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Students in their 3rd,4th and 5th year of the law program at any law school in India
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In pursuance of this quest to grow, University School of Law & Legal Studies is conducting the ‘1st All India Online Vimarsh Competition’, an online elocution competition to further the prospect of public speaking among students.
New World order in wake of COVID – 19, Opportunities and encumbrances/कोविड – १९ के उपरांत नयी विश्व-व्यवस्था, अवसर एवं रुकावटें
60% weightage shall be given by the judges of the event.
The judges shall mark the videos on the basis of
1.Content(10 marks)
3.Conveyance (10 marks)
4.Congnitiveness (10 marks)
Weightage shall be given to the number of likes received on the videos to be uploaded on the Youtube Channel. Depending on the average of “Likes” received on all the videos, the weightage of each like shall be calculated.
Top 2 entries from each category i.e. English and Hindi will be awarded Special Certificate of merit [E-Certificates].
The Overall Winner would be adjudged as the ‘Best Speaker’ [E-certificate] and any other reward as and when possible as per the routine course of the University.
E-certificate to all participants
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Yashdeep Lakra: 8826552594
Mayank Pratham: 76786 72016
The case analysis is written by Nikhilesh Koundinya, a student of Symbiosis Law School, Pune.
The case that the article refers to are Lt. Cdr. Annie Nagaraj v Union of India. This was a case instituted in the Delhi high court in the form of six writ petitions under article 226 of the constitution. The case was initiated by 17 women and because the first petitioner under the present case was Lt. Annie hence the case was named as Annie Nagaraj v Union of India. The relief the petitioners sought was for permanent commission in the Indian Navy. The move was instated after the judgement by the Delhi High court in Babita Punya v Union of India where the judge had granted a permanent commission to the women in the Indian army and Indian air force. The air force did not challenge the petition whereas the Indian army went in appeal. The 17 women who had instituted the suit included 6 logistics officers, 9 education officers and 2 Air Traffic Control (ATC) officers. Their grievance was that despite spending 14 years of their career in the Indian navy they weren’t eligible for permanent commission and were discharged from service.
The Ministry of Defense (MOD) issued a policy letter dated 2008 where they directed permanent commissions to women in all three armed forces in particular sections/departments. This law was to be applied prospectively which meant that the women who had joined after the letter were to avail this rule. The court in the case of Lt. Annie directed that the women who were serving in the armed forces under Short-Service Commission (SSC) on 26th September 2008 will not be discharged from duty until the court order arrives on the present issue of permanent commission.
The second petition with regards to the permanent commission was instituted by Priya Khurana with the Armed forces Tribunal (AFT). She contended that the benefit of the permanent commission was prospectively applied and this was a clear violation of the right to equality. The AFT also passed an order similar to the Delhi high court stating that the women officers under SSC category will continue under normal circumstances until the court order arrives.
The Delhi high court ruled in the favor of Lt. Annie and granted a permanent commission to the lady officers. This decision has hence been challenged under special leave petition (SLP) to the Supreme court dated 2020.
For a better assessment of the circumstances judged by the Supreme court we must make an observation of the documents with relation to the appointment of women in the armed forces:
When the navy bill was being drafted in 1957 there were four members in the drafting committee who spoke about the importance of women in the armed forces. The members also put forward a contention explaining the importance of democratic rights over achieving fighting forces. But in the bill of 1957, there was no provision for including women as part of defence forces. In fact, under section 2 of the bill which speaks about the executive branch of the navy, it has been held that the man being recruited must be single/ unmarried. This has also been reiterated under rule 122(2), 124(2) and 126(2) for engineering and electrical departments of the navy. This embodies the thought process of the people back then and what they thought about the role of women in a man’s life.
On October 9, 1991 the union government issued a notification in which women were eligible for short service commission under 3 categories and the period for serving in these categories was 5 years. The areas which were allowed included law, logistics and education.
Pursuant to this notification on July 1, 1992 short service commission was granted for 7 years which was to be increased by 2 years at a time. This meant that when the officer completed 5 years her tenure was increased by another 2 years which totalled to 7 years. The government had also sanctioned the intake of 35 officers into the Indian navy for a period of 5 years under the garb of short service commission. The notification also stated that no permanent commission would be granted to women under the ATC cadre.
On 15th May 1998 the southern naval command stated that the SSC could be extended to 10 years which included 2 years extension at a time. This was followed by a notification by the government dated 6th November 1998 which stated that a short service commission will be granted under all branches of the Indian navy which included executive, engineering, electrical and education.
The next notification came in on 25th February 1999 where the government held that grant of permanent commissions will be in accordance with regulation 203 of chapter IX of the 1963 regulations. Regulation 203 of the said provision states:
Subject to the availability of vacancies in the stabilized cadre of the Navy, Permanent Commission may be granted from time to time to Short Service Commission Officers of the rank of Sub-Lieutenant and above who are considered suitable and are recommended by the Chief of the Naval Staff.
The notification also recognized the fact that women can serve onboard ships during training as well as deployment. This notification was followed by an important one on 27th February 2002 where the government along with the president increased the short service commission to 14 years.
Then comes an advertisement which was the main contention in the Priya Khurana case. This advertisement was published by the Indian Navy in 2002, July to induct SSC men and women officers for the period of 10 years. The advertisement also stated that if the officers performed, they will be considered for permanent commission. This was followed by a letter which was sent by the government to the three chiefs of the armed forces (navy, army and air force) on 26th September 2008. The essence of the letter can be put together in two points:
There was no mention of the notification dated 25th February 1999 in the present notification. On 3rd December 2008, the court held that permanent commission was only envisaged to be granted to women who had been inducted after 2009 under education, law and naval architecture. The court held that for the grant of permanent commission to women aboard will be constituted under the chairmanship of the Chief of Personnel (COP). The permanent commission will depend upon the vacancies available and the Annual Confidential Report (ACR) of the officers which indicates their performance in that particular year. The Delhi high court in the case of Babita Punya v UOI made the following submissions in its judgement:
The judgement of the Delhi high court held that SSC officers of the navy who had opted for but were not granted permanent commission should be granted permanent commission within a period of six weeks though they had attained the age of retirement during the pendency of the petitions. The AFT differed from the decision of the high court and stated that since it does not have enough materials to decide the grant of permanent commission this decision will be left to the relevant authorities. But the AFT held that until a decision came about the women were allowed to continue as SSC officers on existing terms and conditions as applicable.
In the interim pending this order there was a notification passed on 20th November 2015 which made 2 points:
Respondents 2-6 appealed against this order by stating that they were released from service in July and August of 2008. The case put forward by the officers in the Annie case is that they were in service when the policy letter dated 25th February was introduced which spoke about the permanent commission. They also stated that they wrote several letters to the authorities which was backed by letters written by their commanding officers showing their dedication, hard work and merit displayed in their job. Their grievance is that their requests weren’t heard and that the navy kept quiet about the policy letter for a long time before it attracted limelight.
Thus, the officers claimed that they were entitled to permanent commission due to a policy letter dated 25th February 1999. They invoked the principle of actus curiae neminem gravabet by stating that the court while granting relief to one cannot be prejudiced against the other and hence even though they were out of service for many years they asked for being re-instated and undergo fresh 6 months training.
The court took grievance of the issue and stated that SSC women officers have been aggrieved in the present case due to the naval authorities:
Once the policy decision of the Union Government was communicated on 25 February 1999, the authorities were bound to consider the claims of the SSC officers for the grant of PC in terms of Regulation 203. The naval authorities and the Union Government failed to do so, depriving them of the entitlement to be considered for the grant of PC. By the failure of the authorities to consider the SSC officers for PCs in terms of the policy communication of 25 February 1999, SSC officers lost out on the opportunity to be granted PCs and all the responsibilities and benefits attached to the grant of PC, including promotions and pensionable service.
The situation which has come to pass is due to the failure of the authorities to implement statutory notifications issued under Section 9(2) the policy statement of 25 February 1999 by which they were bound and as the decisions of the Delhi High Court and the AFT. These SSC officers cannot be left in the lurch and the injustice meted to them by lost years of service and the deprivation of retrial entitlements must be rectified. The injustice is a direct consequence of the authorities having breached their duties under law, as explained above. To deny substantive relief to the SSC officers would result in a situation where a breach of duty on the part of the authorities to comply with binding legal norms would go unattended. This would result in a serious miscarriage of justice to the SSC officers who have served the nation and is unsustainable in law.
The court also made a reference to respondents 2-6 in the present case who were discharged from service before the notification in 2008. Thus, due to the failure of the naval authorities to implement the regulations these women lost the opportunity to continue in service. Thus, the court directed a lump sum payment of 25 lakhs to these women who lost out service and to make up for the injustice meted out to them.
By and as a result of the policy decision of the Union Government in the Ministry of Defence dated 25 February 1999, the terms and conditions of service of SSC officers, including women in regard to the grant of PCs are governed by Regulation 203, Chapter IX, Part III of the 1963 Regulations.
The stipulation in the policy letter dated 26 September 2008 making it prospective and restricting its application to specified cadres/branches of the Indian Navy shall not be enforced.
The provisions of the implementation guidelines dated 3 December 2008, to the extent that they are made prospective and restricted to specified cadres are quashed and set aside.
All SSC officers in the Education, Law and Logistics cadres who are presently in service shall be considered for the grant of PCs. The right to be considered for the grant of PCs arises from the policy letter dated 25 February 1999 read with Regulation 203 of Chapter IX Part III of the 1963 Regulations. SSC women officers in the batch of cases before the High Court and the AFT, who are presently in service shall be considered for the grant of PCs on the basis of the vacancy position as on the date of judgments of the Delhi High Court and the AFT or as it presently stands, whichever is higher.
The period of service after which women SSC officers shall be entitled to submit applications for the grant of PCs shall be the same as their male counterparts.
The applications of the serving officers for the grant of PCs shall be considered on the basis of the norms contained in Regulation 203 namely:
Women SSC officers of the ATC cadre in Annie Nagaraja’s case are not entitled to consideration for the grant of PCs since neither men nor women SSC officers are considered for the grant of PCs and there is no direct induction of men officers to PCs. In exercise of the power conferred by Article 142 of the Constitution, we direct that as a one-time measure, SSC officers in the ATC cadre in Annie Nagaraja’s case shall be entitled to pensionary benefits. SSC officers in the ATC cadre in Priya Khurana’s case, being inducted in pursuance of the specific representation contained in the advertisements pursuant to which they were inducted, shall be considered for the grant of PCs in accordance with directions.
All SSC women officers who were denied consideration for the grant of PCs on the ground that they were inducted prior to the issuance of the letter dated 26 September 2008 and who are not presently in service shall be deemed, as a one-time measure, to have completed substantive pensionable service. Their pensionary benefits shall be computed and released on this basis. No arrears of salary shall be payable for the period after release from service;
As a one-time measure, all SSC women officers who were before the High Court and the AFT who are not granted PCs shall be deemed to have completed substantive qualifying service for the grant of pension and shall be entitled to all consequential benefits.
Respondents two to six in the Civil Appeals arising out of Special Leave Petition (C) Nos 30791-96 of 2015, namely Commander R Prasanna, Commander Puja Chhabra, Commander Saroj Kumar, Commander Sumita Balooni and Commander E Prasanna shall be entitled, in addition to the grant of pensionary benefits, as a one-time measure, to compensation quantified at ₹ 25 lakhs each.
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This article has been submitted by Aaditya Kapoor, a law-aspiring student of Vivekananda Institute of Professional Studies. Through his research, Aaditya strived to shed light upon the admissibility and applicability in courts, of evidence obtained from an accomplice to the crime.
While investigating a crime after its commission, there are a number of stages involved in it. In order to trace mens rea and actus reus In any criminal case, the primary objective of an investigation being conducted is to harness evidential data related to the crime. The Indian Evidence Act has not only prescribed ways and procedures to sanction crime-related evidence, but it has also laid down various types of data that can qualify as an admissible record in court.
An accomplice means a person who has been involved in committing a crime. If an offence is committed in concert by more than one person each involved in his commission is an accomplice. Conspirators secretly lay their plot; they ruthlessly execute it, and leave no evidence behind. So the police often have to pick one of them for the purpose of converting in his testimony.
He is forgiven on condition that he bears evidence of the crime against his former partners. He is then referred to as an accomplice, a suspect turned over, or an approver. He acts as a witness for prosecuting the convicted person with whom he participated in the commission of the crime together. A problem can be encountered while deciding whether or not evidence by an accomplice can act as a credible source of record or not.
Two sections in the Act touch on this subject. Section-133 declares categorically that an accomplice is a qualified witness and on the basis of such proof the Court may convict, and the conviction will not be unlawful merely because it results from the uncorroborated testimony of an accomplice. The other problem is highlighted in paragraph (b) to section 114, which states that the court may opine that the accomplice does not meet prerequisites for obtaining credit, given his lack of aid in the material process.
S.133 – A compliance shall be a credible witness against a convicted person, and a conviction is not unconstitutional merely because it results from an accomplice’s uncorroborated evidence.
S.114 – Illustration (B) — Unless corroborated in material details, the court may conclude that an accomplice is uncredited. The apparent contradiction between those two statements should be resolved first. The uncorroborated testimony of an accomplice can be taken in by court according to Section – 133, but since such a witness, being a criminal himself, may not always be trustworthy, the court is guided by the illustration attached to Section 114 that the court should presume, if necessary, that he is a criminal considered unreliable; with the only exception that statements made by this person stand as verified.
An individual must engage in the commission of the same crime in order to become an accomplice. This engagement can be achieved in several different ways. The modes of participating in a crime are dealt with under the heading:-
(1) First and second – degree Principals — The first-degree Principal is the one who directly commits the crime. A second – grade principal is a person who is present and lays assistance to the commitment of a crime.
(2) Evidence – finding accessories — An accessory before the evidence is one that counsels, incites, connives, promotes or procures the execution of the crime. Of these persons, those who advise, threaten, promote or procure the execution of the crime are certainly accomplices.
(3) Accessories after the fact: Any person is an accessory after a crime, who knows that another person has committed a crime, receives, comforts or supports him in order to avoid punishment; or rescues him from arrest or in the custody of the crime, deliberately and knowingly helps him to avoid or object to his arrest.
Section 118 of the Indian Evidence Act prescribes the prerequisites for establishing witness competency. Competency is a precedent condition for examining a person as a witness and the sole test of competency established is that the witness should not be prevented from understanding the questions posed to him or from giving rational answers expected of him by his age, mental and physical state of illness.
Once it is determined that the person who has actually appeared as a witness is an accomplice, the question then arises as to what value is to be attached to his evidence, namely whether it should be acted upon in itself or whether his statements should be considered for some independent verification. As a precautionary rule, which has now become practically a rule or statute, it has been known from the earliest times that an accomplice ‘s evidence will stand the test of scrutiny at least in the key points. This is called corroboration. The reasons why corroboration was deemed necessary are because:-
(1) He himself was a convict and his evidence would therefore not have the same respect as that of a law-abiding person.
(2) He was unfaithful to his companions, and could be unfaithful to the court because he had reason to shift the blame from himself to his former companions;
(3) if he is an approver, he has been favoured by the State and, thus, is likely to be in support of the State.
The meaning and type and degree of corroboration was clarified by the Criminal Appeals court in R v. Baskerville: The case concerned a sexual attack on two young boys with their consent at the accused’s home. Thus the boys were both accomplices. The only way to corroborate one’s proof was by citing the other’s argument.
Eight people were tried for murder in Bhuboni Sahu v. The Emp. four of them have been acquitted. Of the others, one has appealed to the Privy Council. The case against the appellant consisted of:
There is no doubt that admission into law is the uncorroborated evidence of an accomplice. But it has long been a common-law practice for the judge to alert the jury of the danger of conviction and to inform them not to convict on such proof in the prisoner of the uncorroborated testimony of an accomplice, and in the judge’s discretion.
In Narayan Chetanram Chaudhary v. Maharashtra State, accused of robbery and murder committed crime. All deaths were caused by A1, the child was killed by A2 except for one boy. Raju PW 2 was personally involved in the crime and supported the tribunal.
Perhaps the murders were done to wash away all signs of theft and done by the accused. Accused have been arrested from different locations. Various witnesses had identified them in the recognition parades. Raju expressed his intention to make a confessional statement after the undertaking but before the start of the trial. The plea was admitted by the trial court. The accused Raju was granted pardon on the condition that, within his knowledge of the crime, he would make a full and accurate declaration of all the circumstances. The Connection was also approved by the High Court.
By reading harmoniously Section 114(b) and Section 133, the courts in this country have jointly laid down the guiding principle for accomplice proof which clearly establishes the law without any ambiguity. The theory established by the courts is that while a prosecution based on an accomplice’s uncorroborated evidence is not wrongful or illegal. However, the law of prudence notes that acting on an accomplice’s testimony is dangerous unless it is corroborated with respect to factual factors that include the accused.
Accomplice witness can be a competent witness if certain conditions are met. One prerequisite required to be Accomplice Witness is that he must be involved in the crime. And, unless it is subject to corroboration, the Accomplice Proof can be taken as strong evidence.
This article is written by Samridhi Sachdeva pursuing BBA LLB from Gitarattan International Business School, GGSIPU. This article talks about the prevention and control of water pollution and describes the functions of central and state boards of pollution control.
The Water (Prevention and Control of Pollution) Act, 1974 was adopted to prevent and control the water pollution in India. It is a brief set of rules and duties for both the National and the State Board of the nation. It suggests some provisions regarding the control measures to prevent and control the water pollution caused by the industries and village areas. The main motive of this act is to restore the aquatic resources of the country. It gives power to the Central and the State Board to prevent the contamination of water by implementing the provisions mentioned under this Act by keeping checks on the State water bodies.
In our day-to-day lives, many such human activities are polluting the water bodies of the nation. Waste waters that enter the sea, rivers or lakes, contain a huge amount of pollutants, which makes the water bodies pollutant causing serious environmental hazards. Excessive organic matter, infecting organisms from industrial and hospital wastes, pollute water to a great extent.
This act aims to control the point source of water pollution. The main objective of this act is to maintain the water bodies in a healthy manner and to prevent any other serious hazards.
However, preventing water pollution is way better than controlling the problems it has created.
This Act applies to the whole of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura, West Bengal and Union Territories.
It was enacted in pursuance with the clause (1) of Article 252 of the Indian Constitution. According to this article, the Parliament does not have any power to make laws for the State with respect to matters mentioned above, except in articles 249 and 250 of the Indian Constitution.
The Central Board consist of the following key members:
The State Pollution Control Board consist of the following members:
In some cases, two or more States or Union Territories join together with an integrated mission to form Joint Board, termed as Joint Pollution Control Board. An official petition is required to submit to the Central Government, by Joint Board, to begin with any action.
So, basically the act focuses on the prevention and control of the water pollution by forming the Central and State boards. And also, by giving them the provisions regarding the same. It is their duty to follow such provision and look upon the water bodies of the States and make sure that they are not contaminated. This act gives provision regarding the meeting of the Boards, to be held every six months to inspect the water bodies and list some new provisions and measures regarding the same.
It is also the duty of every individual to protect the environment, to make Earth a better place to live. So, no individual should try to pollute any water body. But, if any individual sees anybody polluting the water body by any means, then the concerned State Board should be reported.
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This article is written by Deepika, pursuing BA-LLB from IIMT & School of Law, GGSIPU, Delhi. In this article, she has discussed the concept of sovereign immunity along with its evolution through Pre-Constitutional to post-constitutional era.
As we know the state is a legal entity and not a living personality, it can’t work by itself, it has to act through human agency, i. e. through its servants. When we discuss the tortious liability of the state, it is really the liability of the state for the tortious acts of its servants that have to be considered. Vicarious liability refers to a situation where one person can be held liable for the wrongs committed by its servants or employees. Usually, the master may be held liable for the torts committed by his servants in the course of employment. But what about the liability of government in case of a tort committed by its servants? Here the doctrine of sovereign immunity is applied.
Sovereign immunity is a legal doctrine by which the sovereign or state is given immunity from civil suit, criminal prosecution and legal wrong committed by it. This doctrine gives protection to the state. It is justification for wrongs committed by the state or its servants. This principle is derived from the legal maxim “rex non potest peccare,” meaning “the king can do no wrong.” The doctrine of sovereign immunity is based on the Common Law principle that the King can’t commit any wrong and that he cannot be guilty of personal negligence or misconduct, and as such cannot be responsible for the negligence or misconduct of his servants.
At common law, initially, the position was that the Crown could not be sued in tort either for wrong authorized by it or committed by its servants, in the course of their employment. This position has been entirety changed after passing of the Crown Proceedings Act, 1947. Now the crown is liable for the tort committed by its servant, just like a private individual.
Unlike the Crown proceedings Act, 1947(England), we don’t have any statutory provision mentioning the liability of the state in India. The Law Commission of India in its very first report recommended the abolition of this outdated doctrine. But for various reasons, the draft bill for the abolition of this doctrine was never passed, and thus it was left to the courts to decide on the compatibility of this doctrine in accordance with the Constitution of India. The position of state liability as stated Article 300 of the constitution of India is as under :
300. (1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.
(2) If at the commencement of this Constitution-
So, Article 300 only provides that that Union of India and the State are juristic persons for the purpose of suit or Proceedings but the circumstances under which they can sue or be sued have not been mentioned.
To know the present position as regards the liability of the State for tortious acts, we have to go back to pre-constitution days
Peninsular and oriental steam Navigation Company v. Secretary of State for India– This was the first case in which the Sovereign immunity of the state was debated. There was a heavy piece of iron made which was being carried by some workers on a Government’s steamer, which in its way hit plaintiff’s horse-driven carriage as a result plaintiff’s horse was injured. The plaintiff filed a suit against the government for damages due to negligence on the part of the servants employed by the government.
Held- If the act was done in exercise of sovereign functions, the East India Company would not have been liable, but if the function was a non-sovereign one, the company would have been liable. Maintenance of the dockyard was considered to be a non-sovereign function and, as such the government was made liable.
So, there was a distinction in liability, depending upon the sovereign and non-sovereign functions of the East India company.
In Nobin Chander Dey v. Secretary Of State For India, the date was exempted from liability when the function was considered to be a sovereign one. There the plaintiff filed a suit contending that the Government had made a contract with him for the issue of license for the sale of ganja, and had made a breach of the same. On the evidence, it was held that there was no contract. Relying on P. & O. S. N. Co ‘ s case, it was further held that assuming that there was a contract, the action couldn’t lie as the act was done in exercise of sovereign function.
In The Sec. of State For India In Council v. Hari Bhanji, a suit was filed to recover the excess duty collected by the state on a consignment of salt. The Madras High court rejected the plea of immunity and held that no immunity attaches to actions done other the colour of municipal laws and the immunity of East India company extended only to acts of state.
So, in the P. & O. S. N. Co’ s for considering sovereign immunity the court took the view of sovereign and non-sovereign function while in Hari Bhanji case court held immunity is available to state in only ‘Act of State’.
So from the above discussion, the principle which emerges is that if the function involved is a ‘sovereign function’, the state can’t be held liable in tort, but if it is a’ non-sovereign function’, the state will be liable. But the difficulty lies in devising a certain criterion or other parameters to decide to which category the act belongs. In fact, in a welfare state, it is very difficult to draw a distinction between the two.
The Supreme Court gave one of the earliest decisions in the post-constitutional era in the case of State of Rajasthan v. Vidhyawati on the issue of the liability of the state for the acts of government servants. In this case, the driver of a jeep for the official purpose of Collector drove negligently and rashly while taking the jeep from to the collector’s bungalow for collector’s use injured a plaintiff’s husband, who suffered injuries. The Supreme Court held that like any private employer, the government of Rajasthan will be liable for the negligent act of its servant. According to Dave J. State should not be treated differently from other ordinary employers when it is engaging itself in activities in which any private person can engage himself.
In spite of the decision of the Supreme court in Vidyawati’s case, the position is not very certain and satisfactory. In the case of Kasturi Lal v. State of U. P, the police constable misappropriated the property kept in government malkhana and fled to Pakistan, the Supreme court held that state was not liable as police authorities were exercising sovereign functions. In this case, the court has again stated that if the act of the government servant was one which could be considered to be in the delegation of sovereign powers, the state would be exempt from liability.
In peoples Union For Democratic Rights v. State of Bihar, around 600 to 700 peasants and landless persons had collected for a peaceful meeting without any previous warning by the police or provocation on the part of those collected, the SP surrounded the gathering with the help of police force and opened fire, as a result of which at least 21 persons including children died any many more were injured. The peoples Union Of Democratic Rights filed an application before the Supreme court under Article 32 of the constitution, claiming compensation for the victims of the firing. It was held by the Supreme court that the State should pay compensation of rupees 20000 for every case of death and rupees 5000 for every injured person.
In Sebastian M. Hongray v. Union Of India, Bhim Singh v. State of J & K, Rudal Sah v. State Of Bihar and Saheli v. Commissioner Of Police, Delhi, the Supreme court recognized the liability of State to pay compensation, when the right to life and personal liberty as guaranteed under Article 21 of the constitution had been violated by the officials of the state.
In Sebastian M. Hongray, the army authorities took two persons in custody at Manipur. The army authorities failed to produce those two persons in before the court on the writ of habeas corpus. They were supposed to have met unnatural death while in army custody. The wives of two missing persons were awarded exemplary costs of RS. 1 lakh each.
In Bhim Singh, the petitioner, who was an M. L. A was wrongfully detained by police and thus prevented from attending the assembly session. The Supreme court ordered the payment of RS. 50000 by way of compensation to the petitioner.
In the State of A. P. V. Challa Ramkrishna Reddy, the High court held that the state was liable to pay damages of Rs. 40000 to the claimant for injury caused to him by police fire where negligence on the part of the police was established.
In Saheli v. Commissioner Of Police Delhi, the death of a 9-year-old boy was caused as a result of beating and assault by a police officer. In the writ petition filed by the Women’s Civil Rights Organisation, known as Saheli, the Supreme court allowed damages to the boy’s mother.
In Chairman, Railway Board v. Chandrima Das, a Bangladeshi woman was gang-raped by railway employees in a railway building, at the Howrah railway station. It was held by the Supreme court that the right to life contained in Article 21 is available not only to every citizen of the country, but also to every person, who may not be a citizen of the country. The Central Government was, therefore, held liable to pay damages to the person wronged by railway employees.
In Maneka Gandhi v. Union Of India, the Supreme Court stated the following – The Maxim that King can do no wrong or that the Crown is not answerable in tort has no place in Indian because the sovereignty now vests in the people, who elect their representatives to run the Government. The representative has to act in accordance with the provisions of the Constitution and would be answerable to the people if they act contrary to the provisions of the constitution.
In N. Nagendra Rao & Co. V. State of A. P., the Supreme court considered the question of vicarious liability of the government for the negligence of its servants. It noted the earlier Supreme court decisions in Vidyawati’s and Kasturi Lal’s cases, recommendations of the law commission in its first report for statutorily recognizing the liability of the state as had been done in England through crown proceedings Act, 1947 and in U. S. A through the Federal Torts Claims Act, 1946. It, therefore, held that the doctrine of sovereign immunity has very less relevance in the present day. If we see in the context of India we don’t have any law like England and the US.
It is unfortunate that yet no effect has been given to the recommendation of the law commission made long back in 1956, and suggestions made by the Supreme court in various cases. The unsatisfactory position of this doctrine is against social justice in a welfare state. It is hoped that the Act regarding the state liability will be passed without much further delay.
The recent judicial trend regarding the liability of state I’d undoubtedly, in favour of holding the state liable in respect of tortious acts committed by its servants. In case of wrongful arrest and detention, police atrocities, keeping the undertrial prisoners in jail for long periods, committing assault or beating up prisoners, etc. the courts have awarded compensation to victims or to their heirs and legal representatives of the deceased. We can’t stick to the old concept of sovereign and non-sovereign functions of the state for determining state immunity in modern age world where the functions of the government in a welfare state are manifold, all of which cannot be said to be the activities relating to the exercise of sovereign powers. With changed condition and concept of the welfare state, the doctrine of sovereign immunity in its old form has very less relevance in the modern age where the concept of sovereignty itself has undergone a drastic change. We need an Act regarding state liability which can fulfil the needs of modern age India.
Jus Commune is an online forum that promotes and seeks to maintain various legal competitions. The contests’ platter shall consist of quizzes, article writing, judgment writing, online debates etc. We strive to stimulate your abilities and encourage you to sharpen your skills. We would showcase the best compositions with pride on Jus Commune. We believe that it’s a competition which ensures the survival of the fittest.
As Law students, it is our duty to simplify the complexities prevailing within the legal mechanism and convey them to the masses for their better perusal – at Jus Commune, we aim to eliminate legal illiteracy in the country and ensure that people exercise their Constitutional Privilege of Freedom of Speech and Expression by the mode of Legal Writing.
Several reputed Law Colleges and Legal Forums in India invite people for expressing their views and opinions in the form of an Article or Research Paper for Journals, Conferences and Seminars for promoting the exchange of ideas and finding a proper solution upon a particular aspect. And for enabling participation and publication, interested persons are expected to submit Abstracts – short write-ups explaining what the author seeks to convey through their Full Paper is expected to be done meticulously, if an opportunity to suggest measures or highlight discrepancies before dignitaries of the fraternity is to be grabbed.
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This article has been written by Yash Dodani, a second-year student at NALSAR University of Law. He has tried to explain the difference between Sale and Agreement to sell.
A contract is a private agreement between the parties involved. It clearly shows us the features of a capitalistic market. To encourage/regulate the business transactions in these market conditions, the colonial government came up with the Indian Contract Act, 1872.[1] The Indian Contract Act is considered as the mother of the Contracts governance in India. It governs as to how the contracts are to be made and what type of considerations are valid. It also governs the sale and agreement to sale. There is a considerable difference between the sale and agreement to sell. This article will deal with that difference. Let’s see the statutes and provisions that deal with the difference.
Section 4 of the Sales of Goods Act, 1930[2] deals with the sale and agreement to sale.
It says that- 4. Sale and agreement to sell.—
It says that an agreement to sell is an agreement where the merchant agrees to transfer the property for a consideration. It further says that an agreement to sell can be absolute in the sense that there is no other condition apart from what was decided as a consideration. It can also be conditional in the sense that there are some other conditions that need to be fulfilled. It says that when the goods are transferred from the merchant to the buyer, it is called as sale, however when the sale will occur in a future time, then it is said to be ‘Agreement to sell’.
The essentials of a valid contract must be there along with the condition that such as there must be some goods and they should have some price, they must have some monetary value.
Section 4[1] of Sales of Goods Act defines sale as under-
A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and another.
Section 5 of the Sales of Goods Act gives as to how the contract can be made. It says —
It clearly says that the contract of sale can be made in writing, orally or partly in writing and partly in oral form.
An agreement to sell is an agreement whereby the goods will be transferred in the future. It is defined under section 4[3] of SGA. An agreement to sell becomes a sale when the actual sale of the goods takes place by the specified conditions. An agreement to sell can also be said as a contingent contract under section 31 of the Indian Contract Act.
| S.No | SALE | AGREEMENT TO SELL |
| 1 | Immediate sale of goods takes place | The sale of certain goods will take place in future upon fulfilment of certain conditions |
| 2 | The sale is absolute | It is conditional because it depends on certain terms and conditions |
| 3 | Sale is an executed contract because the sale is taking place in the present | The nature of the agreement to sell is executory because the sale will take place in future |
| 4 | Risk is immediately transferred | Risk is not transferred until the goods are transferred |
| 5 | Right in rem | Right in personam |
| 6 | Seller can’t resell the good because itis sold out already | Seller can resell if the conditions are not fulfilled by the earlier buyer |
In the case of Cehave N.V. v. Bremer Handelsgesellschaft mbH; the Hansa Nord[3] certain product was to be delivered to the plaintiff by the defendant. The product was to be delivered in certain quality and some quantity was not in that quality. But the product was still in a condition to be sold but the plaintiff sued.
The court held that the sale is valid and even if the agreement to sell conditions have been breached, the plaintiff can’t cancel the contract because the sale can still be made of that product.
Hence, there is a considerable difference between the sale and agreement to sell which was discussed above.
This article is authored by Pankhuri Pankaj, a 3rd-year student pursuing BA-LLB (Hons.) from Vivekananda Institute of Professional Studies, affiliated to GGSIPU. She is currently interning with Lexpeeps. This article summarises certain key provisions of the “Right to Education Act” and is qualified in its entirety by reference to the Right to Education Act, 2009.
It is not so hidden fact that in our country India educational challenges have been quite prevalent at both the centre and states for many years now. The RTE Act or the Right to Education Act, 2009 which was enacted by the parliament of India on the 4th of August 2009 and came into effect on 1st of April 2010 describes the modalities of the importance of free and compulsory education for children under Article 21(A) of the Constitution. With this act, India became the 135th country in the world to make education a fundamental right for every child between the age of 6 to 14 years.
This act focuses on making the child free of fear, trauma and anxiety through a system of child-friendly and child-centred learning and aims at identifying children who are eligible for receiving an education but do not have the means to by keeping a check through regular surveys on all neighbourhoods. It prescribes minimum norms for elementary schools, prohibits unrecognised schools from practice and advocates against donation fees and interviews of children at the time of admission.
1. The RTE Act enforced under Article 21(A) deals with providing primary education to all children between the ages of 6 to 14 years and provides a provision for admitting the unfortunate non-admitted children to an age-appropriate class.
2. It also mandates a 25% reservation for disadvantaged sections of the community like the Socially backward class, differently-abled and the SC/STs and lays down the provision of sharing of financial responsibilities between the Centre and the State.
3. The act deals with laying down norms and standards related to provisions like PTRs, School-working days, Teacher-working hours, Buildings and infrastructure, etcetera, and provides for the appointment of teachers with the requisite entry and academic qualifications only.
4. Along with adding a few provisions this act has worked at the prohibition of some activities as well like: the No Detention Policy has been removed, deployment of teachers for non-educational work has been prohibited, and physical punishment and mental harassment have been prohibited in addition to screening procedures for admission, capitation fee, private tuition by teachers, and running of school without recognition.
5. The Act works at improving learning outcomes to minimise detention and introduced the Continuous Comprehensive Evaluation (CCE) system to ensure grade-appropriate learning outcomes in school. It also includes that all schools covered under this act are obligated to constitute a School Management Committee (SMC) consisting of a head teacher, local elected representative, parents, community members etc. The committees have been empowered to monitor the functioning of schools and to prepare school development plans.
1. This Act has made education inclusive and accessible nationwide and managed to increase upper primary level children successfully and more than 3.3 million students were able to secure admission under the 25% quota norm under the act.
2. The act has been able to improve school infrastructure, especially in the rural areas, by enstating stricter infrastructure norms.
3. The removal of the ¨no detention policy¨ under the RTE Act has been able to bring accountability in the elementary education system leading to the better educational experience for the students.
4. In addition to the Act, the Government also launched the Samagra Shiksha Abhiyan which is an integrated scheme for school education. This scheme is known to subsume the three scheme of school education, namely: The Sarva Shiksha Abhiyan (SSA), the Rashtriya Mashyamik Shiksha Abhiyan (RMSA), and the Centrally Sponsored Scheme on Teacher Education (CSSTE).
1. The prescribed age group which ranges between the ages of 6-14 leaves the age groups from 0-6 and 14-18 at a disadvantage making many start education late or quitting high school after completing the age of 14 due to financial instability.
2. Even though the act focuses on providing a better environment for studying but no focus has been shed on the quality of learning and thus, the act appears to be mostly input-oriented only.
3. The notification regarding the 25% seats for the underprivileged children of the society under the RTE Act has not been issued to five states, namely: Goa, Manipur, Sikkim, Mizoram, and Telangana.
4. The lack of teachers has resulted in affecting the pupil to teacher ratio in the schools mandated by the RTE Act which in turn has resulted in affecting the quality of teaching in the schools.
After being in action for 11 years now it is visible to a naked eye that the RTE Act has most definitely been able to bring some major changes in the society and has been somewhat successful in reaching some of its goals, but it is also the bitter truth that it still has a long way to go to be called successful in its purpose. The RTE act was able to bring a hospitable environment for the children to study in but the quality of education still needs to be delivered. The need for more focus on teacher training programs has become important and the quality of education needs to be emphasized over quantity of education. The bottom line is that society as a whole needs to be supportive of education for children without biases.
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This article is written by Anurag Maharaj, a student at Lloyd Law School, Greater Noida.
Indian Penal Code section 319 to 338 addresses hurt and grievous hurt in different ways.
Hurt as specified in Indian Penal Code Section 319- “It is said that whoever causes any individual physical pain, disease or infirmity causes harm.”
Under Section 320 of the Indian Penal Code – The following forms of hurt are known as “grievous” only –
Specified in Indian Penal Code 319. Anyone who causes any individual physical pain, disease or infirmity is said to cause hurt.
There has to be no direct physical contact to inflict harm. Where the direct outcome of an act causes bodily pain, whatever the means used to cause it is hurt. Hurt is caused by physical pain and not by emotional pain.
An individual who passes on a specific disease to another individual will be guilty of hurt. However, the transmission of disease through sexual connection under section 269, IPC, for spreading of infection and not of causing hurt.
This implies an organ’s failure to perform its usual role and can be either temporary or permanent. This signifies a temporary weakness of the mind, insanity or terror.
Sometimes, there is no intention to cause death, or no knowledge that death is likely to be caused, and death is caused then, the accused will be guilty of ‘hurt’ only if the injuries are not serious in nature. So, the intention is very important in such kinds of cases.
Section 320 provides for enhanced punishment in grievous injury cases. Therefore, to assess the offence of causing grievous hurt, some particular hurt must occur, caused willingly, and should occur in any of the eight forms of hurt specified in this section.
Under Section 320 of the Indian Penal Code – The following forms of hurt are known as “grievous” only –
Emasculation refers to the denial of man’s masculinity, strength and manhood, and thus renders him impotent of identity and speech.
This clause is confined only to men. Emasculation may result from a person’s scrotum causing such harm as the effect of rendering him impotent. The impotence impelled should be permanent, and not just temporary and healable.
Any other accident of the same nature is a permanent loss of sight either of the eyesight or of both. Such harm may have the effect of depriving the wounded of the use of one or both of his eyes permanently. It is the permanence of the harm as it deprives a person of sight usage and disfigures him additionally.
It is a severe loss that deprives someone of their sense of listening. To gain this clause the deafness has to be permanent. Such harm may result from a blow to the head, neck, or one’s head elements that talk to and damage the auditory nerves, or from pressing a stick into the neck, or from inserting a substance that induces deafness in the ear.
The term used in the section is deprivation of any member, section or join, crippling a lifelong misery man. The term member is used to describe literally an organ or a limb.
Disfiguring means causing any external damage which is harmful to the personal image of an individual. This shouldn’t hinder him. And irreversible involves doing something that causes a permanent handicap and not a mere temporary injury.
Disabling can be distinguished from disfiguring, as stated in clause six. Disfiguring means causing any external damage which is harmful to the personal image of an individual. This shouldn’t hinder him. On the other hand, disabling involves doing something that causes a permanent handicap and not a mere temporary injury.
A fracture must extend to the inner surface, in order to attract this clause. If the act just results in abrasion and does not crack the bone, it does not result in a fracture.
Any hurt that endangers life or causes the sufferer to be in extreme physical distress, or unable to continue his ordinary pursuits, within twenty days.
1. The accused was a prostitute in Raka v. Emperor, and inflicted syphilis on her clients. According to section 269 of the IPC, it was held that the convicted prostitute was liable for the careless act likely to spread infection of any disease harmful to another person’s existence.
2. Marana Goundan v. R
The accused asked the deceased for money which the latter had owed him. The deceased later pledged to pay. The accused then kicked him into the abdomen and the deceased collapsed and died. The accused became guilty of causing harm because it could not be said that he meant or knew that kicking on the abdomen was likely to endanger existence.
3. Gangaram v. Rajasthan State
The nose bridge was sliced and the damage was caused by a sharp-edged knife, it was held that the act led to permanent disfiguration within the context of this clause and that the damage was grievous.
4. In Mohammad Rafi v. Emperor, the accused caused damage to the neck of the person who had died, and the Lahore High Court held the accused person at risk under Section 322 for causing death by grievous harm as a result of guilty homicide not involving the murder.
To constitute hurt (specified in section 319), any of these 3 essentials are needed to be caused:-
1. Bodily pain
2. Disease
3.Infirmity to another.
And there are eight forms of hurt specified in section 320 of the Indian Penal Code which are known as “grievous” hurt. The greater part of the cases in every single criminal court is ‘deliberately causing hurt’ cases.
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