Author: toahostinger

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…

Death penalty abolition or retention

October 16, 2023 toahostinger No Comments

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…

Criminal Law, Indian Constitution, Indian Penal Code, Law

Divorce Under Hindu Marriage Act 1955

October 14, 2023 toahostinger No Comments

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

October 13, 2023 toahostinger No Comments

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…

Breach Of Human Rights

October 8, 2023 toahostinger No Comments

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….

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Human Rights, Indian Constitution

Alternative Dispute Resolution In Criminology

October 7, 2023 toahostinger No Comments

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…

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Alternative Dispute Resolution In Criminology

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