Category: Indian Constitution

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

Article 368 Amendment of Constitution

September 20, 2023 toahostinger No Comments

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

Indian Constitution

The Sarna Code: A Movement For A Tribal Religion

September 11, 2023 toahostinger No Comments

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

Criminal Law, Indian Constitution

Secularism

September 6, 2023 toahostinger No Comments

‘India’ is a Union of states in which people from different states belong to different castes, creeds, communities, and religions. It is, therefore, rightly quoted that India is a country of ‘unity in diversity’. Though the people of India follow their own culture and religion distinct from each other, the sense of respect towards each other religions is well maintained among the people. The concept of secularism is a philosophical phenomenon rightly embedded in the preamble of the Constitution of India. The word ‘secular’ was added to the constitution by the 42nd Amendment, 1976 which clearly states that the state recognizes no religion as the state religion. The sense of secularism is also embedded in the fundamental rights of the constitution i.e. Articles 25-28 which guarantees people to freely practice and propagate any religion of their choice. Introduction: India is a democratic nation and a land of diversity and this can be seen in terms of religion also. The very basis of this democracy lies in Secularism as it ensures all citizens are equal before the law. Secularism is a positive concept of religious tolerance that expresses the notion of equal treatment of all religions. basically, means that the state does not authorize any particular religion, it is neither religious nor irreligious but maintains neutrality in matters of faith.[i] Secularism And The Indian Constitution: The word ‘secularism’ is not defined in the constitution of India but the constitution recognizes how important religion is in the lives of the people of India and hence, provides various provisions in the constitution of India itself which incorporates the basic principles of secularism. As stated above, the 42nd Amendment,1976 of the Indian constitution added the word ‘secular’ to the preamble of the Constitution. Moreover, there are some articles in the Constitution of India that provide the fundamental principle of secularism which are as follows: Article 14 guarantees giving equality before the law and equal protection of the law to all people against discrimination by law. It ensures equal rights without discrimination. Article 15 bars discrimination on the basis of a person’s caste, race, religion, sex, or place of birth. Neither the state nor its citizens can discriminate against any other person on the basis of the said five grounds as it is necessary for the people to live peacefully. The article also provides special provisions for women and children. It also enables the state to make and implement special [1] requirements for the upliftment of the Scheduled Castes, Scheduled Tribes, and other socially and economically backward classes. Article 16 provides equality of opportunity in matters of public employment which states that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. Moreover, no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence, or any of them, be discriminated against, in respect of any employment or office under the state. Article 25 provides freedom of conscience, that is, all persons have equal rights to freedom, to profess, practice, and propagate religion. This right is available to all citizens as well as non-citizens. Article 26 provides freedom to manage religious affairs as it confers a right (subject to public order, morality, and health) on every religious denomination or any section of such religious denomination of establishing and maintain institutions for religious and charitable purposes; managing its affairs with regard to religion; owing and acquiring property (movable and immovable); administering the property in accordance with law. Article 27 provides freedom from taxes for the promotion of any particular religion. Article 28 prohibits religious instruction in any educational institutions that are maintained wholly out-of-state funds. Moreover, any person attending state recognised or state-funded educational institution is not required to take part in religious instruction or attend any workshop conducted in such an institution or premises of such an educational institution. Article 29&30 provides for the cultural and educational rights of minorities. The Supreme Court of India in the year 1994 case S.R. Bommai v. Union of India established that India was a secular country since the formation of the republic and ‘secularism’ is the basic structure of the Indian constitution.[2] Secularism In The Present-day Scenario: As mentioned above the word ‘secular’ was added to the constitution by the 42nd Amendment Act,1976 but the concept of secularism has always had great significance in India because religions played a vital role in Indian history. There are many religions in India such as Hindu, Muslim, Sikh, Christian, etc. As we have seen above our constitution has given the right to profess, propagate, and enjoy the freedom of religion to all citizens and noncitizens in order to ensure harmony among the people so that every person can live peacefully in a society. In order to maintain this harmony, respect, brotherhood, and tolerance are expected from every person so that no one can hurt the religious sentiments of one another. Despite the concepts of secularism and religious harmony provided in the Indian constitution, India has witnessed immense religious violence which can also be traced from the history of India. India accepts all religions but due to different beliefs, traditions, ideologies, and superstitiousness, religions have caused a division among the people of different faiths. For instance, in India conflict between Hindus and Muslims, historically, can be seen as there were several incidents such as the 1964 Kolkata incident, the 1983 Nellie massacre, the Gujarat riot1969&2002, the Hashim Pura massacre in 1987, the Anti-Sikh riot in 1984, the exodus of Kashmiri pandits in 1989, Babri masjid & Ayodhya case, etc. In a recent instance, the statement given by Nupur Sharma, a BJP spokesperson, about the Prophet Muhammad incensed Indian Muslims and outraged Islamic nations. Moreover, removing Mughal history from the NCERT books is another instance that shows an orthodox communal mentality. These instances are nothing but politically manipulative agenda which results in bias-motivated crime which occurs when a perpetrator targets a victim because of their membership in…

Prostitution – Should Be Legalised In India ?

August 25, 2023 toahostinger No Comments

ABSTRACT of Prostitution – Should Be Legalised In India? Prostitution has been a part of Indian society since marriages came into existence. Prostitution has taken equal steps and position with discrimination and exploitation and there are no results for it. No attention is paid to this. It has been long since we saw prostitution exist in our society but it has not gone from our society. So, for that society and law should look into the possible and favourable effects of the legalisation and regulation of prostitution on the exploitation and assault of sex workers. Introduction Earlier it was believed that prostitution is a non-selective sex work which is done for money and other valuable assets. If we go to the history of Rig Veda also, we will study prostitution and how women. Earlier, the Tawaifs were used to dance and entertain the public for money and other valuable assets but later on, it changed into sexual favours. This is known as Prostitution in the present world. In so many countries like Australia, Brazil etc. Prostitution has been declared legal but in India still, it is not legally entirely regulated. Prostitution includes so many problems like unwanted pregnancies and HIV/AIDS etc. What is Prostitution? Prostitution is the act of having sexual contact with a person who is not a wife or close friend, in exchange for cash or other assets that are paid immediately. Although prostitution can involve heterosexual, homosexual, or transgender behaviour, the majority of prostitutes have been women, and the majority of clients have been males but now there is nothing which can tell us the probability. Prostitution – Should Be Legalised In India? No, at present in India prostitution is not entirely illegal though pronounced to be unethical by the court, certain illegal acts, like being a person into prostitution, human trafficking of children and women for prostitution etc. The Indian Penal Code 1860, also deals with prostitution but it is only limited to child prostitution not to women. Here are some reasons why prostitution should be legalised: The legalisation of prostitution will protect the child under 18 from being unguarded with sexual exploitation. There are many children who are into prostitution, all over the world. Child prostitution is a harsh reality in almost all countries but in Asia and South America, the situation is difficult. Strict provisions in the industry can satisfy the prohibition of those under 18. Regular health checkups of the sex workers will ensure the emergence of sexually transmitted diseases especially, AIDS which are very common among sex workers. Contraceptives will satisfy unwanted pregnancies and cover up other health hazards. Regular health checkups and treatments advised by doctors will satisfy the clean and hygienic working conditions. A compulsory provision of safe condoms will also, be beneficial for the sex workers and the customers as well. Legalisation of the prostitution will enhance and update it. There will be a removal of agents and retreat from the system the sex workers will have more daily earnings and the criminal and exploitative factors will be reduced to negligible. To get rid of sexual violence, rape and other sexual assaults people will resort to legal and an easier alternative to satisfy their sexual urges. Punishments and Penalties for illegal activities under Prostitution. Even if it is the first time, such criminal conduct can result in harsh penalties and long-term period prison sentences. Maintaining a minimum sentence of one year of imprisonment and a maximum of three years of imprisonment, as well as a fine of at least Rs. Two hundred rupees. For procuring a girl child into prostitution, rigorous and harsh punishments for not less than seven years of imprisonment may extend to life. As per Section 2(f) of The Immoral Trafficking Act (1956) states “prostitution” as sexual exploitation or misuse of any persons for any business purpose. Section 372 and 373 of the Indian Penal Code 1860 also deal with prostitution but it is restricted to child prostitution only, not to women. Pros And Cons of Prostitution – Should Be Legalised In India ?: If Prostitution is legalized then it will be the responsibility of the state to manage brothels. It is the responsibility of the state that certain remuneration and medical and educational benefits should also be given to prostitutes. On the other side, if the legalization of prostitution is done, then it will be easy for women to earn money through prostitution. Section 4 of the act penalises any person who is living on the earnings of This section also involves the family members. Section 5 of the act penalises the procuring, inducing or taking person for the sake of Section 7 of the act penalises prostitution when it is carried out in or in the locality of public places including any densely populated area, hostel, public religious worship, educational institution, hospital, nursing home or any other place which is notified by Commissioner of Police, Magistrate and the state government. Area refers to as two hundred meters. Section 8 of the act penalises the sex worker for seducing or requesting a person for a purpose According to this section a sex worker cannot do any gestures or actions to invite someone for prostitution. This section is discriminatory as it prescribes different punishments for the same offence to the man, as the punishment is half of what is prescribed for the female. CONCLUSION: In the end, it can be concluded that for an issue like prostitution, it is very difficult to say that the legalization of prostitution bears both positive as well as negative effects. If the legalisation of prostitution is done, then there should be proper rules and regulations for it. As legalisation of prostitution will help to protect the sex workers and their children from exploitation Not just this it will also satisfy the protection of the health of the sex workers and the society at huge. Therefore, a set of rules and regulations should be established to regulate Prostitution. Written By…

Indian Constitution, Indian Penal Code

Fundamental Rights And Its Significance To Establish Democracy

August 24, 2023 toahostinger No Comments

Introduction The constitution of India, 1950 as of 2021, there are 25 parts with 448 articles and 12 schedules. This chapter of the constitution of India is very well described as the Magna Carta of India. Magna Carta term is derived from the Latin language meaning “Great Charter” and it holds great power because it was the first document to put in writing that no one was above the law not even the King. The inclusion of this chapter in the constitution is by the trend of modern thought, the idea is to preserve that which is an indispensable condition of a free society. The aim of having fundamental rights declares that certain elementary rights, such as the right to life, liberty, freedom of speech, freedom of faith, and so on, should be regarded as unalterable under all conditions and that the shifting majority in Legislation of the country should not have a free hand in interfering with these fundamental rights. History As early as 1215 the English people exacted an assurance from King John for respect for the ancient liberties. The Magna Carta is evidence of their which is written document. Thereafter from time to time, the King had acceded to many rights to his subjects. In France, the Declaration of Rights of Man and the Citizen (1789) declared the natural, inalienable, and sacred rights of man. Following the spirit of the Magna Carta of the British and the declaration of the rights of the man and the citizen of France, the Americans incorporated the Bill of Rights into their constitution. The Americans were the first to give the Bill of Rights a constitutional status. Thus, when the constitution of India was being framed the background for the incorporation of the Bill of Rights was already present. The framers took inspiration from this and incorporated a full chapter in the Constitution dealing with fundamental rights. Schedule of Fundamental Rights The fundamental rights are incorporated in the Indian constitution and divided into the following six groups: – Right to Equality (Art 14-18) Right to Freedom (Art 19-22) Right against Exploitation (Art 23-24) Right to Freedom of Religion (Art 25-28) Cultural and Educational Rights (Art 29-30) Right to Constitutional Remedies (Art 32-35) The 44th Amendment has abolished the Right to property as a fundamental right as provided in Art 19(1)(f) and Art 31 of the Constitution, and hence Art 19(1)(f) and 31 has been omitted. Salient Features of Fundamental Rights Comprehensive and Detailed: The rights in the Part III of the constitution are very elaborate. Each Article has been described with its scope and limitations. Lack of social and Economic rights: The Constitution guarantees only civil rights and freedoms. Rights like the Right to work, the right to health, and the Right to Social Security have not been included in the Fundamental rights. Rights are qualified: The fundamental rights of people are not absolute except the right against untouchability. They are qualified with limitation and reasonable restriction in the collective interest of society. While describing the scope of each right, the Constitution also describes its limitations. These have been laid down to protect the public health, public order, morality, and security of India. Some exceptions are also provided to fundamental rights through their non-applicability to members of security and law and order-related forces, during martial law and, certain laws necessary for socio-economic reforms. Enforceability of Rights: Fundamental rights have been made Justiciable. Justiciable rights mean if any of these rights are violated by the government or anyone else, the individual has the right to approach the Supreme Court or high courts for protection. There are elaborate instruments to protect these rights, such as the right to Constitutional remedy, Public Interest Litigation, and Human Rights commissions. Constitutional Superiority of Fundamental Rights: The Fundamental Rights of the citizens are superior to ordinary laws and the Directive Principles of the State when the President withdraws it. Importance of Fundamental Rights Fundamental Rights are deemed essential to protect the rights and liberties of the people against the Government. They are limitations upon all the management of the Government, legislative as well as executive and they are essential for the preservation of public and private rights, notwithstanding the representative character of political instruments. Speaking about the Importance of Fundamental Rights in the historic judgment of Manika Gandhi Union of India, Bhagwati, J., observed: “The Fundamental rights represent to protect the dignity of the individual and create conditions in which every human being can fully develop his personality. They weave a ‘pattern of guarantee on the basic structure of human rights, and impose a negative obligation on the State not to encroach on individual liberty in its various dimensions” These rights are regarded as fundamental because they are essential for the attainment of the individual or his full intellectual, moral, and spiritual status. The advocates of inclusion of these rights in the Indian Constitution vest them with a sanctity that legislators dare not to violate so easily. The Doctrine of Severability and Eclipse The doctrine of Severability: It means that if an offending provision can be separated from that which is constitutional then only that part which is offending is to be declared as void and not entire statute. In R.M.D.C v. Union of India (AIR 1957 SC 628), the court observed that the intention of the legislature. The doctrine of Eclipse: It is based on the principle that a law that violates fundamental rights is not nullity or void ab initio but becomes only enforceable i.e., remains in a moribund condition. Such law exists for all past transactions, for rights and liabilities incurred before the constitution came into force, and for the determination of rights of persons who have not been given fundamental rights by the constitution e.g., non-citizens (Bhikaji the state of M.P AIR 1955 Sc 781) The doctrine of eclipse applies to a post-constitutional law Article 13(2) deals with post–constitution or future laws [while clause (1) deals with pre–constitution or existing law]. It…

Indian Constitution

Freedom Of Speech

August 21, 2023 toahostinger No Comments

Freedom of speech consists of the freedom to express one’s views in the form of expressed and implied manner. It is an important concept that is adopted by all democratic countries. Sedition and defamation are 2 concepts that limit the concept of freedom of speech. Sedition is a concept to prevent speech against the government that incites violence against it and defamation, on the other hand, refers to false statements that harm an individual’s reputation. But nowadays these 2 concepts are used adversely to limit the freedom of speech. The blog concludes with an opinion on how these 2 concepts are used in an adverse way to deter freedom of speech. Introduction It is well established historical fact that on numerous occasions Government is accused of using sedition and defamation law adversely to protect its interest and deter journalists, activists, and opposition political leaders. Using these provisions of the IPC and the constitution infringes the fundamental right enshrined under part III of the constitution of India and undermines the functioning of democracy in India. Whereas defamation is defined under section 499 of IPC as Whoever, by words either spoken or intended to be read or by signs or by visible representations, makes or publishes. Constitutionality Of Sedition As Limit On Freedom Of Speech Sedition was a concept introduced in 1870 during the British Indian colonial government under section 124-A, with a view to suppressing dissent and controlling India’s Independence moment, which defined sedition as any act or attempt to bring hatred, contempt, or excite dissatisfaction towards government established by law in India. If we literally interpret this section, It says that whosoever by expressed or implied means brings or attempts to bring hatred, contempt, or dissatisfaction towards the government established by law in India, this section puts a limitation on freedom of speech which results in infringement of fundamental right art.19 enshrined under part III of the Indian constitution. Cases There are many cases where the government used it in an adverse manner in its own interest against journalists and activists. Kishorechandr Wagmare, a journalist was charged with sedition for making cartoonist posts on social media sites. [1] A YouTuber was also charged with sedition for posting a video on his YouTube channel stating that PM had used facilities and terror incidents to obtain votes, In this case Supreme Court had laid out that every citizen has the right to criticize and comment on the actions of government and its official as long as he does not incite violence against the public. As a journalist addressing subjects of major importance so that enough attention might be given, can not be accused of propagating or misleading information. [2] In this case, the Supreme Court observed that expressing a point of view that differs from a decision made by the central government does not amount to sedition.[3] If we see sedition and the use of sedition by the government through the lens of Article 19 of the constitution of India, It is witnessed that the government in most cases uses this section against activists and journalists who are raising subjects in the interest of society and but such subjects are against the government of India. This clearly infringes on the principles of democratic values. Freedom of speech Freedom of speech is a very vast concept and there must be some limits that prevent the adverse use of this concept. Sedition puts limits upon it but if we interpret this section, the words ‘disaffection towards the government’ imply whosoever expresses his views which are against the government. Supreme Court in this regard said that a provision after its literal interpretation shall be interpreted by considering the antecedent history of the legislation. So this section was inserted by the British government to suppress the political movements and Indian freedom struggle and was framed with a view of colonial principles. In today’s era and in a country running on democratic principles this section is ultra vires to those principles.[4] There should be an amendment of some terms in section 124A, the section shall include the word ‘ insurrection’ instead of ‘disaffection’ which allows the citizens to freely express their disaffection towards governmental policies and conduct and limits such disaffection from gaining the tendency of violence. Thus this section in literal view is ultra vires with regard to the constitution of India. CONCLUSION In this blog, I analyzed the constitutionality of sedition and defamation laws in India and argued that they are often used by the government in an adverse manner to suppress freedom of speech and expression. The statement suggests that there should be amendments to these laws to align them with modern democratic values. The arguments presented in the statement are logical and coherent and are supported by examples and case laws. [1] Kishore Chandra Wangkhemcha v. Union of India (2021) [2] Vinod Dua v. Union of India (2021) [3] Rajat Sharma v. Union of India (2021) [4] Kedar Nath Singh V. State of Bihar, 1962 AIR 955, 1962 SCR Supl. (2) 769 Written By – Rahul Aaryan

Indian Constitution

Natural Justice in relation with Indian Constitution

August 15, 2023 toahostinger No Comments

Natural justice is a ubiquitous issue of secular law, a non secular touch that enlivens regulation, management, and justice and makes fairness a creed. Ideas are not defined or stipulated in any criminal code. Natural justice has meant a lot to many authors, lawyers, and felony structures. It is available in many colors and sun shades and comes in lots of shapes and bureaucracy. Introduction In India, the constitutional precept of natural justice is emphasize Article 311 embodies the proper to a truthful listening to as a essential principle of herbal justice. In step with Article 19 paragraphs 2 to 6, appropriate regulations of business and commercial enterprise regulation can be imposed, consisting of procedural regulations. determining the validity of reasonable barriers, courts have referred to the precept of natural justice. Our duty of fair conduct is a part of the due method set out in Articles 14 and 21. Natural Justice in relation with Indian Constitution Human dignity is completely linked to the concept of human rights. In its declaration, the World Conference on Human Rights held in Vienna in 1993 stated: The L.I.C v Center for Consumer Education and Research argued Acts of public authorities or public authorities or obligations must be publicly justified and guided in the public interest. Due process is enshrined in Article 21 of the Constitution, so when a person is deprived of his life and personal liberty, all fairness embodied in the principle of natural justice is seen in Article 21. In the Hindustan Petroleum Corporation v. H.L. Trehan case, the SC held that, while the agency had the legal authority to act without a hearing, acting without a hearing was arbitrary, and that Article 14 of the Constitution states: It made it clear that It would be in violation. In Yadav v. J.M.A. Industries Ltd in D.K., the SC held He stated that even if a statutory standing order empowered management to terminate the service of an employee who has passed the vacation period without hearing the termination of that service, it would violate Article 21 of the Constitution. Provisions The procedure for taking away a person’s livelihood cannot be described as fair, impartial, or reasonable under Article 21 of the Constitution. In Asoka Smokeless Coal India (P) Ltd v Union of India, The court ruled that the principle of natural justice applies when certain rights, such as legitimate expectations, are likely to be affected by administrative actions. According to the decision [1] Conclusion In a welfare state like India, the jobs and duties of public administrations have grown hastily, and the speedy expansion of nation duties and the civic wishes of the human beings have made delegation of administrative discretion an hour’s necessity. As administrative discretion expands, regulatory measures have to have sufficient powers to prevent abuse of discretion. On this context, so one can keep the primacy of the rule of law in India, the constitutional rule of regulation like India, i.E. Truthful play, which is a part of natural law, wishes to be determined and brought lower back by the judiciary. On this context, the writer argues that “herbal law rules can best be implemented in regions no longer included via existing law,” and that such antique judgments of the excellent court and other excessive courts need to be reconsidered. Yes, and the correct view will be the concepts of Natural law. When the pastimes of justice require it, they have to act within the presence of, and even towards, present regulation. [2] In India, all concept are based on Articles 14 and 21 of the constitution. With the advent of the idea of considerable and procedural processes in Article 21, all the impartiality inherent inside the standards of natural law can be discovered in Article 21. Violations of Natural regulation concepts cause arbitrariness. Violation of herbal rights is consequently a contravention of the equality clause of Article 14. • • • • • • • • • • [1] NATURAL JUSTICE AND INDIAN CONSTITUTION. (2017, June 22). IILS Blog. https://www.iilsindia.com/blogs/natural-justice-indian-constitution/ [2] https://lawreports.wordpress.com/2009/06/12/arbitrary-actions-of-the-state-are-in-conflict-with-article-14-right-to-equality-of-the-constitution-of-india/ Written by Muskan Vyas

Indian Constitution

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Category: Indian Constitution

Divorce Under Hindu Marriage Act 1955

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Article 368 Amendment of Constitution

The Sarna Code: A Movement For A Tribal Religion

Secularism

Fundamental Rights And Its Significance To Establish Democracy

Freedom Of Speech

Natural Justice in relation with Indian Constitution

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