed by the Indian Constitution? As India is a Secular country, the word secular is interpreted with different meanings all over the world. So, What is Secularism in India? How it is introduced in Indian Constitution and how it is different from other countries. What is religious freedom according to the American Constitution? How the Supreme Court of India has interpreted Freedom of Religion and what are reasonable restrictions on this freedom? Introduction Religion is deeply connected to the people of Asia. As in the case of India, a country with a history of the oldest civilization having faith in religion. In India people have been followers of their religion since ancient times, they worship their Gods according to their beliefs. India has a vast diversity of people with different religious beliefs. So it is very essential to understand ‘what is religion?’, ‘How it is interpreted in India?’, So that we can understand its freedom and restrictions in the current period what role does the Supreme Court of India play in the protection of these freedoms, and how does the Government control it with reasonable limits? As no right can be provided without any restrictions for its effective enjoyment. So what are reasonable limits concerning Freedom of Religion? How does India with a diversity of people be able to secure its secular status how Secularism is interpreted in India and how it is different from other countries of the world? So to completely understand these questions we need to know what is religion. What is Religion? A belief in the existence of God, who is superior to everything and is the controller of everything in the universe. A person is said to be a follower or believer of a religion who follows the religion in the manner provided by that religion and worships God as per that religion. The word religion is nowhere defined in the Constitution of India and indeed it is a term that is hardly susceptible to any rigid definition. The Supreme Court of India has defined the word religion in its various judgments. In H.R.E vs L.T.Swamiar, the Supreme Court interpreted religion broadly as a matter of faith with individuals or communities and it is not necessarily theistic. A religion may only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies, and modes of worship which are regarded as integral parts of religion, and those forms and observances might extend even to matters of food and dress. Fundamental Right of Freedom of Religion [ Article -25 ] The right is not absolute, this right is subject to public order, morality, health, and the other provisions of Part 3 of the Constitution. Also under sub-clauses a and b of cl 2 of Article.25, the state is empowered by law (i) to regulate or restrict any economic, financial, political, or other secular activity that may be associated with religious practice, (ii) to provide for social welfare and reform, and to throw open Hindu religious institutions of a public character to all classes and section of Hindus. Thus, under Article 25(1) a person has twofold freedom; (a) freedom of conscience, and (b) freedom to profess, practice, and propagate religion. The freedom of conscience is the absolute inner freedom of the person to mold his relation with God in whatever manner he likes. To ‘profess’ a religion means to declare freely and openly one’s faith and belief. • To ‘practice’ religion is to perform the prescribed religious duties, rites, and rituals, and to exhibit his religious beliefs and ideas by such acts as prescribed by the religion. To ‘propagate’ means to spread and publicize his religious view for the edification of others. But the propagation only indicates persuasion and exposition without any element of coercion. Restrictions on Freedom of Religion As no right is absolute, every right is subject to some restrictions. The reasonable restrictions on Freedom of Religion as provided by the Constitution of India are : 1-Religious liberty subject to public order, morality, and health: In the name of religion, no act can be done against public order, morality, and health. Such acts, which fall under these restrictions can not be justified on plea of practice of religious rites. In the name of religion ‘untouchability or traffic in human beings’ can not be tolerated. 2-Regulation of economic, financial, political, and secular activities associated with religious practice: The freedom to practice extends only to those activities which are the essence of religion. It doesn’t cover secular activities that do not form religion’s essence. It is not always easy to say which activities fall under religious practice or which are of a secular, commercial, or political nature associated with religious practice. Freedom to Manage Religious Affairs [ Article 26] : Article 26 of the Constitution of India Guarantees certain rights to the religious denomination of any section of religion. The word Denomination is not defined in the Constitution of India. According to Webster’s Dictionary, it means “Collection of individuals classed together under the same name”. The Supreme Court of India in S.P.Mittal VS Union of India provided three requirements to be fulfilled for being a religious denomination, requirements are: [1] It must be a collection of individuals who have a system of beliefs that they regard as conducive to their spiritual well-being. [2] must have a common organization. [3] It must be designated by a distinctive name. So, what Art. 26 says is that, subject to public order, morality and health every religious denomination of any section of it shall have the following rights: To establish and maintain institutions for religious and charitable purposes, To manage its affairs in matters of religion, To own and acquire movable and immovable…

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History of the Constitution of India

The Empress vs Gonesh Dooley And Gopi Dooley 1879 Cal

Assault and Battery

Rights And Duties Of Partners

Literal Rule of Interpretation of Statutes

Judicial Review Protecting The Spirit Of The Constitution

General Exceptions under IPC

Freedom of Religion

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