Month: August 2020

Case Analysis: Smith v. Leech Brain & Co.

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This article has been written by Tanya Gupta, a student pursuing BA LLB from Ideal Institute of Management and Technology and School of Law, affiliated to Guru Gobind Singh Indraprastha University, Delhi.  This article focuses on the brief explanation of the case Smith v. Leech Brain & Co. (1961) 3 AII ER 1159.

INTRODUCTION

This is an English tort law landmark case related to the concept of negligence.

Equivalent Citation

[1962] 2 QB 405

Judge

Lord Parker CJ

Decided In

1962

Court

Queen’s Bench Division

Relevant Law

Law of Torts

Concept

Negligence

Facts

Mr. Smith employed in a factory owned by the Leech Brain (defendant). Mr. Smith employed as a galvanizer whose role was to remove articles from a tank of molten metal (roughly 400 degree Celsius) using a crane. His duties included using a crane to lift metal items and immerse them into a tank of molten zinc. The crane had a shield to protect the operator from the hot metal.

One day whilst operating the crane, Mr. Smith inadvertently put his head outside of the shield and his lip was burnt by some spitting molten metal. The burn was treated but did not heal. He eventually developed cancer and died 3 years later. 

Issue Before the Court

The issue raised before the Queen’s Bench Division was whether the employers could be liable for the full extent of the burn and cancer that had developed as a result or would a person’s predispositions matter in the award of damages.

Ratio of the Case

As it is found that the burn was a negligent action on the part of Leech Brain as they did not provide an ample safety, and it at least partially led to the development of cancer, due to which he died 3 years and therefore the defendant was held liable. For action in tort, you take a plaintiff as he or she comes- the fact that they have a condition that led to more damages than normal is not a factor in determining the damages.

Decision of the Court

 The Court held that the burn was a foreseeable consequence of the defendant’s negligence and this resulted in the death. The defendant was liable for his death. It was not necessary to show that death by cancer was foreseeable, nor that an ordinary person would not have died from the injury. Lord Parker stated that the eggshell skull rule applies and taking the victim as you find them has always been the established law and this was affected by the ruling in the Wagon Mound case. He concluded that this case was covered by the orthodox principle that a defendant must take his victim as he finds him.

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Admissibility of Expert Evidence

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This article is written by Joyita Mukhopadhyay from Amity university Kolkata.

INTRODUCTION

In today’s world, the law needs an opinion which requires some special assistance and some special skilled person. This specials skilled person is known as an expert. In today’s world, it is very necessary to have an expert for giving a proper recommendation and opinion, which makes the case more relevant and gives justice to the needful.

 What is Expert Evidence 

Expert evidence is secured under Ss.45-51 of the Indian Evidence Act. S.45 of the Act permits that when the topic of inquiry related to science or craftsmanship, as to require the course of past propensity or study and as to which unpracticed people are probably not going to frame the right judgment. It permits a specialist to delicate proof on a specific reality being referred to and to show to the court that his discoveries are unprejudiced and scientific.S.46 of the Act expresses that realities, not in any case important, are pertinent if they support or are conflicting with the assessment of specialists when such sentiments are applicable. S.47 of the Indian Evidence Act solely manages the feeling with regards to the handwriting. The clarification further explains the conditions under which an individual is said to have known the contested penmanship. The master assessment isn’t kept to penmanship alone. The conclusions corresponding to customs are likewise acceptable as per S. 48 of the Indian Evidence Act.

Who can be called Expert

The meaning of a specialist might have alluded from the arrangement of Sec.45 of Indian Evidence Act that a ‘Specialist’ signifies an individual who has exceptional information, expertise or involvement with any of the accompanying – 

1)foreign law, 

2) science 

3)art

4)handwriting or 

5) finger impression 

what’s more, such information has been assembled by him— 

a) by training, 

b) perception or 

c) legitimate examinations. 

For instance, clinical official, compound examiner, hazardous master, ballistic master, unique mark master, and so on. 

As indicated by Sec.45, the meaning of a specialist is kept uniquely to the five subjects or fields as referenced previously. Be that as it may, for all intents and purposes there are some more subjects or fields on which the court may look for assessment of a specialist. 

A specialist witness is one who has committed time and study to a unique part of learning and hence he is exceptionally gifted on those focuses on which he is approached to express his conclusion. His proof of such focuses is allowable to empower the court to arrive at a palatable resolution. 

Duty of the Expert

There are some duties which the expert have to maintain while asset the truth .It is the obligation of master observer is to outfit the adjudicator with important logical rules for testing the precision of the ends so the adjudicator with important logical rules for testing the precision of the ends so as to empower the adjudicator to shape his free judgment by the use of these models to the reality of the case. The validity of an observer relies upon the explanation expressed in spot of his decision and the information and material outfitted that shapes the premise of his end, it is likewise the obligation that no master can guarantee that he could be certain beyond a shadow of a doubt that the supposition was given right by him. The expert should submit his reports to the court which he has assets in. The experts report should be 

Give all the details related to his qualification and specialization on particular matter

Experts have to state who performed the experiment with all the details and whether the experiment has been done under any  special supervision or not, what’s more, the explanation if any given by the individual who performed the test.

The report should have a  summary of conclusions.

Acceptability of Expert Feeling 

The expert conclusion becomes acceptable just when the master is inspected as an observer in the court. The report of a specialist isn’t allowable except if the master offers purposes behind shaping the input and his proof is tried by interrogation by the unfriendly party. However, to shorten the deferral and costs associated with making sure about the help of specialists, the law has shed an assessment of some logical specialists. 

For instance, Sec.293 Cr.P.C. gives a rundown of some Govt. Logical Experts as following:- 

Any Chemical Examiner/Asstt. Concoction analyst to the Govt. 

The Chief Controller of explosives

The Director of the Fingerprint Bureau 

The Director of Haffkein Institute, Bombay

The Director, Dy. Chief or Asstt. Executive of the Central and State Forensic Science Laboratory. 

The Serologist to the Govt. 

Any other Govt. Logical Experts determined by warning of the Central Govt. 

The report of any of the above Govt. Logical Experts are allowable in proof in any request, preliminary or other continuing and the court may, on the off chance that it thinks fit, call and look at any of these specialists. However, his appearance in the court for assessment as witnesses might be excluded except if the court explicitly guides him to show up by and by. He may depute any mindful official to go to the court who is working with him and familiar with the realities of the case and can remove him in the court acceptably for his sake. 

Different Types of Expert Opinion

The test is that the issue is outside the information and experience of the layman. Individuals who can be named as a specialist are clarified in detail underneath.

Handwriting expert’s opinion (Section 47)

At the point when the court has an assessment of who has composed or marked a report, the court will consider the assessment of an individual who is familiar with the handwriting. That individual will offer an input that specific handwriting is composed or not composed by that specific individual or not. 

The handwriting of an individual might be demonstrated in the accompanying manners: 

An individual who is a specialist in this field 

An individual who has observed somebody composing, or 

An individual who has obtained any record is composed of the individual whose penmanship is being referred to or under the authority of such an individual and is routed to that individual.

An individual who normally gets letters or papers which are composed by that individual 

An individual who is familiar with the marks or composing of that individual 

An ensuring authority who has given a computerized signature authentication when the court has shaped a conclusion for the advanced mark of an individual. This is referenced under area 47-An of the demonstration. 

The proof of the essayist himself. This is referenced in area 60 of the demonstration. 

On the off chance that someone else concedes that the records were composed by him. This is referenced in segment 21 of the demonstration. 

An individual who has seen the individual composition or marking. This is referenced under area 60 of the demonstration. 

At the point when the court himself contrasts the archive being referred to and whatever another record which is demonstrated certifiable in the court. This is referenced in segment 73. 

The court may approach the individual to compose something for the court to contrast it and the report being referred to.

Opinion for Electronic proof (Section 45 A): 

At the point when a snippet of data is communicated or put away in a PC framework and the court needs help or supposition for the equivalent regardless; they allude to an analyst of electronic proof. This inspector of electronic proof is known as the master in such cases. 

For this segment, electronic proof incorporates any data communicated or put away in any PC asset or some other electronic or advanced size up electronic proof inspector is required according to area 79 A of the Information Technology Act, 2000.

Opinion for Foreign Law (Section 38 r/w Section 45)

When there is a law of winning in any outside nation which should be considered for giving judgment regardless, the court needs a specialist who is knowledgeable with that law. 

Something else, the court can take the feeling from a law-book which contains the appropriate response for any unfamiliar law. These books must be printed or distributed under the authority of the legislature of that nation. Different reports of the decision of the courts can likewise be taken as pertinent which are given in such books of unfamiliar law. 

Unfamiliar law in India is constantly considered as an issue of certainty [5]. There have been situations where the court has deciphered individual laws as Indian laws and therefore are the rules that everyone must follow [6]. In this manner, the court doesn’t require an individual to decipher the law as the courts can carry out that responsibility all alone. 

Opinion for Fingerprint

For the most part, finger impression master’s conclusion is given more worth because: 

The fingerprints of any individual continue as before from their introduction to the world till death, and 

No two people are ever found to have similar finger impressions 

Impression examines are picking up significance these days yet the courts have been hesitant to acknowledge that as a bit of proof. An individual, who is a unique finger impression master, is called to coordinate at least two fingerprints, then the assessment of such a specialist is pertinent and allowable in the court. 

Opinion for Science or Art 

The words ‘Science and Art’ are to be extensively developed. The term ‘science’ isn’t restricted to higher sciences and the term ‘workmanship’ isn’t constrained to expressive arts, yet having its unique faculties of handiwork, exchange, calling, and ability in work. 

To understand that if any ability goes under the head of ‘workmanship’ or ‘science’; the accompanying tests can be applied 

Is the topic of the injury to such an extent that unpracticed individuals are not fit for framing a right judgment without the help of specialists? 

Is the character of a science or workmanship as with the end goal that it requires a course or an investigation to acquire a piece of capable information or ability. 

Science and Art mean the exercises which incorporate the fields which require extraordinary information or skill structure an assessment. Before assigning that an individual is a specialist, it should be watched that the field or the issue on which we are looking for the conclusion ought not to be something which can be effortlessly comprehended by layman or court with no extraordinary information or aptitude. 

The logical inquiry included is thought to be not inside the court’s information. Subsequently, cases, where the science in question, is exceptionally specific and maybe even recondite, the focal job of a specialist can’t be contested 

Each science has its specialized terms, which are so much Greek or Hebrew to the normal juryman. What might the Ordinary man think about this response to an inquiry whether a specific portion of a solution containing chloral would have been perilous? 

There can be different classifications that can be treated under craftsmanship and science. Some of them are examined beneath for better understanding.

The opinion of Medical Expert 

By and large, the assessment of clinical specialists is required. Particularly in criminal cases, the clinical assessment of charged and casualty is fundamental. When for a situation, the court requires some conclusion which includes clinical details, they ask clinical officials. 

Opinions of a medical officer can be used to prove:

The Physical state of the individual, 

Age of an individual 

Reason for the death of an individual 

Nature and impact of the infection or wounds on body or psyche 

Way or instrument by which such wounds were caused 

Time at which the injury or wounds have been caused. 

Regardless of whether the injury or wounds are lethal 

Cause, side effects and eccentricities of the malady and whether it is probably going to cause the demise 

Plausible future results of a physical issue and so on. 

State in an assault case, the clinical report of the person in question and blamed are for extraordinary significance. If the clinical official says that he feels that demonstration was not consensual alluding to the wounds on the body of the person in question and the nail scratches on the body of the charged, this supposition conveys a great deal of significance. 

In any case, the issue with these specialists is that they are constantly called by one gathering just who has to prove in support of themselves. This is the explanation that the court is hesitant to depend totally upon the perspectives and assessments of the master however they think about the equivalent while giving their judgment. 

In different cases, if the court finds that the master’s supposition is in logical inconsistency with the assessment of an observer then for evident reasons, the typical observer’s feeling is offered inclination over the master’s input. This is because the master’s announcement is simply opinionative though the other observer’s announcement depends on the realities of the case.

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Online Internship Opportunity at ejusticeindia.com: Apply Now!!!

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About E-Justice India

E-Justice India is India’s Leading Online legal Portal Managed by CSM Partners and Associates LLP (AAS-5840).  It is dedicated to Law students, Lawyers & Attorneys. Its aim is to provide Education in Indian Legal Sector. Through this Portal, we set-up towards Right to Education. Our Portal provides Legal News, Law Articles, Leading Case Summary, Law Notes, Certificate Courses, Free Legal Advice, Success Stories of Advocates, Interview of Advocates & Judges and Information about Upcoming Law Events.


ABOUT THE INTERNSHIP

  1. ejusticeindia.com is looking for undergraduate law students as legal interns for the month of August-September, 2020.
  2. Interns are expected to have strong writing, research and analytical skills along with basic knowledge of MS – Word.
  3. Interns with prior experience of legal writing will be given preference.
  4. The duration of the internship would be four weeks which can be extended based on the interest and performance of the interns

IMPORTANT GUIDELINES

  1. You may update your position to ‘Intern at E-Justice India’ on your social media accounts. ejusticeindia.com is active on LinkedIn, Facebook, Instagram. Please like and follow.
  2. Deadlines: – There will be reasonable deadlines given to the interns for their work. Interns are expected to adhere to those deadlines. Each interns’ performance will be tracked on an individual basis. ejusticeindia.com reserves the right to terminate the internship based on the non-fulfilment of the deadlines. If the internship is so terminated, the candidate will not be provided with the certificate and other perks
  3. You’ll be in touch with the Internship Coordinators through Mail. All the reporting and dissemination of information will take place through the Mail.

Last Date to Apply: 13 August 2020
Duration: 15 August to 14 September
Interns will be selected on the basis of their C.V

Application Procedure

Candidates have to apply through the Given Link

https://docs.google.com/forms/d/e/1FAIpQLSdrUUB4c9b4pUBOTK3cxSZDUEDyoOByNkVR_ZNQSsVdcVKbKA/viewform

For any other queries, feel free to write to us at contact.ejusticeindia@gmail.com

JUS IMPERATOR CALL FOR PAPER VOLUME 4 TH ISSUE 1 ST BY JUS IMPERATOR

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About the journal

The Journal is a quarterly, ISSN peer-reviewed (ISSN: 2456-9666) publication of Jus Imperator. The Journal will showcase the recent developments in the field of law and management. Jus Imperator is indexed in International scientific indexing, IP Indexing, I2OR Indexing and having Impact Factor.
Submission Guidelines

Theme:

 Candidate can select any topic related to law or Management.
Word Limit:
 Special Articles: any topic related to law and management (2000 words)
 Short Articles: 1000 words
 Book Review: Any new book launched relating to law and management 2,000 words
 Original Research Articles: both imperative and theoretical
 Review Articles: Review on any topic with proper justification
 Short Communications: maximum of 3000 words
 Case study

Important Dates

Last Date of submission:- 30 th September 2020

Perks

  1. All authors will get the E-certificate of publication
  2. Best research paper will get an oppurtunity to work as intern editor under our
    editorial board.
    Submission Procedure and fees
    Authors have to mail their manuscript on lawjournal.jusimperator@gmail.com
    For any queries mail us on jusimperator@gmail.com

Publication Fees:-

For Single author: – Rs. 1000
For Co-author:- Rs. 1500
For three author: – Rs. 2100

Contact

For more details or queries authors can also WhatsApp us on 8349076187.

Debating the Capital Punishment

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This article has been written by Shivani Kumari, a student of Lloyd law college, Greater Noida. This article will impress upon all the aspects of capital punishment which is interchangeably used with the word death penalty.

INTRODUCTION

Capital punishment is one of the integral parts of the Indian criminal judicial system. The practice of executing a criminal to death for a heinous crime after conviction by a court of law for a criminal offence is known as capital punishment. It is the most severe legal form of punishment in India. It is awarded in the cases of most heinous and grievous crimes against humanity. Capital punishment is a return of violence for violence which is also known as “an eye for an eye”. For centuries it is believed in India that a person who has done wrong should suffer for it and inflicting capital punishment on wrongdoers discourages others or creates deterrence in the society and abides others from doing the same wrong. The term death penalty is most of the time used interchangeably with capital punishment, however, a penalty is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment.”

Capital punishment is regarded as one of the most sensitive subjects of debate in India. The concept of the abolition of capital punishment has now been spread globally however India continues to cling such harsh punishment.

Evolution of Capital Punishment in India

From ancient times the capital punishment was imposed for multiple numbers of offences in India. It was prevailing from the times of Manu, who mentioned in his Manusmriti, “ To refrain people from sinful murders, the death penalty was necessary, otherwise anarchy will prevail”. All the invaders of India whether Aryans or Mughals, everyone some or on other ways had prevailed capital punishment in their administrative systems. Even Britishers believed that hanging to death is the only legalized form of inflicting punishment to the offenders. 

From the pre-independence era till now, our legal system has come a long way forward and has undergone various changes in it. After Independence, till 1955, capital punishment was very common as the punishment for murder. If anyone commits the offence of murder, he will be simply awarded the death penalty, but in the year 1955 sessions judge were given a discretionary power to either give capital punishment or life imprisonment for an offence. This was continued till 1973 when the code of criminal procedure (CrPC) was an amendment, Parliament made it mandatory for the sessions judge to provide specific reason while imposing capital punishment or life imprisonment for the offence of murder. Further, in 1980, a landmark judgment was passed by the Hon’ble Supreme court of India in the case of Bachan Singh v. the State of Punjab. In this case, the court held that capital punishment can only be imposed on a ‘rarest of the rare case’. This means that the alternative sentence of life is unquestionably foreclosed. In Machhi Singh v. the State of Punjab, the court provided some exceptions to the earlier judgment of Bachan Singh’s case. These exceptions are:

  • If the murder is committed in an extremely brutal manner to eros extreme initiation of the community
  • If the murder is committed by a motive which evinces total depravity and meanness
  • If the crime is enormous in proportion

Objective of Punishment in India

 The Indian judicial system mainly has three objectives to provide punishment to a person who has been involved in an offence.

  • Retribution: It means punishment given for the action or the offence committed by a person. It can be any form of punishment including penalties for the wrongs. This is applicable for any wrong in the eye of law.
  • Reformation: This is a type of punishment in which the judiciary tries to change the criminal nature of the accused and retransform him as a better person so that the person would not repeat any crime or offence in the future. The theory of reformation is based on the obligation of a society to reform a convicted person and after his reformation accept him as a normal citizen of the society. It is done to provide another opportunity for the person to live a better life. The concept of reformation is not followed under capital punishment because in capital punishment a person is completely denied his right to life, the offender does not continue to leave so he does not get any another opportunity to change himself
  • Deterrence: It is the action taken by the judiciary to discourage an act or crime by imposing harsh punishments. It is done by creating a fear of the consequences and the punishment imposed under this is mainly the death penalty. This theory was adopted so that the people living in a society, other than the accused also learn that particular misconduct in the society can even lead to the death penalty and hence, this will fulfil the objective to create fear in the minds of people. But as if now there is not sufficient proof to show that the death penalty operates as a greater deterrence then life imprisonment.

Protection Guaranteed under Constitution

These protection provisions point out the fact that the death of prisoners has been humanized under the constitution itself. These are the following protection provisions:

Article 21: No person shall be deprived of his life or personal liberty except according to the procedure established by law.

In Maneka Gandhi’s case, it was held that Article21 efforts protection not only against executive actions but also against legislations. It means that a person can be deprived of his life even under capital punishment only if there is a law which is just, fair and reasonable.

Article 72: Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases

It states that the president of the country can pardon even the death sentence while the governor in a state cannot. It empowers the President with the power of pardoning. It is also called the pardoning power of the President.

Article 134: Appellate jurisdiction of Supreme Court in regard to criminal matters

It provides that there is a right of appeal from the High Court to the Supreme Court. This is applicable is any case where capital punishment was imposed on an accused in the reversal of an acquittal order.

Scope of Judicial Review

This is the last scope available to an accused. It is applicable when the president denied the grant for pardon and if the presidential decision not to grant pardon is arbitrary irrational and discriminatory.

CONCLUSION

Capital punishment is the last resort available for punishing an accused. Many countries are against capital punishment because of the possibility of a mistaken conclusion by the judiciary. If on a subsequent occasion it is discovered that the judgment which was passed is a mistaken conclusion in that case the death penalty is un-rectifiable, the person is no more and judiciary will fail for hanging an innocent to death. Capital punishments are sometimes even passed by the arbitrary nature of the judges. It means sometimes without having concrete evidence and reason, on the personal choice or discretion of the judge death penalties are imposed. The same has been backed by law commission in the year 2015. There are constitutional remedies available but sometimes they are not able to protect the offenders from the imposition of capital punishment. Capital punishments even do not satisfy its objective of reformation and creating deterrence in society.

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Right to Food: Universal Recognition and Problems in Indian Context

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This article is written by Akshat Mehta, a student of the Institute of Law, Nirma University, Ahmedabad. In this research article, he has tried to analyze the issue of ‘Right to Food’ with constitutional lenses. He also reported the universal recognition of ‘Global Hunger’ as a problem and mechanism to overcome it. 

INTRODUCTI

The government often seems to frame legislation and subsidy programs to serve the needy. The advocates of Human rights use to link the issue of ‘Right to Food’ with fundamental rights of Humans. In the global scenario, almost 54 Lakh people die every year across the world due to hunger or any disease caused due to hunger as per the World Count report. A universal criticism of ‘Global Hunger’ is poverty. Poverty raises a scepticism approach towards the functioning and serving of the government. There is a worldwide criticism that several governments are facing due to its malfunctioning and bad performance in the ‘Global Hunger Index’. 

International Approach

For the first time, the United Nations realized the need for laws and statutes to regulate the matter related to ‘Right to Food’ and ‘Standard of Living’ through Economic, Social and Cultural Rights (ESCR) in the United Nations Declaration of Human Rights (UNDHR) in 1948. Several articles were added in the declaration of Human Rights which addresses the basic, crucial, and fundamental rights of Human beings. Right to marriage and Family, Right to decent Living, and Right to seek equal treatment are some of the crucial articles added in the declaration which could address the problems of the poor in relation to poverty. So UNDHR is the 1st such document which recognized that Right to food is a part of Economic, Cultural, Social and Political domain. 

Another significant need to issue the problem of ‘World Hunger’ aroused in International Covenant on Economic, Social and Cultural Rights (ICESCR) when the report titled ‘Right to Food as a Human Right’ was then published in 1987. It poses critical questions on the government worldwide due to alarming data of ‘World Hunger’ and death due to hunger came into the picture. Several investigations had taken place after the report to curb Global Hunger and to make the government accountable. 

US-based International Food Policy Research Institute (IFPRI) released the ‘Global Hunger Index’ for the first time in 2006. Since then it releases the report titled ‘Global Hunger Index’ every year which tends to show the condition of various countries of the world in numerical figures which are efficient in terms of serving the need of food and which are not successful in catering to the need for food to its countrymen. 

The ‘Global Hunger Index 2019’ ranked Yemen, Malaysia, Madagascar, Venezuela, Lebanon, Mauritania, Jordan, the Central African republican and Oman at the lowest rankings. These countries are facing large scarcity and nationwide poverty which is an alarming situation as per the report. Countries like Belarus, Bosnia, Herzegovina, Bulgaria, and Chile were ranked as the top countries which are least affected by ‘hunger’.

Problem in Indian Context

As per the ‘Global Hunger Index’ report, the situation of India is not much optimistic. The data suggested that India ranked 102nd out of 117 countries. India is ranked below Pakistan, Nepal, Bangladesh, Sri Lanka, and other south Asian countries indicate that ‘India is suffering from the serious hunger problem’. Hunger problem has also contributed to a higher infant mortality rate, malnutrition, and lower life expectancy. The report suggested that in India only 9.6% of children between the age group of 6 to 23 were given a standardized diet. Now, this alarming data raised some of the burning questions which are necessary to be addressed as the need of the hour. 

1)     Is Right to Food linked with Malnutrition?

2)     Does Article 21 of the Constitution of India also include the Right to Food in its ambit?

3)     Whether the democratically elected government in India owes any accountability towards the citizens and the poor in terms of serving the food?

We’ll try to answer each and every question by lenses of Constitutionality and Constitutionalism.

1)     Surely, whenever the question of ‘Right to Food’ arises simultaneously the question of health and nutrition arises. Food is the basic need for human survival and not only food but also there should be standardized and adequate diet. As the GHI report indicated that in India only 9.6% of children between the age group of 6 to 23 could get a proper diet and this contributed to the problem of Malnutrition. Malnutrition is a silent degradation to the country’s manpower. The government is accountable for the citizens not only for providing food but also for providing proper food which contains dietary fibres.

2)     In the case of ‘Olga Tellis v. Bombay Pavement Dwellers’ case, the Honorable Court held that ‘Right to Life’ enshrined under Article 21 of the Constitution of India also includes ‘Right to Livelihood’. Over the period of time in landmark cases such as ‘Kishan Pattnayak v. State of Orissa’, ‘Subhash Kumar v. State of Bihar’ and ‘Chameli Singh v. State of U.P’, the Court realized that Right to Life under Article 21 also includes Social Rights such as ‘Right to Food’ and ‘Right to pollution-free air and water resources’ in its ambit. 

3)     The democratically elected government of India has its foundations in the preamble and the values like Sovereignty, Socialism, Secularism, Democracy, and Republic are the soul of the democratic government. So a Sovereign democratically elected Indian government is socially responsible to cater and serve with the basic need for quality food to the secular citizens of the Republic of India. 

CONCLUSION

Food is linked with human dignity and standard of living. We could not deny the fact that India is the 2nd most populous country in the world and it is very difficult to manage and distribute the food on a regular basis to 130+ Crore people but the government should create such mechanisms or channels through which it could cater to the basic needs of the people such as food, shelter, and water in an effective manner. 

We as a citizen could also contribute in this regard by not wasting the food, by distributing the access food and by realizing that everyone has the right over the natural resource and food is one of the natural resources on which moral claims are much weightier than monetary claims. 

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MOOT PROPOSITION WRITING COMPETITION BY LAW LITIGATORS

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ABOUT LAW LITIGATORS

Law Litigators is a platform where legal students can participate in various competitions, quizzes, write and submit their articles/blogs and also be updated with all the academic opportunities coming their way, in order to boost their career and promote much wider information dissemination.

GUIDELINES OF THE COMPETITION

About the Moot Proposition

Each team participating in the Competition must prepare in the given format. The Mandatory part should be included compulsorily in your moot proposition and other things should be according to your own discretion.
The theme of the competition shall either be Criminal law or Family Law. This Moot problem drafting competition is open to all Law Students and Non-Law students (Academicians, Research Scholars and Lawyers).

Mandatory Part

  1. Name of the Country: – Asgard [The Laws of Asgard are pari materia (same) to the laws of India]
  2. Characters: – Not more than 7 Persons
  3. Duration of the Year: – 2010 – 2020 (The incident should be within this prescribed year)
  4. Crime spot should be compulsorily mentioned in the proposition. (The place can be named according to you)
  5. Reports: – For example Ballistic reports, Police reports, Medical reports etc. (You can consider any reports accordingly).
  6. Issues: – Not more than five issues.
  7. Laws can include – Constitution of India 1950, Indian Penal Code Act 1860, Indian Evidence Act 1872, etc.
  8. Commission of the crime: -The case should be committed only in the country of Asgard.
  9. Word limit: – 1500

 Team Composition

 Author
 Co- Author [max 2 member]

 Important Dates

 Last Date to Register – 29 th August 2020.
 Submission of Moot – 31 st August 2020.
 Result Declaration – 5 th September 2020.

 Registration Fees

 Author: – Rs.200
 Co-Author (Max 2 members): – Rs.300
 Registration Procedure
 Participants are required to register and pay the amount through Paytm or Google pay on 97691 71891 (Unmesh Gavade)
 Participants are required to send a screenshot after their payment via Whatsapp on9619390387 along with participants name.
 Registration Link:-
https://docs.google.com/forms/d/e/1FAIpQLScqM3OEvB7n2MGlDxlf4qcQbCF3saivBi-ZEosH8gN1kWG5Lg/viewform?usp=sf_link
NOTE: If any participant’s backout then there will be no refund!

 TEAM CODE:

The team code must be ascribed on the top right corner of the cover page. There must be no mention of Name, Contact number, Email id, University name etc in the memorials.

Team Code shall be communicated to the respective participant/teams by the Organizing Committee once the registration process has been completed by the participant/teams.

 SUBMISSION OF SOFT COPIES

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 EVALUATION CRITERIA

Following would be criteria for judging the Memorandum:

Sr.
No.

Parameters Marks Allotted
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2 Use of law-20 marks
3 Legal issue- 20 marks
4 Presentation- 20 marks
5 Originality- 20 marks

The Supreme Court’s Judgment on Adverse Possession….

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                                                  Report by- Riddhima Bhadauria 

The supreme court holds that a person in possession cannot be dispossessed by another, except by due process of law. In this case the supreme court has observed that a memorandum of family settlement is not required to be registered and is binding on the parties and it is being clarified that a person claiming title by virtue of adverse possession can maintain a suit for declaration of title. The bench consisted of Justice AM Khanwilkar and Dinesh Maheshwari.

Issue  involved-

Whether   the document Exhibit P­6 was required to be registered as interest in immovable property worth more than Rs.100/­ was transferred in favour of the plaintiff? 

Petitioner’s contention(represented by learned counsel Manoj Swarup)

 The suit was filed by the  Harbans   Singh,     against   his   real   brothers   Mohan Singh    and   Sohan   Singh  for a  declaration  that he was the  exclusive owner   in   respect   of   land   admeasuring   11   kanals   17   marlas comprising khasra Nos. 935/1 and 935/2 situated at Mohalla Road   and   other   properties. His land includes the construction thereon (16 shops, a samadhi of his wife,one service station with boundary wall).

The trial court judgement-

ssssIn   view   of   my   discussion   on   various   issues above, the suit of the plaintiff partly succeeds and partly fails.   Therefore, his suit is decreed partly to the extent that he is declared to be owner in possession of khasra no. 935/1/1/2 (5­18) and to the extent of ½ share in khasra   no.   935/1/1/1   (5­19)   with   construction   there upon.     Keeping   in   view   the   relationship   between   the parties and the circumstances of the case, no order as to cost.     Decree   sheet   be   prepared   accordingly.     File   be consigned to the record room.”

 Harbans Singh has decided to file suit for declaration   praying   for   a   decree   that   he   was   the   owner   in possession   of   the   land   admeasuring   11   kanals   17   marlas comprising khasra Nos. 935/1 and 935/2 situated at Mohalla Road. During the pendency of the trial he expired.   The   first   appellate   Court declared the original plaintiff as owner of the suit land along with constructions including 16 shops, a service station and boundary wall with samadhi in the land.

The appellate court order-

 The appeal is allowed and the judgment passed by the learned trial court is modified and the suit of the plaintiff is decreed. The plaintiff is declared owner of the land measuring 11 kanals 17 marlas composed in rectangle and killa no. 935/1/1/1 (5­19), 935/1/1/2 (5­18) situated in Mehlan Road,   Sangrur   along   with   construction   including   16 shops, a service station and boundary wall with samadh in the land.  In view of the peculiar circumstances of the case the parties are left to bear their own costs.  Decree sheet be prepared and copy of the judgment be placed on the   file   of   the   learned   trial   court   and   the   same   be returned   immediately   to   the   successor   court   of   Smt. 6 Harreet Kaur PCS, the then Civil Judge (Junior Division), Sangrur.    

 The   High   Court  set   aside   the conclusion recorded by the first appellate Court and opined that the document which, for the first time, creates a right in favour of plaintiff   in   an   immovable   property   in   which   he   has   no   preexisting right would require registration, being the mandate of law

Defendant’s contentions(represented by learned counsel Praveen kumar aggarwal)

Mohan singh and sohan singh has rightly contend that the High Court has rightly considered the document Exhibit P­6 as containing terms and recitals of family settlement and for which reason it was essential to get the same registered. It is urged that there was no pre existing title in favour of the plaintiff   in   respect   of   the   suit   property,   as   the   same   was purchased   in   the   name   of   concerned   defendant   by   way   of   a registered sale deed. defendants in the written statement that the suit property was jointly owned by Mohan Singh   (original   defendant   No.   1)   and   Sohan   Singh   (original defendant No. 2).  The contesting respondents have reiterated the stand that there was no family settlement in 1970, as stated by the   plaintiff   and   that   the   signature   of   the   defendant   No.   2 appearing   in   document   Exhibit   P­6   is   forged   and   fabricated. The high court restored the partial decree passed by the trial Court on the conclusion that the document Exhibit P­6 is inadmissible in evidence, as it has not been registered despite the transfer of title in immovable property worth more than Rs.100/­(substantial question of law answered).

Question of law involved?

Whether a person claiming the title by virtue of adverse possession can maintain a suit under Article 65 of limitation act for declaration of title and for a permanent injunction seeking the protection of his possession thereby restraining the defendant from interfering in the possession or for restoration of possession in case of illegal dispossession by a defendant whose title has been extinguished by virtue of the plaintiff remaining in the adverse possession or in case of dispossession by some other person?

The question of law was answered by the three judge bench in favour of the plaintiff. The plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff. 

Article 65 of limitation act prescribes a timeline of 12 years, within which an aggrieved person may file a suit for recovery of possession of immovable property or any interest therein based on proprietary title (i.e. title based on documents). After an uninterrupted 12 years of possession, the person is said to have perfected his title over the property by way of adverse possession provided he proves that his possession is peaceful, open and continuous. The limitation Act further says that in case no suit is filed within the timeline of 12 years as provided under Article 65, the person extinguishes his right to file a suit for recovery of possession. 

     Cases referred to-

  • Bhoop Singh vs. Ram Singh Major & Ors. 
  • Hans  Raj  &  Ors.   vs. Mukhtiar Singh  
  • Hari Shankar Singhania & Ors. vs. Gaur Hari Singhania & Ors.  
  • Jagdish   &   Ors.   vs.   Ram   Karan   &   Ors.

SC order restoring the order of the first appellate court.

The 3-judge bench of Arun Mishra, SA Nazeer and MR Shah, JJ has held that the Article 65 of Limitation Act, 1963 not only enables a person to set up a plea of adverse possession as a shield as a defendant but also allows a plaintiff to use it as a sword to protect the possession of immovable property or to recover it in case of dispossession. The Court held that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. It was opined that the High Court committed manifest error in interfering with and in particular reversing the well-considered decision of the first appellate Court, which had just concluded that the document executed between the parties was merely a memorandum of settlement, and it did not require registration. The order of the high court was set aside and the judgment and decree passed by the first appellate Court were restored in favour of the plaintiff (appellants). 

To Download the Judgment click hereDownload

CERTIFICATE COURSE ON INTRODUCTION TO CYBER LAW; REGISTER BY AUGUST 15 (BATCH LIMIT- 50 STUDENTS, ON A FIRST, COME FIRST SERVED BASIS)

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ABOUT LAWSCHOLE

From the beginning, Lawschole has been driven by the interests and involvement of our incredible and engaged law students. We are a great resource, offering opportunities for students to be active in a variety of topics and to engage with each other in an interesting and safe online environment. It is a forum where law students can share thoughts, seek opinions and advice, and learn something new from other members of the forum. We are a hub of various events including webinars, various competitions, capsule and Online Certification courses, Moot Court Competition Series- we call it “THE PRACS SERIES”, and blogs.

ABOUT THE CERTIFICATE COURSE ON INTRODUCTION TO CYBER LAW

The Certificate course on Introduction to Cyber Law consists of four (4) Modules, which shall be made accessible to the enrolled students from “My Courses” section from August 20 to September 19. The students must submit the “Assignment” which will be assigned on September 10 to be eligible for the issuance of the Certificate.

COURSE REVIEWER:

VIVEK KUMAR SINGH, ASSOCIATE LEGAL COUNSEL, LUCKNOW HIGH COURT.

COURSE STRUCTURE:

WEEK 1

MODULE-I: Introduction to Cyber Law 

a. History of the Internet and World Wide Web

b. Need for Cyber Law

​

WEEK 2

MODULE-II: Cyber Law in India

a. History of Cyber Law in India

b. Need for Cyber Law in India

c. Overview of Information Technology Act, 2000

d. Overview of Rules issued under the Information Technology Act, 2000

​

WEEK 3

MODULE-III: Cyber Crimes/ Frauds

a. Cyber Crimes

b. Cyber Frauds

c. Penalties and offences under the IT Act, 2000

d. Offences under other legislations

e. Regulatory Authorities

​

WEEK 4

MODULE-IV: Case Laws

​

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Legal Protection of Rights & Dignity of Elders – A Sine Qua Non

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This article is written by Siddhi P. Nagwekar, Karnataka State Law University’s Law School. This article discusses the legal framework related to the rights of elderly people in India.

INTRODUCTION

Caring for the elderly passes as one of the rudimentary roles a society must be held liable for. The idea of a nuclear family impacted the cycle resulting in an imbalance of the usual life of elderly people by getting the better of a thousand years old practice of India where parents are treated as a pious form of God. While most developed countries have codification and schemes in place to make sure that no senior citizens are deprived of their rights, a major part of the population of the country such as ours remains oblivious to them owing to low rates of literacy. While some of the core laws include the Elder law and the Maintenance and Welfare of Parents and Senior Citizens Act, there are sections further, of our constitution that safeguard the rights and interests of the elderly.  

1. Constitutional Safeguards

The right to work, right to education and the right to public assistance in certain cases: It is considered that the State shall, within the boundaries of economic capacity and development, make constructive provision for safeguarding the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. 

Promotion of educational and economic interests of weaker sections: It is given that the State shall promote with special care the educational and economic interests of the weaker sections of the people and shall safeguard them from social injustice and all sorts of exploitation.  

However, these provisions are included in Chapter IV i.e., Directive Principles of the Indian Constitution. The Directive Principles, as laid down in articles 36- 51, are not executory by any court of law. But Directive Principles impose positive obligations on the state, i.e.,  what it should do. The Directive Principles have been declared to be essential in the governance of the country and the state has as an implication to apply them in making laws. The courts, however, cannot impose a Directive Principle as it does not create any legitimate right in favour of any individual. It is most unfortunate that the state has not made even a single Act that is directly related to elderly persons.  

2. Legislative Protection

Safeguards under Personal Laws: The duty to maintain parents is righteous and is recognized by all people. However, so far as the law is concerned, the position and extent of such liability vary from community to community.  

  1. Protection under Hindu Laws: 

Part IX – Personal Law (Hindu), (Chapter III – Hindu Adoption and Maintenance Act, 1956) states that a Hindu is obliged during his or her life, to maintain his or her legitimate/illegitimate children and his or her aged or infirm parents.  The responsibility of a person to maintain his or her aged infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case is, is unable to maintain himself or herself out of his or her own earnings or others property. Therefore, amongst the Hindus, the binding on sons to maintain their aged parents, who were not able to maintain themselves out of their own earning and property, was recognized even in early texts. And this commitment was independent,  not qualified by a reference to the possession of the family property. It was a personal legal obligation enforceable by the sovereign or the state. The statutory provision for maintenance of parents under Hindu personal law is 23 Article 46 of the Constitution of India 24 Section 20(1) of Hindu Adoption and Maintenance Act, 1956 25 Section 20(3) of Hindu Adoption and Maintenance Act, 1956 contained in Sec 20 of the Hindu Adoption and Maintenance Act, 1956. This Act is the primary personal law statute in India, that imposes a binding on the children to maintain their parents. As is apparent from the framing of the section, the obligation to maintain parents is not limited to sons only, and daughters also equally have a duty towards parents. It is necessary to note that only such parents who find it financially unviable to maintain themselves from any source, are permitted to get maintenance under this Act. 

  1. Safeguards Under Muslim Law:

Children have a duty to maintain their aged parents even under Muslim law. According to Mulla:

(a) Children in undemanding situations are bound to maintain their poor parents, even though the latter may be able to earn something for themselves.

(b) A son in difficult conditions is obligated nevertheless to maintain his mother, if the mother is poor, irrespective of whether she is infirm.

(c) A son, who is poor, nonetheless, is earning something, is obligated to support his father who earns nothing. 

According to Tyabji, parents and grandparents in strained state of affairs are allowed, under Hanafi law, to maintain their children and grandchildren who have the avenues, notwithstanding their ability to earn their livelihood. Both sons and daughters have a duty to maintain their parents under Muslim law. The binding, however, depends on their having the means to do so. 

Protection Under Criminal Laws

1. Protection under the Code of Criminal Procedure 

Criminal Procedure Code, 1973 – Chapter IX: ‘Order for maintenance of wives, children and parents’: If any person having adequate means abandons or spurns to maintain his mother or father, incapable to maintain himself or herself, a Magistrate of the first class can, upon evidence of such abandonment or refusal, order that person to provide a monthly grant for the maintenance of his wife or such child, father or mother, at such monthly rate not going beyond five hundred rupees in the entirety, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. Section 125(3): If any person so ordered fails without adequate reason or cause to meet the order, any such Magistrate can, for every non-compliance of the order, issue a warrant for exacting the amount due in the approach provided for imposing fines, and may sentence that person, for the whole or any part of each month’s grant remaining unpaid after the enforcing the warrant, to imprisonment for a term which may extend to one month or until payment whatever is sooner. It can thus be said that prior to 1973, there was no provision for the maintenance of parents under the code. The Law Commission, however, was not in favour of making such provision. According to its report, the CrPC is not the right place for such a provision. There will be a significant difficulty in the sum of maintenance awarded to parents apportioning amongst the children in a summary proceeding of this type. It is prudent to leave this matter for a pronouncement by civil courts. The provision, nevertheless, was introduced for the first time in Sec. 125 of the Code of Criminal Procedure in 1973.  It is also necessary that the opposite party having ample means, abandoned or refused to maintain his, who is unable to maintain himself. 

 2. Government Protections

The Government of India, Ministry of Social Justice & Empowerment is the nodal Ministry responsible for the welfare of the Senior Citizens. It has declared about the National Policy on Older Persons encapsulating all doubts/worries pertaining to the welfare of older persons. The National Policy on Older Persons recognizes a person aged 60 years and above as a senior citizen. The Ministry is also implementing the following schemes for the benefit of Senior Citizens:

The Government of India approved the National Policy for Older Persons on January 13, 1999, to speed up the welfare measures and enable the elder people  in ways advantageous to them. This policy contained the following major points:

  1. Setting up a pension fund for ensuring security for those persons who have been serving in the unorganized sector,
  2. Construction of old age homes and day-care centres for every 3-4 districts,
  3. Establishing resource centres and re-employment bureaus for people above 60 years of age
  4. Making rail/airfares concessional for travel within and between cities, i.e., a 30% rebate on the train and 50% in Indian Airlines.
  5. Passing legislation to make sure that obligatory geriatric care in all the public hospitals is available. 
  6. The Ministry of Justice and Empowerment has declared the setting up of a National Council for Older Person, called AGE-WELL Foundation. It will seek the opinion of age on measures to make life easier for them. 
  7. Attempts to sensitize school children to live and work with the Old age. To set up around the clock helpline and discouraging social ostracism of the older persons are being taken up.
  8. The government policy promotes an immediate settlement of pension, provident fund (PF), gratuity, etc. in order to avoid further hardships. The policies consider elder sensitivity.

Conclusion

Elderly people carry a vast range of experiences of their personal and professional life, and society in general needs to utilize those experiences for a greater future. They can layout a key generational link for upcoming generations. It gives support and stability to families and society. Grandparents in joint families provide a critical link for transmitting values and morals to the younger generation in their early years, thus working towards raising sensible human beings and responsible citizens. Recognizing seniors’ contributions would aid in making ours a more age-inclusive society that doesn’t pit one generation against the other. Their profound cultural impressions and social experiences provide the essential buffer against intolerance, violence and hate crimes which gives stability in society especially in the age of hate and crime. They can play an important role in alleviating societal tensions, both within and outside families through their insights and understanding.

Social security is the simultaneous responsibility of the central and state governments, as mandated under the Indian constitution i.e., Well-being of senior citizens – Article 41 in particular and 46 in general of Indian constitution. In this aspect, the National Policy on Senior Citizen, 2011 was devised. For the welfare and care for the older persons, we must concentrate on the safeguarding of existing traditional social institutions/social support systems such as kinship and family, community bonding, community participation and neighbourhood bonding should certainly be revived. People in the family or those related should show more care and sensitivity towards elderly citizens. 

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