This article is written by Sharat Gopal, studying BA-LLB at Delhi Metropolitan Education, GGSIPU, Delhi. This article mentions about the importance of writs in Articles 32 and 226 of the constitution and between them.

Introduction

Before discussing the constitutional remedies also known as writs’, we must first familiarize ourselves with the fundamental rights guaranteed by the Constitution. Fundamental Rights as the term itself suggests are the ‘basic rights’ which are ensured to the citizens. These rights are deemed essential for the intellectual, moral and spiritual development of individuals and also to avoid tyrannical form and to grant special rights and protection of rights through various provisions. Merely mentioning provisions does no good, some type of constitutional remedies must be provided, this is when writs come into the picture. Whenever an individual’s basic rights are infringed by an administrative authority, constitutional writs come into the picture.

To protect the basic rights, the Indian Constitution, under Articles 32 and 226, provides the right to approach the Supreme Court or High Court, respectively, to any person whose Fundamental Right has been violated.

What is a writ?

Writs are the constitutional remedies available to the citizens of a nation when their fundamental rights are infringed. Writs are basically official orders issued by a court. Any warrant, orders, directions, and so on, issued by the supreme court and or the High court are called writs.

There are 5 types of writs, that are as follows-

Habeas Corpus– ‘Habeas Corpus” is a Latin word which means “to have the body”. If a person is detained unlawfully then any person from his behalf can file a writ of “Habeas Corpus” in High Court using article 226 and using article 32 in Supreme Court. The main purpose of this writ is to provide an immediate remedy to a person who has been detained without lawful justification. A lawful detention also becomes unlawful if the detained person is not presented before the magistrate within 24 hrs of his arrest.

By the adoption of the 42^nd amendment and with the judgement of Maneka Gandhi v. Union of India, the scope of Habeas Corpus was increased.

Mandamus– the term “Mandamus” means, “to order”. It is a writ which is issued in a superior court against a person or a public authority to do any act or forbid to do an act, which they are legally bounded to do so. The nature of duty must of public nature and not of private nature. The main purpose of this writ is to limit the powers of public authorities and make them work in their limited powers. There are various conditions for using this writ,-

There must be a legal right of the petitioner.
The legal duty must be imposed on an authority and the fulfilment of duty must be of importance in nature. The duty imposed must be statutory in nature which is either given by the constitution of India, or any law, but should not be of contractual in nature. If the authority abuses or exceeds the power given, then the writ of mandamus can be filed.
Writ of mandamus can only be issued in good faith and not for taking personal grudges.

Prohibition– the term prohibition means to “prohibit”. This writ is issued by the High Court or Supreme Court to lower courts or other quasi-judicial authorities to stop further proceeding of a matter which exceeds their jurisdiction. This writ is used to keep lower courts within their prescribed limits. Earlier this writ was only used on judicial and quasi-judicial bodies. But now it is used even on administrative bodies. The scope of this writ has been increased from the past.

Certiorari– the Writ of certiorari is similar to the writ of prohibition. Certiorari is available at a later stage and prohibition is available at an earlier stage. The writ of certiorari is issued by the Supreme Court or High Court to inferior court to quash the order already passed by a lower court. As it not only quash their order but also passes that matter to themself. Hence, it is not only preventive in nature but also curative in nature.

Quo-Warranto– the term “Quo- Warranto” means “by what warrant?” This writ is issued to refrain a person who is acting in a public office which he is not allowed to. It is used to prevent a person from illegally using a public office.

These are the 5 writs that can be issued in both the Supreme Court and High Courts.

Article 32

DR B R Ambedkar called article 32 as the “heart and soul of the constitution”. The reason behind calling Article-32 as “the heart and soul of the constitution” was, he believed that just by providing fundamental rights without proper machinery for their enforcement they will be a useless action. Article 32 guarantees that, if any person’s fundamental rights are infringed then he/she could approach the Supreme Court for remedy. This article provides a quick and immediate remedy for enforcement of fundamental rights. Using this article, any person could directly approach the Supreme Court for seeking remedy, without requiring undergoing through the dilatory procedure from lower to higher courts as in ordinary circumstances.

Article 226

Article 226 is very similar to article 32, as article 226 also talks about writs. Any person can approach the High Court using article 226, if their fundamental rights or any other right is being infringed. No doubt that the jurisdiction of the high court is very wide, as it can issue writ not only for the infringement of fundamental rights as by supreme court but also for enforcement of any other right as well. The only thing court needs to establish that the party had such right and which has been threatened or illegally invaded.

Difference between Article 32 and Article 226

Article-32	Article-226
Article-32 can only be used for enforcement of Fundamental Rights	Article-226 can be used for enforcement of Fundamental Rights and other purposes as well
Scope of Article-32 is lesser than Article-226	Scope of Article-226 is wider than Article-32
Article-32 is used for approaching Supreme Court	Article-226 is used for approaching High Court
The order passed by SC supersedes the order passed by the HC	The order passed by HC under article-226 has lesser power than order passed by the SC under Article-32
Article-32 is a Fundamental Right	Article-226 is not a Fundamental Right

Case Laws

In the case of Aditanar Educational Institution v. Assistant Director of Income-tax (297 I.T.R. 376), Madaras High Court held that relief under Article-226 of the constitution can be granted when there is no other remedy available under the statute and have undisputed facts. And when the High Court found that the disputes mentioned are disputed, it won’t be desirable to deal with those matters using writ petition.

In the case of Daryao v. State of U.P., it was held that to approach Supreme Court with Writ should not be merely considered as a right, instead, it should be considered as the Supreme Courts duty to protect the fundamental rights of people.

Conclusion

Article-32 of the constitution has very well been said as the heart and soul of the constitution. Till now it has been proved that these Writs mentioned in Article-32 and Article-226 to be filed before Supreme Court and High Court, respectively are the most effective remedy provided in constitution to protect the rights of the individuals.

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This post is written by Anushree Tadge, a 3rd-year law student of ILS Law College, Pune, she tries to briefly explain the Air (Prevention and Control of Pollution) Act, 1981.

Introduction

The Government passed the Air Prevention and Control of Pollution Act (1981) of India Act in 1981, extremely comprehensive legislation comprising more than fifty sections. It came into existence with the sole purpose of aiming to reduce the level of Pollution in our air quality. It paves way to set up State and Central boards that will help to carry out necessary steps in order to improve the air quality. Along with this it also constitutes provisions, to declare pollution control areas, to impose restrictions on certain industrial units, to limit emission of the air pollutants present, for inspection and taking samples, analysing the same, imposition of penalties, cognizance of offences etc.

Important Provisions

Now that we have understood that the primary aim of providing provisions in this Act is to abate and control the amount of air pollution in the country, and Boards at both State and Central levels are established to achieve this, we look at the most relevant provisions that every citizen should be aware of-

The Act is a compilation of 54 sections, and a total VII chapters. The chapters II and III give out the roles and responsibilities of the pollution control boards, Chapter IV is responsible for regulation of the pollution standards and how they can be monitored whereas Chapter VI lays out the penalties that could be imposed in cases of noncompliance of the Act.

Section 3 of the Act states that both the Central and State Pollution Control Boards shall have a collective responsibility to exercise the powers provided by virtue of this Act.

Section 4 states that, in states where there is a Water Pollution Control Board already established it will be ruled that this same Board shall also have the joint responsibility of controlling and monitoring the air pollution levels, and will be called the State Pollution Control Board. And for states where there is no Water Pollution Control Board, a new Board shall be established ( Section-5).

Section 16 and 17 state the duties and functions of the State as well as Central Board as incorporated under this Act. Whereas Section 19 states that the State Pollution Control Boards shall have the authority to declare any area as an air pollution control area, although with a condition that the same shall be with prior consultation from the Central Pollution Control Board.

Section 21 of the Act states that no person shall be allowed to establish an industry without the prior permission from the Boards ( State/ Central) in an area declared as- an air pollution control area.

Section 22 of the Act states no person or industry shall be allowed to emit air pollutants above the standards that are already set by the Pollution Control Boards. Non Compliance of this section can also give powers to the Board to approach court so as to gain a restraining order on the concerned industry (in case standards are not met with).

Section 26 and 28, both are responsible for effective lab testing. The former section gives power to any officer of the Pollution Control Boards to take samples from any chimney, duct, etc of a particular industry, so as to check whether the emissions are within the limits if prescribed standards. The latter section allows the State Pollution Control Boards to set up various State Air Laboratories ( these can be new establishments or existing labs). These labs shall only be authorised to test the air samples collected by designated officers and check the air quality. These labs will work for the State Pollution Control Boards.

The environmental legislation in India is a combination of the Air Act 1986 and the Water (Prevention and Control of Pollution) Act, 1974. The two Acts have many overlapping features. Both these acts remain important, but the Environment Protection Act, 1986, became the major environment governing act after it came into force.

The Air (Prevention and Control of Pollution) Act of 1981 and amendment, 1987

To implement the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June 1972, Parliament enacted the nationwide Air Act.

The main objectives of the Act are as follows

This Act aims primarily to preserve the natural resources of the Earth which among various other amazing things includes the protection and preservation of high quality of air and ensure that mankind doesn’t disturb the natural cycle by controlling the level of air pollution. The Act urges through its provisions the following most important points-

(a) To provide for the establishment of central and State Boards with a view to implement the Act.

(b) To provide for the prevention, control and abatement of air pollution.

(c) To confer on the Boards the powers to implement the provisions of the Act and assign to the Boards functions relating to pollution.

(d) To control the release of particulate matter, lead, carbon monoxide, sulphur dioxide, nitrogen oxide, volatile organic compounds more than the prescribed level by industry, vehicles, power plants, etc. so as to clean up our air by controlling pollution.

Powers and Functions of the Boards

Section 16 and 17 lay out the functions of the Central Pollution Control Board, some of which include-

Advising the respective State as well as the Central government on matters related to air and air pollution.
Advice and support both the State as well as Central Boards in carrying out the functions mandatory in the Act.
Carrying out research pertaining to the issues of air pollution.
Spreading awareness and information about air and air pollution by way of mass media and other communication modes.
Plan and organize the mandatory training of personnel required under this Act. (For this, States shall collaborate with Central Board)
Also, most importantly set out the standards for measuring optimum and ideal Air Quality in India as prescribed by the Act.
Carrying out proper inspections in the air pollution control areas at accurate necessary intervals.

Penalties

The Section 37 of the same Act law states that any kind of failure to comply with the rules prescribed in Section 21 and 22 will ultimately result in punishment for a minimum of one year and 6 months, subject to extension up to 6 years with fine. If the same offence is repeated and rules are not followed further, an additional fine of 25,000 rupees per day will be imposed till the time the offence is not continued. In case emissions are produced of air pollutants in excess than the standards laid down by the State Board then the persons responsible for the management of industry shall be penalized.

Further any person attempting or contravening any of the provisions of the Act/ order/ directions that are issued shall be punishable with imprisonment for a total term of three months or with a fine of Rs. 10,000 or both.

References-

http://nbaindia.org/uploaded/Biodiversityindia/Legal/23.%20Air%20(Prevention%20and%20control%20of%20Pollution)%20Act%201981.pdf

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This article has been written by Aaditya Kapoor, a law student of Vivekananda Institute of Professional Studies. Through his research, Aaditya has conjured a briefly detailed analysis on the process of partition and reunion of family.

Introduction

The construct of law is one that is ever-evolving, and that has been the case since the beginning of time. The necessity of an abstract governing entity has always been felt by man; with his understanding of that necessity changing and adapting to public interest with the passing of time. One of the focal points of evolution for the law came through customs and traditions that a group of people applied and chose to follow for a long time, turning mere practices into land-governing regulations. In the present scenario, most of the world has fabricated a codified rendition of law, but the customs and traditions of the past still hold importance in a number of ways.

India is a country that flaunts its rich heritage, the very crux of which was built upon the culture of its people and their free will in professing their own beliefs. In order to enforce a proper felicitation of customs and traditions, the Hindu Family Law has been established to lawfully administer family rites between Hindus. Ever since, this codified structure has been the enforcer for all Hindu Family Laws, including laws related to Re-Opening of Partition.

What is Partition?

In order to obtain insight into the process of re-opening of partition, it is vital to understand what the process of partition in itself entirely entails. A partition is a calculated division of family property amongst its members, thereby concluding the joint status of such family. Once the partition is successful, the particular family ceases to exist as a joint family and becomes a nuclear family. Through this process, various coparceners of property can attain their fixed shares as a coparcener.

The Mitakshara school of thought compares partition to be a severance of status or interest, amidst family. Mere division of property between coparceners does not amount to partition, but the complete severance of status of being a member of the joint family constitutes partition in its true sense. Furthermore, the process of partition can be administered in two methods:

Total Partition: Through this process, the family property in its entirety is divided in between all coparceners.
Partial Partition: The family may encounter a particular occurrence wherein only a few members of the joint family go out on partition while the others remain members of the family. In this case, the remaining members maintain joint status while those that leave get their share.

In order to satisfy prerequisites for either of the aforementioned processes, there is also a requirement of the fulfillment of two necessary conditions that give rise to partition. They are:

Intention to separate from the rest of the family within the minds of members or member.
External declaration of such intention to separate from the rest of the family. This declaration entails expressing the intention of partition vividly through verbal or written communication.

Re-Opening of Partition

Although, according to Hindu Law and as per the teachings of Manu, a partition once made stands to be irreversible and irrevocable. However, to cater to the public interest, certain exceptional situations have been allowed by law as cases under which an application to re-opening of partition can be applied.

Fraudulent Partition: There are grounds to re-open partition in case a coparcener has unfairly obtained an advantage in the distribution of property through exercising fraudulent behaviour upon other coparceners. Such behaviour may include misrepresenting worthless assets as those with value, or concealment of property by the person exercising said fraudulent behaviour. The affected coparcener in furtherance has a right to claim the reopening of partition thereby.

Person in the womb: Considering how the right to partition is retained by sons, grandsons and great-grandsons, in case a son has been conceived at the time of partition and born after, he too can claim his right to property as a coparcener. In case the family members attain knowledge of such pregnancy, the partition has to be delayed until his birth, or, his share to the property needs to be reserved. In hindsight, however, where no such reservation is made to the son in the womb, he can demand for re-opening of partition after birth through any external representation.

Existence of Adopted Son or Sons: Section 12 of Hindu Adoption and Maintenance Act, 1956 prescribes the right of adopted sons to be coparcener to property at the time of partition. Birth of biological son after adoption does not take away the right of an adopted son and therefore, in case he does not get his share of the property after partition, he can claim re-opening of partition through any representation.

Coparcener disqualified: In some cases, a coparcener is held un-entitled to his share at the time of participation due to certain disqualification of technical restraint, in which case, he can re-open partition once said disqualification ceases to exist upon him.

Absence of valid Coparcener: In case a coparcener holding right to share in the property is absent at the time of partition, and no share is allotted in his name, he too has a right to ensure re-opening of partition.

Coparcener in Minority: If, at the time of partition, a coparcener being a minor does not have his interests accounted for, he has the option of re-opening partition. There is no requirement for there to have been fraud, misrepresentation or undue influence for a minor coparcener to re-open partition, in case the partition itself is proven to be unfair to the minor’s interests and opposing his personal benefit.

Addition of Property after Partition: In case some property is mistakenly or deliberately left out, lost or seized at the time of partition, the partition can be re-opened in case such properties re-surface. However, it is not necessary to re-open partition for their distribution; in the sense that, if they can be viably distributed within coparceners without re-opening of partition, there is no necessity in disturbing the prior process.

Reunion

In furtherance of re-opening of partition comes the reunion of a family; a state in which the particular family members resume their status as a joint-family which had been lost after partition. A reunion is the only way in which the joint-status of family can be re-established amongst family members. However, only those members of the family that originally had joint status in the property are eligible to reunite with each other.

The primary prerequisite for administering reunion is the intention of parties to reunite in the estate as well as a common interest. That also entails that simply choosing to live under one roof without the intention of regaining joint status in property shall not constitute a valid reunion. It is also necessary that the communication is communicated vividly, with each separate coparcener giving individual consent to the reunion.

Once a family reunites, the foremost effect of such reunion is the resolution of reunited members to their prior status as members of a joint family under Hindu Law. In consequence, the property divided to each individual coparcener is also pulled back as a collective property of the joint family wherein the members also regain their status of undivided coparceners. A complete restoration of the family and its members along with their status is triggered by the reunion, so as to make sure that there is no legal difference within the family from before prior partition.

In hindsight, a reunion of parties is an occurrence of rarity and therefore, upon a pleading of reunion before a court, there is a grave need of proving that the family underwent partition in the first place, with evidence of the same necessarily being clear and consistent.

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ABOUT THE ORGANISER

Rayat College of Law, Railmajra(Affiliated to Panjab University, Chandigarh) under the guidance of Dr Monika Sharma(Principal-Rayat College of Law) are geared up to organize yet another illuminating and enriching virtual session for augmenting legal and practical knowledge of Mechanism of Alternative Dispute Resolution on the aspect of ” Mediation–A Progressive Path Towards Peaceful Society”

DATE & TIME

Sunday i.e. 7th June 2020 from 11:30 a.m to 1:00 p.m.

SPEAKERS

We’re pleased to announce that we have onboard with us Mr Amar Vivek,(Former Additional Advocate General Haryana Advocate and Mediator at Mediation & Conciliation Center, Punjab and Haryana High Court, Chandigarh) and Ms Monika Jalota (Deputy Advocate General, Punjab, Mediator at Mediation & Conciliation Center, Punjab and Haryana High Court and Potential Trainer Mediation and Conciliation Project Committee Honourable Supreme Court )

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The registration is free and also e-certificates would be provided to all the registered users and attendees.

Kindly fill the following registration form :-

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Pardeep Kumar v. Union Administration, Chandigarh, (2006) 10 SCC 608

FACTS OF THE CASE

The prosecutrix was a girl living in Chandigarh in House no 3359 sector 19D with her mother and brother. There were five accused in the present case namely Lalit Gupta, Ashok Kumar, Pardeep Kumar, Karam Chand and Inderjit Singh. Lalit Gupta was interested in the prosecutrix and used to pester the girl to get married to him. The incident took place on the fateful night of 2^nd February, 1987. The prosecutrix had gone to the market where she met with Lalit Gupta. Lalit told her that he wanted the girl to meet his cousins and his parents so that the marriage proposal could be finalized. He told her to accompany him to his cousin’s place which was located in sector 38 by an Auto rickshaw. She agreed to this and got into the rickshaw. On the way the rickshaw was stopped and another accused Ashok Kumar got into the rickshaw. They finally reached the destination and when they entered the house the third accused Inderjit Singh was present. The three accused drank liquor for a while and when the prosecutrix requested to leave, Inderjit Singh forced her to stay by threatening to kill her if she left. After this Lalit Gupta forced her to have sexual intercourse with him and when she refused, Inderjit threatened her again. Due to the nature and seriousness of the threats, the prosecutrix yielded and Lalit Gupta committed the act of rape on the prosecutrix. Following that even Ashok Kumar defiled the prosecutrix. After this incident had taken place Pardeep Kumar and Karam Chand came to the house. They also took advantage of the prosecutrix and raped her. After all this, the men went to the other room and start consuming liquor. Seeing this window of opportunity, the prosecutrix ran away from the house. On the way the prosecutrix saw some police personnel and narrated the whole incident to them. Upon receiving the alert, the personnel went to the house where the incident had taken place to arrest the accused. Upon entering the house, police arrested Pardeep Kumar and others while Ashok Kumar and Inderjit Singh managed to escape.

An FIR (First Information Report) was lodged on 3^rd February 1987 at 2.20 am against the accused. The prosecutrix was sent for a medical examination at 1.30 PM on 3^rd February 1987. The doctor who performed the examination opined that there were no external injuries on the prosecutrix’s body and she was used to having sexual intercourse.

The trial against the accused thus began and while the proceedings were on Ashok Kumar and Karam Chand died. The accused were convicted under section 376 of the Indian Penal Code dealing with punishment for rape. The accused appealed in the High court which upheld the decision of the lower court be because of two reasons:

The version of events as stated by the prosecutrix in her FIR which was supported by the statement made by constable Raghubir Singh who recorded this evidence from the prosecutrix when she fled from the home in sector 38.
The other reason was the arrest of the accused who had escaped the scene from their house done by CRPF jawans.
The high court also acquitted Inderjit Singh from the case due to lack of evidence against him.

Aggrieved by the judgement of the High court Pardeep Kumar appealed to the Supreme court of India for reversing the judgement thus acquitting him of the offence.

ISSUES OF THE CASE

There were two issues in the case dealt by the courts: –

Was there common intention between the accused to commit the act of rape?
Can Pardeep Kumar be punished under section 376 of the Indian Penal code even though he did not commit the act?

ARGUMENTS FROM THE APPELLANT SIDE

The appellant side stated the following to prove innocence of the accused in the crime:

During deposing of the prosecutrix she had clearly mentioned that only Karam Chand and Ashok Kumar had raped her, not anybody else. So, the question of the accused being punished under section 376 is out of question as he did not commit the act as per the statement of the prosecutrix.

ARGUMENTS FROM THE RESPONDENT SIDE

The respondent being represented by the state made the following submissions:

Though the accused may not have committed rape he was a spectator of the act and that made him liable under section 34 of the Indian Penal Code that refers to Common Intention. This provision in the following case means that the accused though didn’t commit offence but acted with the group in furtherance of common intention. Thus, the accused could also be held liable under section 376 (2) (g) of the Indian Penal Code which reads:

Whoever, commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.

COMMON INTENTION

The only bone of contention in the present case was that of common intention where the appellant side stated that due to no act committed, Pardeep Kumar wasn’t liable under section 476 of the Indian Penal Code while the respondent side stated that he was responsible due to the concept of common intention. There are certain pre-requisites of common intention:

That more than one person had acted in concert with the common intention to commit rape on the victim;
That more than one accused had acted in concert in the commission of the crime of rape with pre-arranged plan, prior meeting of mind and with element of participation in action. Common intention would be action in consort in pre-arranged plan or a plan formed suddenly at the time of commission of offence which is reflected by element of participation in action or by the proof of the fact of inaction when the action would be necessary. The prosecution would be required to prove pre-meeting of minds of accused persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence; and
That in furtherance of such common intention one or more persons of the group actually committed offence of rape on victim or victims.

In the following case due to the absence of direct evidence the police had to rely in circumstantial evidence which means evidence that appears from the circumstances of the case. In this case the prosecutrix before the court stated that all the five accused were present at home when she entered it and committed the act of rape on her. But in the FIR, she had clearly mentioned that Pardeep Kumar had entered the house after the act of rape was committed on her.

After the incident, the police nabbed the accused at a place near the home but that itself does not prove a pre-concocted plan by the accused to commit the act of rape. Moreover, in the course of the trial the prosecutrix could not prove that the appellant had common intention with the other accused to commit the act of rape.

In fact, in the case of Ashok Kumar v State of Haryana it has been stated that the provision of common intention embodies the principle of joint liability where if an act is committed by one, all are responsible provided there is a meeting of minds. In the present case no evidence was shown to prove that there was a prior meeting of minds. But common intention can also develop on the spot. But, in this case even that wasn’t possible because according to the FIR the appellant had entered with another person after happening of the event.

In the case of Priya Patel v State of MP the court held that the act of common intention must be done in furtherance of performing a criminal act and in this case, it relates to the intention to commit rape. But, in this case the respondents have not been able to prove meeting of minds to perform a criminal act. Thus, we can clearly deduce from the following that there was no common intention between the appellant and the other accused to commit the act of rape.

RAPE

The second question before the court was whether the appellant had committed the offence of rape. The prosecutrix in her deposition had clearly stated that the act of rape had only been committed by Karam Chand and Ashok Kumar. Later when the case went to the Supreme court the prosecutrix clearly stated in open court that the accused had not defiled her and even his conduct in furtherance of common intention could not been proven. Hence, the court held that the act of rape also had not been committed by the appellant.

DECISION OF THE COURT

The court ruled in favor of the appellant due to the following reasons:

The case laid down by the prosecutrix could not prove the act of rape committed by the accused not could it hold him liable under the principle of common intention.
The prosecutrix kept changing her story as the case passed through. During registering the case she stated that all the accused had committed rape on her. When the case went to a higher court, she stated that only two people committed rape on her. In the FIR she said that the accused was not there when the incident took place but in court, she stated that when she entered the home the accused was there with all five men.
The prosecutrix had stated that the accused were consuming liquor but when the police caught them there was no sign of alcohol on them and the prosecutrix did not submit a medical report proving that the accused were drunk.
Due to all these reasons the prosecutrix could not instill confidence in the courts and hence the accused was acquitted in the present case.

CASE LAWS OF COMMON INTENTION IN INDIA

The question to be answered before we move on to the cases is “why is common intention so important that if one person is pronounced guilty, all of them are guilty?” The answer to this question lies in the fact that people who have common intention support, promote and motivate the other person to carry out an offence and many a time justify to the person that what he is doing is correct. Its mostly like abetting the offence and helping the person commit a crime. There have been some landmark judgements in the field of common intention:

In the case of Amrik Singh v State of Punjab the court held that common intention may develop while a fight is going on but this needs to be proven beyond reasonable doubt by the prosecutrix. If we take the same example in our case, the prosecutrix claimed that the accused was present when the crime took place and is thus responsible under common intention. Assuming this theory to be true also, they did not prove the element of common intention as there was no record of any prior discussion or any act done by the accused which seemed as concocted by the group and hence it is the responsibility of the prosecutrix to prove that the intention developed during performance of the act.
Even in the case of Pandurang v State of Hyderabad the court spoke about instant common intention developing during performance of the crime. The same reasoning applies to case because the prosecutrix could not show even a single piece of evidence which proved the accused guilty of common intention.
The landmark case on spur of the moment common intention is that of Mahboob Shah v Emperor where the lordships held that there was no common intention and they should be treated as separate acts from each other. In the same way under this case there was no relevance between the rape on the prosecutrix and the entry of accused. Hence the court rightly separated the two because there was no point of common intention in the case discussed.
In another landmark case of Barendra Kumar Ghosh v King Emperor the court held that “criminal acts mean the unity of criminal behaviour which results in something for which an individual would be responsible, if it were done all by himself would be a criminal offence.” In the case we are dealing with there was no criminal behaviour portrayed by the accused. The accused in the present case was a witness to the crime but did not commit the crime and did not have common intention with the perpetrators hence as per this definition the accused will not be liable.
We come to a case which resembles the case discussed very closely. In the present case the court convicted the accused to imprisonment for life. The accused appealed to the Supreme court stating that he was a friend of the people convicted and happened to visit their home during the offence. He neither had common intention to commit the offence neither did he participate in the offence. In the same way even in our case the accused was merely present at the scene and did not commit any offence hence he wasn’t held responsible and was convicted of the crime. He was also convicted due to the absence of common intention between the parties.

CRITICAL OVERVIEW OF JUDGEMENT

The judgement of the High Court in the present case should come into question. The High court in the present case passed a judgement against the accused only relying upon the statement of the prosecutrix and the investigating officer. This is somewhere a questionable move as in the cases of circumstantial evidence, circumstances must be dealt with by the courts. In the present case the court did not deal with the circumstances or did not observe how the statements were changed by the prosecutrix in her FIR and in court.
Also, one of the key points the High court missed was the fact that earlier when the FIR was lodged the prosecutrix had claimed all persons involved to have committed rape but when she was asked in court, she only claimed that two people had committed the offence. This itself should have been used by the High court to quash the judgement because this proves that the prosecutrix is not to be trusted or is giving a false claim in court which amounts to perjury under the Indian Penal Code.
Another point where actions of the High court are questionable is in regards to acquittal of Inderjit Singh. It is a proven fact that when the prosecutrix asked to leave because she couldn’t see Lalit’s parents, Inderjit threatened to kill her if she left. This clearly amounts to criminal intimidation under section 503 of the Indian Penal Code. Thus, Inderjit should have been punished under section 506 of the Indian Penal Code for seven years under the offence of criminal intimidation.

SUGGESTIONS

When a person is accused of rape his stature in society is reduced to a bare minimum and he isn’t given respect in any field due to the tag of a rapist. No one is interested to know whether he is guilty or not but call him a rapist throughout his life even though he may be acquitted of the crime. Thus, under criminal law if somebody puts forward a honest petition and is truly aggrieved by the matter, the court takes cognizance of the same and takes action against the accused. But if the court comes to a conclusion that the suit instituted was to merely take the court’s precious time and was more related to nuisance for the other party the person instituting such a suit in any criminal offence must be punished. This will be beneficial as this will lead to deterrence in the society as lesser number of people will institute bogus suits but more than that the weight on the shoulder of the judiciary regarding pending cases will reduce and more people will find access to justice.

The Indian penal code can also assume levels of joint liability as per the US law. For certain offences the liability must be of a higher grade and for other offences the liability can be uniform as it is today. Another suggested change which can help the judiciary in dealing with rape cases is changing the mindset of people. For ex: – holding educational programs for men in villages or cities explaining to them what rape is or what is the punishment for such an act because many times when people actually commit the act, they don’t know what they are doing. In fact, in the Nirbhaya case the accused when being questioned said they didn’t know what they were doing and were unaware about the concept of rape.

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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 Mitakshara and Dayabhaga schools of law along with differences between the two.

Introduction

In our country, family law does not vary from one state to the other. Every community is governed by one single system of law. But even in this single system of law, people can be governed by a different set of rules due to various factors, the most prominent among them is local custom. In the domains of Hindu law, which are codified there is a uniform law for all Hindus. But under the uncodified areas of Hindu law, there can be some variations due to various interpretation with reference to local customs. The schools of Hindu law have relevance only in those uncodified areas of Hindu law. The schools of Hindu law have some regional connotation while it is not so in the case of Muslim law, it is as per sect. There are two main schools of Hindu law:

The Mitakshara school
The Dayabhaga school

These schools have widened the horizons of Hindu law and contributed a lot in its development.

Cause of evolution of two schools

Hinduism is one of the oldest religion in the world. It is based on ancient scriptures, smritis’ and shrutis’. Repeatedly various scholars have tried to interpret the provisions within it. The interpretation of these sources of Hindu law with reference to customs and usages gave rise to different views. So, different thoughts emerged which resulted in the formation of different Schools of thought, namely Mitakshara and Dayabhaga.

In Rutcheputty v. Rajendra, the privy council observed that different schools of Hindu law have originated because of different local customs prevailing in different parts of India.

Mitakshara and Dayabhaga school

Mitakshara school

The Mitakshara is based on the running commentaries on the Yajnavalkya Smriti written by Vijneshwara The Mitakshara school is applicable in the whole of India except Bengal and Assam. It prevails even in Bengal and Assam on all those matters on which the Dayabhaga is silent. The Mitakshara is not merely based on a single commentary, but is also a digest of practically all the leading smritis, and deals with all the titles of Hindu law. There are four sub-schools of Mitakshara

Benares school – This sub-school prevails in the whole of Northern India except in rural Punjab where its authority has been considerably modified by customary law. The main authorities of the school are Virmitrodaya and the Nimaya Sindhu.
Mithila school – The Mithila school functions in Tirhut and certain districts of Northern Bihar. The main authorities under this are: the Vivada Chintamani and the Vivada Ratnakara.
Bombay school – The Bombay school extends to Western India including the whole of the Presidency of Bihar as well as Berar. The main authorities under this school are: the Vyavahara Mayukha, the Virmitrodaya and the Nimaya-Sindhu.
Madras school – The Dravida or Madras school prevails in Southern India including the whole of the old Presidency of Madras. The principle authorities are the Smriti Chandrika, the Parashara Madhaviya, the Saraswati vilasa and the Vyavahara Nimaya.

The four sub-schools of Mitakshara attach to the same fundamental principles of the Mitakshara, though in some matters of detail they differs from Mitakshara and among themselves. There were some differences among the sub-schools on secession and adoption. These differences have now been removed by the Hindu Succession Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956.

Dayabhaga School

The Dayabhaga school is based on Jimutavahana’s digest on leading smritis by the name of “Dayabhaga”. The Dayabhaga school prevails in only Bengal and Assam. But on all those matters on which Dayabhaga is silent, are regulated by Mitakshara. The Dayabhaga is a digest on leading smritis, and deals only with partition and inheritance.

Difference between Mitakshara and Dayabhaga

The differences between the two schools of law are in the following respects:

Rule of Succession

The Mitakshara school based its law of inheritance on the principle of propinquity ( nearness of blood relation or community of blood). It means that the person who is nearer in blood relation succeeds.
Dayabhaga school based its law of succession on the principle of religious efficacy or spiritual benefit. It means one who confers a more religious benefit on the deceased is entitled to inheritance in preference to the others who confer less spiritual benefit. The religious benefit is based on the doctrine of an offering of oblations or pind-dan to the deceased.

In the modern Hindu law, the difference between the two main schools no longer exists. Under the Hindu Succession Act, 1956 we have a single uniform law of succession for all Hindus of all school or sub-schools.

Coparcenary/ Co-ownership

In the Mitakshara School, all the members of the joint family enjoy Coparcenary status during the father’s lifetime. While in Dayabhaga school, Coparcenary does not exist, it’s only upon the death of the father, the family members have an option to enter into Coparcenary
Under the Mitakshara school, the coparcener’s share is not defined. So it can’t be disposed of. While in the Dayabhaga school the share of each coparcener is defined and it can be disposed of also.

Concept of Joint family

The Mitakshara propounds the doctrine of son’s (i.e., son, son’s son and son’s son’s son) by birth in the joint family property. Under the Mitakshara school right to ancestral property arises by birth. So under this school, the moment a son is born in a joint family, he acquires an interest in the joint family property which, by partition, can be, at any time converted into separate property. So under this system each son on his birth acquires an equal interest with his father in the joint family property.
Under the Dayabhaga school, the doctrine of son’s birthright and the devolution of property by survivorship do not find any place. Under this school, son’s have no right by birth in any property, all properties devolve by inheritance. The right to ancestral property in Dayabhaga is only given after the death of the last owner. Till the lifetime of the father, he is the master of all properties whether ancestral or self-acquired.

From the concept of joint family property under the Mitakshara school we can understand that there is a notion of a community of interest and unity of possession in the Mitakshara. So this means, before partition no individual coparcener can say that he owns some particular share in the joint family property. Under this school, the interest of each coparcener is a fluctuating interest.
But under the Dayabhaga school, coparceners have specified shares in the joint family property so their interest don’t fluctuate on birth or death.

Under the Mitakshara school, the son attains the right to become the co-owner of the property. He can demand his share and ask for the partition of the ancestral property even against his father. But in Dayabhaga school, son has no right to ask for partition against his father.
Under the Mitakshara school, neither the father nor any other coparcener can ordinarily alienate the joint family property. Under the Dayabhaga school, there is no such restriction. Each coparcener has full right of alienation which they can exercise through the Karta.

The codified Hindu law doesn’t affect the joint family system of Hindus and therefore both the schools with there differences still operate.

Persons entitled to partition

Under the Dayabhaga school every adult coparcener, whether male or female can enforce a partition of the coparcenary property. Under the Mitakshara before 2005 amendment of Hindu Succession Act, a female couldn’t be a coparcener so she was not entitled to partition. But after the amendment, a female can also be coparcener.

Under the Mitakshara school, the wife can’t demand partition but she has the right to a share in any partition, which took place between her husband and her sons. Under the Dayabhaga school, this right doesn’t exist for the women because the sons can’t demand partition as the father is the absolute owner.

Conclusion

The Mitakshara school seems to favour the male child of the family as initially, only males could be coparcener. The Mitakshara school had a conservative approach. The Dayabhaga school, on the other hand, took a more liberal approach, as it recognised the rights of the female also to the joint ownership. The major difference between the schools of thoughts are in their opinions towards joint family system in relation to properties. The enforcement of Hindu secession Act 1956 and the Hindu Succession (Amendment) Act, 2005 have brought many changes. The new provision has wide-sweeping ramifications on the Hindu Joint family.

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This article is written by Nikhilesh Koundinya, a student of Symbiosis Law School, Pune.

INTRODUCTION

“I want to know the name of some people affected with COVID-19” was a statement made by an individual in the Madras high court recently. The court stated that it couldn’t reveal the names of the people affected because it is bound to cause social stigma. This article talks about the provisions and penalties that may be imposed on an individual if he reveals the names of COVID patients.

COVID as a disease saw in origin the country of China in the month of November. But the world only realized the magnitude of the problem in early February when the disease started affecting a large chunk of the world population and slowly started spreading its wings in the Indian sub-continent which led to deaths and a 14-day quarantine period. The Indian government responded well to the problem by coming up with the lockdown initiative where the country went into a shutdown mode for a considerable amount of time to avoid human contact and fight against the disease. The lockdown mode also aimed to decrease the spread of the disease while efforts were being made by the world community to come up with a vaccine. Due to the increase in the number of deaths people started fearing the person who had the disease. Now there is a huge difference between being afraid of the disease and being afraid of the patient. Hence there were many instances played on social media where owners of an apartment were telling their doctor tenant to move out because he was treating COVID patients or people who had recovered completely or were in the process were told to move out because they were polluting the environment.

STATES TAKE ACTION

This is where certain states felt that some change was needed because the aim was to attack the disease and not the infected patient. The first state to come out with such a ruling was the state of Odisha ON March 21^st. The chief minister of the state stated that no individual is supposed to reveal the names of patients who have been infected with the disease. This is leading to a social boycott of the individual and the family which is a matter of grave concern. There were other states like Uttar Pradesh and Maharashtra which followed suit. The other side of the story was that many organizations and agencies stated that if they knew the person’s name, they could make quick identification on who was affected by the disease and could administer treatment and medication at the earliest. But the government had already come up with the Arogya Setu app which people could download on their phone and it helped the government to identify spots and places where a spike in temperatures etc. could be observed.

LEGAL PROVISIONS INVOLVED

The states that imposed this rule also warned the media about not revealing the names of patients who are down with the disease. Now the question that arises is how can you restrain media or any person from doing such an act as if there is no legal backing, such an act would amount to curbing the right to free speech which is the fundamental right of every citizen and is enshrined in the constitution. Thus, there was a need to resurrect a century-old law known as the Epidemic Diseases Act, 1897. Section 2 of the act states that:

When at any time the (state government) is satisfied that the state or any part thereof is visited by or threatened with an outbreak of any dangerous epidemic disease, the state may take or require or empower any person to take such measures and by public notice prescribe such temporary regulations to be observed by the public or persons or class of persons.

This explains to us the legal validity of imposing restriction could be taken in the presence of the epidemic. This is also important to reduce the social stigma that society has against people or families were individuals may be infected with COVID-19.

CENTRAL GOVERNMENT EFFORTS

The central government seeing the problem of social stigma also issued a notification carrying guidelines which was published by the Press Information Bureau (PIB) on 8^th April 2020. The guidelines addressed the social stigma people are facing and it further enunciated the need to separate the disease from the person. under the table of do’s and don’ts the following point appeared:

Do not spread the names of people or reveal their identity or locality they reside in on social media. This was an effort by the government to reduce the social stigma prevalent in society. the guidelines also spoke about the fact that healthcare professionals or people providing essential services must not be stigmatized in society.

On basis of this social stigma point there was a case instituted in the Madras High court named K.Narayanan v Govt. of Tamil Nadu. The petitioner wanted to know the name of certain patients who were related to him for personal reasons but the court stated that due to the guidelines passed by the central government in consonance with the PIB they were not at liberty to reveal the names of the patients.

Now due to revealing the names of people and due to the stigma in society it leads to, many people who may potentially be infected may not get themselves treated because they may get evicted from their property or their friends may stop talking or communicating with them. Thus, as a society, we must make all the efforts to make patients feel comfortable.

It has also been said under the current scenario that anybody who reveals the name of patients which has been specifically prohibited by the Epidemic Diseases act will be punished under section 3 of the act which relates to punishment under section 188 of the Indian Penal Code. The section reads:

Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

This essentially means that if a person reveals the name or opposes to anything the state or central government states he can be imprisoned.

PROBLEM WITH EXISTING PROVISION

The problem that exists right now is that the whole ambit of imprisoning someone is generally given in the act but there is no mention of specific situations which may attract punishment and are bound to cause much more deterrence to people. Thus in the light of this, there should be separate offences for:

Revealing the names of patients
Evicting doctors or essential service workers from rented homes
Violating guidelines prepared for COVID- 19

If there are separate offences for all these we will definitely be leading to a society where no one is scared of coming out and admitting to having the disease. As it has been beautifully put forward by the government:

“CORONA VIRUS DOESN’T DISCRIMINATE, WHY SHOULD WE?”

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This article has been authored by Ritesha Das of symbiosis Law School Hyderabad. It aims to cover the dimensions of the Lokpal and Lokayukta Act of 2013.

Introduction

The foundation of the nation has been obliterated by the clouds of corruption, maladministration and malversation. Though several anti-corruption Agencies have been set up in India but the lack of independence hinders the combat against corruption and other malpractices. Being a consultative body without efficacious powers to cope with the malpractices, the advice of these agencies are seldom followed. Not only this, but also the persistence of issues of internal transparency and accountability has crashed the anti-graft of anti-corruption agencies. Furthermore, the oversight of these entities does not have an efficient and unambiguous mechanism. In this regard, the autonomous institution Lokpal and Lokayukta ‘s was a pioneering development in the history of the Indian political culture that gave a solution to the persistent challenge of corruption. It is a strong and efficient means of combating corruption at all government levels.

The Lokpal & Lokayuktas Act of 2013, commonly called the Lokpal Act is an Indian Parliament anti-corruption act in India which ‘seeks to create Lokpal’s institution to investigate an accusation of corruption against some key government officials, including the prime ministers, cabinet ministers, parliamentarians and related matters. The Act stipulates that Lokpal for Union and Lokayukta for States must be established. The bill was introduced in Lok Sabha on 22 December 2011 and passed as the ‘Lokpal and Lokayuktas Bill’, 2011 by the House on 27 December. It was subsequently submitted to the Rajya Sabha on 29 December. After a marathon debate that lasted until midnight on the following day, the vote did not take place due to lack of time. On 21 May 2012, it was referred to the Rajya Sabha Select Committee for consideration. It was passed in the Rajya Sabha on 17 December 2013 after making a number of amendments to the earlier bill and to the Lok Sabha on the following day. It was approved by President Pranab Mukherjee on 1 January 2014 and brought into effect on 16 January 2014.

Background

The idea of the Constitutional Ombudsman was Minister for Legal Affairs Ashok Kumar Sen first pitched the idea of constitutional ombudsman and the terms ‘Lokpal’ and ‘Lokayukta’ were stamped by Dr L. M. Singhvi. In 1966, the First Administrative Reform Commission proposed the creation, at central and state levels, of two independent bodies to investigate grievances against public officials, including members of parliament. A bill was passed in Lok Sabha but was expired after the Lok Sabha had dissolved. Eight efforts to pass the bill were made till 2011 but all of them went in vain. In 2011, the government established a meeting with the Group of Ministers, headed by Pranab Mukherjee, to recommend steps for tackling corruption and consider the Lokpal Bill proposal. The anti-corruption movement led by Anna Hazare pressurized the United Progressive Alliance (UPA) government at the Centre which culminated in the passing of the Lokpal and Lokayuktas Bill, 2013, in both the Houses of Parliament. On 1 January 2014, it was approved by the President and came into effect on 16 January 2014.

Composition of Lokpal

Lokpal is a multi-member body consisting of a chairperson and a maximum of 8 members. The Chairperson of Lokpal should be either the former Chief Justice of India or the former Supreme Court Judge, or a distinguished person of untarnished reputation and outstanding capacity, having at least 25 years of professional experience and skills in matters of anti-corruption regulation, public administration, security, finance, including insurance and banking, law and management. The tenure in office of the Chairman and Members of Lokpal shall be 5 years or up to the age of 70 years.

For the members, 50% will be members of the judiciary. The judicial member of the Lokpal is either a former Judge of Supreme Court or former Chief Justice of the High Court. The non-Judicial member should be an eminent person of high integrity and exceptional in the sphere of financial security, which includes insurance and banking, law and governance, possessing at least 25 years of specialized knowledge and expertise in matters of anti-corruption policy.

In addition, not less than 50% of the members should be members of SCs, STs, OBCs, minorities and women. Members of the search committee shall be subject to the same regulations.

The appointment processes for the members and the chairperson shall be the same. The Search Committee shall prepare a panel of applicants, and the selection committee shall propose names from the panels. Finally, the President appoints them as members on the recommendation of a Selection Committee. The selection committee is composed of the Prime Minister who is the Chairperson; Speaker of Lok Sabha, Leader of Opposition in Lok Sabha, Chief Justice of India or a Judge nominated by him/her and One eminent jurist. The same procedure shall apply to other members as for a judge of the Supreme Court.

The Lokpal will begin to develop its different wings after the selection of its members. It will have an inquiry wing headed by the inquiry director for investigating the offences of a public servant punishable under the Corruption Prevention Act of 1988. It will also compose ‘Prosecution Wing’, headed by the Director of Prosecution for prosecuting public servants in respect to any complaint by the Lokpal under this Act. Once the members are appointed, the process for appointments of Secretary, Director of Inquiry and Director of Prosecution and other officers and staff of the Lokpal will begin.

Jurisdiction of Lokpal

The Jurisdiction of Lokpal encompasses:

Prime Minister, except in the cases of accusations or allegations of corruption pertaining to Foreign relations; Security; public order; and Atomic energy and space.
Other ministers.
Parliamentary members with an exception in the cases of speeches given in Parliament or for a vote cast in the House.
Officers of the group A, B, C and D and also the officials of Central Government.

The jurisdiction of Lok Pal also covers:

An individual who is or has been in charge of the body or society established by the act of central government.
A body funded or managed by a central government;
A person involved in the action of colluding with a crime
Involvement in bribery.

Powers of Lokpal

The Lokpal also has powers to confiscate assets, proceeds, receipts and benefits arising from or procured by corrupt practices in special circumstances.
It has the power to recommend or terminate officials in response to accusations of corruption.
The Lokpal and Lokayukta Act states that all public authorities must provide the assets and liabilities of them and their respective dependents.
It also has the authority to monitor and direct the CBI. If Lokpal has linked any case to CBI, the investigating officer is not to be transferred to the case without the prior approval of Lokpal.
The power of a civil court is conferred on the Lokpal Inquiry Wing.
The Lokpal has the authority to offer instructions to avoid the loss of records during the preliminary inquiry.

Function of Lokayukta

Review and investigation into the citizen’s allegations and complaints of deprivation, injustice and misery caused by maladministration.
Investigation of allegations of abuse of authority, misconduct or loss of integrity against public officials. Any additional role defined by the Governor through a notice in relation to grievance settlement and corruption eradication.
Supervision of the inquiry of anti-corruption agencies, authorities and offers.
Investigation, in any proceeding not referred to in the Act, into anything found therein, if ordered by the Governor.

The Lokayukta and Uplokayukta shall submit to the governor yearly a combined report on the progress of their duties under the Act. In the case of Prof. S.N. Hegde vs the Lokayukta Bangalore and others, a critical issue emerged as to the jurisdiction of Lokayukta under the Bangalore Lokayukta Act. The High Court held that if the Lokayukta had to consider and investigate a lawsuit against a public official other than Chief Minister. A minister, or a secretary, or a member of the state legislature, has no other authority unless it is bestowed upon him by notice by the government of the state. The Lokayukta has no authority to investigate a lawsuit against the Vice-Chancellor according to the terms of the Act. Such jurisdiction is clearly prohibited in the light of Section 14 of the Law on Universities so that Lokayukta does not have jurisdiction under the notification to investigate complaints against them.

Limtations of Lokpal and Lokayukta Act, 2013

The Lokpal institution tried to reform the administrative system of India in the combating corruption, but at the same time, there are gaps and loopholes that have to be fixed.
There have been seven years since Parliament passed the Lokpal and Lokayuktas Act 2013, although no Lokpal has been designated till date reflecting a lack of political will.
Lokpal is not exempted from political interference since the appointing committee itself consists of leaders and members of the political parties.
The appointment of Lokpal can be abused in such a way that there are no criteria for determining ‘a person of integrity or eminent jurist’.
The 2013 act failed to give the whistleblowers concrete immunity. Unless the accused is proven innocent, the clause that an investigation be launched against him would only deter people from protesting.
The biggest gap is the exemption of the judiciary from the purview of Lokpal.
No constitutional support is granted to Lokpal and there is no appropriate provision to challenge the Lokpal.
The need for the functional independence of the CBI has been addressed to a certain extent by a change brought by this Act in the selection process of its Director.
No complaint against corruption can be recorded after a period of seven years from the alleged date of committing the offence.

Conclusion and Suggestions

The Lokpal and Lokayukta Act have been a milestone development for Indian politics and a successful means of combating the ever-ending problem of corruption.

The Lokpal institution has sought to make a necessary change in the combating corruption in India’s administrative structure, but the call for the remedy of loopholes and shortfalls cant be ignored. The greatest gap is the exclusion of the judicial system from the Lokpal. The Lokpal has no constitutional support and there is no appropriate provision to challenge the Lokpal.

The appointment of Lokpal on its own is not enough. The government should resolve problems on the grounds of which the people seeking a Lokpal. Simply adding to the strength of investigative agencies will boost the size of the government, but not actually help in improving governance. The government’s motto of “less government and more governance” should be supported in true spirit. In addition, Lokpal and Lokayukta must be financially, administratively and legally independent of those who are called upon to investigate and prosecute. Appointments to Lokpal and Lokayukta must be made transparently in order to reduce the possibility of the wrong kind of people joining. A multiplicity of decentralized institutions with appropriate accountability mechanisms is needed to avoid the concentration of too much power in any single institution or authority.

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This post is written by Anushree Tadge, a 3rd-year law student of ILS Law College, Pune, she tries to explain briefly how same-sex marriages have evolved, how the institution of marriage anciently embedded in religious texts have been affected and what is the legal status of the same in India as well as other countries.

Introduction

Quite what it’s literal meaning implies, the term ‘Same-sex marriage’ refers to the practice of marriage between two individuals of the same gender- two men or two women. Same-Sex marriages have been widely debated topic and they have been regulated not just through the law, but also religion, customs etc., responses have also ranged widely, right from celebrating the bond shared between two individuals, irrespective of gender to shaming and criminalizing such individuals.

The late 20th century witnessed a period where general public’s attitude towards homosexuality and laws regulating homosexual behaviours were liberalized to a great extent, like never before, particularly in countries of western Europe and the United States.

By the early 21st century, the issue of same-sex marriage actually came into light and on, several jurisdictions (local, national and international) same-sex marriages were legalised as well as sanctioned. The scope of such laws has been extremely wide and the same act of ‘marriage as an institution’ irrespective of gender has been impacted upon. People have praised as well as criticised it as a social issue in the early 21st century. Cultural diversity and the middle class of every country affected largely the regulations that affected such customs. Till date, same-sex intimacy is considered as an unseemly topic for discussion of any sort in any place.

Same-Sex Marriage And Religion

Over time historical and traditional cultures have emerged for wide acceptance of marriages that are ‘common and natural’. Almost all the world religions at some points in their histories have opposed the concept of same-sex marriage, homosexuality has been considered as against natural law and is even considered immoral; only the marriage of one man and a woman was considered valid. But by the early 21st century, religions like Judaism, Christianity, Hinduism, and Buddhism deliberated on this issue with multiple opinions. Orthodox segment of the all these religions opposed same-sex marriage, while the Reform, traditions allowed for it. Christian conservatives opposed the concept of same-sex marriages, while the United Church of Christ, took a positive stand and upheld Christian individual autonomy. Universal Fellowship of Metropolitan Community Churches fully accepted same-sex marriage. Hinduism has widely criticised the idea of homosexuality for the longest time. Buddhism being liberal from the very beginning, viewed all marriage irrespective of any criteria as a choice between the two individuals involved in the relationship.

A concern of the above-mentioned point has been beautifully expressed by Cathy Renna, the news media director for the Gay and Lesbian Alliance Against Defamation (GLAAD), working in New York City, She says that “My hope is that this reflects a deeper understanding of the distinction between the civil and religious components of marriage — and that while all [religious] denominations should have the freedom to choose whether or not to recognize same-sex relationships, we should all have access to all of the legal rights and protections mixed-gender couples do.”[i]

Same-Sex Marriage and its place in Legislations

Societies have shown very wide and mix responses regarding the views on morality, desirability, and administration along with legislations when it came to the topic of same-sex marriages. However, since this topic has ever been discussed, by the beginning of the early 21st century leaders of most of the countries, around the globe have opted for one of these three legal resolutions to controversial problems like homosexual marriages

to ignore the very concept of same-sex partnerships,
to criminalize them and consider people who practice it as criminals,
grant them a similar status like any other marriage.

Majorly societies have traditionally chosen to ignore the long-debated issue of same-sex marriage. This is practised on the most local till the apex level, the taboo of considering and even treating same-sex intimacy as a subject that is not suitable for discussion. Jurisdictions around the globe actively criminalize the concept of same-sex relationships, marriages and unions, many have also put forth contentions like homosexuality and lesbianism are mental disorders that are picked up by individuals. Same-sex desire is considered a psychiatric illness, and so the scope of same-sex intimacy and same-sex marriage was transferred from the ambit of civil regulations to that of public safety hence, in the domain of criminal law. Hence, making such relationships and identities to remain in the ‘closet’ and not on the open front. This also implies such activities to be hidden.

Same-sex marriage in India

Same-sex marriages are a step further to the acceptance of individuals by the society identifying themselves as gay or lesbians. In a country like India with groups like Brahmo Samaj, it is a very difficult task to radically change the mindset of people towards such concepts. Once the issues of homosexuality were not considered worthy of even discussing but now people are broadening their horizons of mindsets and with that, a need for legislating same-sex marriages is observed. Homosexuality was recently decriminalised and movies like Shubh Mangal Savdhan starring Ayushman Khurrana were popularly watched to show acceptance of natural identification of the person of being gay/lesbian. Although same-sex marriages are still not deliberated upon and people are being pro-active in that regard.

Same-sex marriage and the world

Same-sex marriages are considered legitimate in countries like Argentina, Australia, Belgium, Canada, Denmark, France, Germany, Iceland etc between the years mainly 2010 and 2017. Other than that legal status of same-sex marriages in countries like Italy, Chile, United Kingdom etc. is civil union while others like Czech Republic, Germany, Greece, Hungary and Switzerland observe it as a registered partnership.

Conclusion

We live in the world’s largest democracy and yet a freedom so important- the freedom to express one’s intimacy, sexual desire is considered not important and not valued enough. Restricting the allowance of same-sex marriages won’t benefit people at large but legalising it would pave way for the pursuit of happiness of so many homosexuals. Concepts like Human Rights are heavily linked with the issues of same-sex marriages. People are the most aware they have ever been about their rights and freedom. And on top of this, if we are living the lives in the 21st century and being in love with a same-sex person is regarded as a crime, are we actually living the land of free?

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This article is written by PRANIT BHAGAT pursuing B.A LLB from ILS Law College, Pune. In this article, he has discussed Same-Sex Marriage and its impact on the Institution of Marriage in India and around the world.

INTRODUCTION

Same-sex marriage can be defined as the practice of marriage between two men or two women. Basically, it is the marriage between individuals of the same gender. Same-sex marriages are being regulated through law, religion, and customs in the majority of countries around the world but the legal and social responsibility of the same has varied from celebration on one hand to criminalization on the other. Some scholars argued that same-sex unions were recognized by the Roman Catholic Church in medieval Europe, although others have disputed to this claim. Scholars and the general public have become interested in this issue during the late 20th century, a period where attitudes toward homosexuality and laws regulating homosexual behaviour were liberalized, particularly in Western Europe and the United States. This issue of same-sex marriage sparked the emotional and political clashes between supporters and their opponents frequently but during the early 21st century, several jurisdictions have legalized same-sex marriages both at the national and sub-national levels. While in other jurisdictions, Constitutional measures have been adopted to prevent same-sex marriages from being sanctioned, or laws were enacted that refused to recognize any such marriages being performed elsewhere. The same acts were evaluated differently by various groups indicating its importance as a social issue in the early 21st century. It has also demonstrated the extent to which cultural diversity persisted both within and among countries.

Cultural Ideals of Marriage and Sexual Partnership

The Swiss legal historian Johann Jakob Bachofen (1861) and the American ethnologist Lewis Henry Morgan (1871) analyzed the earliest systematic of marriage and kinship. An enormous variety of marriages and sexual customs across different cultures were documented by such scholars by the mid-20th century. Notably, It was found that almost all cultures expressed an ideal form of marriage and an ideal set of marriage partners but are practicing flexibility in the application of those ideals. The most common forms of documented are

• Common-law marriages

• Morganatic marriages: Titles and property are not passed to the children.

• Exchange marriage: A sister and a brother from one family marry a brother and a sister from another; and

• Group marriages based on polygyny (co-wives) or polyandry (co-husbands).

Ideal matches for marriages are those between cross-cousins, between parallel cousins, to a group of sisters (in polygyny) or brothers (in polyandry), or between different age sets. There is an exchange of some form of surety in various cultures such as bride service, bridewealth, or dowry and is considered a traditional part of the marriage contract. Cultures that openly accept homosexuality are generally of non-marital categories of partnership in which bonds could be expressed and socially regulated. Other cultures have denied the existence of same-sex intimacy or at least deemed it an unseemly topic for discussion of any sort.

Same-Sex Marriage and the Law

Various Societies have resolved the twirl issues of sexuality, reproduction, and marriage in multiple ways. Also, the responses regarding morality, desirability, and administrative perquisites of same-sex partnerships have been equally diverse. By the beginning of the 21st century, most of the countries decided to opt for one of only three legally available resolutions to these problems-

• Ignore same-sex partnerships,

• Criminalize them

• Grant them a similar or equal status like that of heterosexual marriage.

Many countries are yet to reach a consensus on these issues. Unfortunately, a lot of societies chose to ignore the problem of same-sex marriages by treating their intimacy as a subject unsuitable for discussion. The jurisdictions of many countries actively criminalize same-sex unions and consider homosexuality and lesbianism as mental disorders. In such societies, the possibility of arrest or institutionalization further reinforced taboos on same-sex intimacy and discussions thereof, typically driving such activities underground. However, the biologically-based theories for the cause of sexual orientation are favoured by most experts, who point to genetic factors, the early uterine environment, or both combinations, biological research has shown that it is an example of a normal and natural variation in human sexuality, and is not in the control of an individual.

Homosexuality in India

In India, homosexuality has been a taboo for a very long time. Marriages are considered to be a holy sacrament by Hindus and consider same-sex attraction and intimacy to be immoral and inappropriate. Most of the marriages are seen from a religious angle where gay marriages are believed to be unholy and against God himself. Many Indians presume this concept of same-sex unions has been brought by the Western countries and it is their influence leading to this rise in the country. However, homosexuality is not a concept devised by the West, as many who oppose this notion belief. References of homosexuality can be found in our ancient literature and scriptures, which reflect that the concept was prevalent in our society since ancient times. Many historical shreds of evidence of literature show that homosexuality has always been prevalent across the Indian subcontinent since ancient times.

Section 377 of the Indian Penal Code, 1860

This section was introduced in India during the British rule which criminalized sexual activities against the order of nature. Consensual homosexual activities are also criminalized under this section. However, In the case of Naz Foundation v. Government of NCT of Delhi, a landmark judgment was passed by the Delhi High Court decriminalizing homosexual intercourse between consenting adults. This section was adjudged to violate the fundamental right to life and liberty and the right to equality as guaranteed by the Constitution of India. The petitioner filed a lawsuit in the Delhi High Court for granting legislation of homosexual intercourse between consenting adults. However, The Court refused to entertain their petition as it said the petitioner had no locus standi in the matter. On further appeal to the Supreme Court, the SC held that Naz Foundation had the locus standi to file a Public Interest Litigation in this matter, and the case was sent back to the Delhi High Court. An affidavit stating that the enforcement of Section 377 violates LGBT rights was filled by the National AIDS Control Organisation in 2006. A Delhi-based coalition of LGBT, women’s and human rights activists called “Voices against 377” had significant intervention in this case for supporting the demand to at least read down section 377 to exclude adult consensual sex from its purview. On 2 July 2009, a bench comprising of Chief Justice Ajit Prakash Shah and Justice S. Muralidhar held that Section 377 of the Indian Penal Code was in violation of the fundamental right to dignity and privacy within the right to life and personal liberty guaranteed by Article 21 of the Indian Constitution. Also, the Court also held that Section 377 was against Article 14 and 15 of the Constitution, as it discriminated against homosexuals and created a class, discriminating against them on the basis of sex. The Court held that the word ‘sex’ in Article 15 not only includes biological sex but also the sexual orientation of a person. The Court also observed that the right to life under Article 21 includes the right to health, and concluded that Section 377 is an impediment to public health because it hinders HIV-prevention efforts. This judgment saw many gay parades and festivals in the city, rejoicing and celebrating the Delhi High Court decision. The judgment can be seen as a pioneering step in advocating the rights of homosexuals.

Marriage under different personal laws in India

Citizens of our country have a choice to get married under their various personal laws, or through a common law of civil marriage. While none of the acts have explicitly defined marriage as a union between a man and a woman, it has been interpreted and understood to mean that a marriage is always between a man and a woman. Words like ‘bride and bridegroom’, ‘husband and wife’ imply that the laws are valid only for couples of the opposite sex. The Hindu Marriage Act, 1955, is applicable for Hindus, Sikhs, Jains, and Buddhists. Section 5 of this Act says that a marriage may be solemnized between any two Hindus if the bridegroom has completed the age of twenty- one year and the bride the age of eighteen years at the time of the marriage. Also, Section 60 of the Indian Christian Marriage Act, 1872, says that the age of man intending to get married should not be under twenty- one year, and the age of the woman intending to get married should not be under eighteen years. Thus, both these legislations have heterosexist underpinnings. In the case of Muslims, they are governed by Islamic Law itself, rather than any codified law of the Parliament. As per Islamic law, marriage is a contract, and the purpose of marriage is to legalize sexual relations between a man and a woman, for the procreation of children. Marriages between individuals from different religions and castes are allowed under The Special Marriage Act, 1954. Thus, India does not have any legislation that legalizes same-sex marriages. However, a major step towards changing the perception of same-sex unions in India was made through Delhi High Court’s landmark judgment in Naz Foundation v. Government of NCT of Delhi.

Same-Sex relationships in India and around the world

The Netherlands was the first country in the world to legalize same-sex marriages, way back in 2001. Such unions got legal recognition in Belgium and Spain in 2003 and 2005, respectively. Canada legalized same-sex unions in 2005, South Africa in 2006, and Norway in 2009. Portugal, Iceland, and Mexico legalized gay marriages in 2010, and since 2012, Denmark and Caribbean Netherlands gave it the legal nod. Since 2013, New Zealand, France, Brazil, and Uruguay have also legalized same-sex unions. In India, same-sex marriages have not been legalized, however, few celebrities have entered into same-sex civil partnerships. Writer Vikram Seth has openly admitted the truth about his sexual orientation, calling himself gay. Prince Manvendra Kumar Singh Gohil, from the royal family of the former princely state of Rajpipla in India, is the only known person of royal lineage in modern India to have publicly revealed that he is gay.

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