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What is Jeopardy and Double Jeopardy?

In simple terms, jeopardy means the danger of any loss, harm or failure. In legal terms, jeopardy refers to the risk associated with the trial of a person to be convicted for any crime.

Double jeopardy is an instance in which a person is prosecuted and exposed to the risk of conviction for the same offence twice. This means that a person is put through the trial of an offence he has already been prosecuted for.

Section 300 of the CrPC

Section 300 of the Criminal Procedure Code states that a person who has been prosecuted and convicted or acquitted cannot be put through a trial for the same offence again. It has provided the following provisions:

A person who has already been acquitted or convicted once and until the time till when such acquittal or conviction is valid or in force shall not be tried for the same offence for which he has been convicted or acquitted.
It is possible for a person to be tried again for the same offence for a different charge made under Section 220(1) if the consent of the relevant State government has been taken.
A person already prosecuted for an offence may be put through a trial again if new facts which were not within the scope of knowledge of the court at the time of prosecution which constitute a new offence emerge.
A person may be prosecuted for the same offence again by the emergence of new facts which at the time of such prosecution, the courts were not competent to hold a trial for such offence.
A person who has been discharged from an offence or the proceedings under Section 258 cannot be tried for the same offence. There is however an exception, according to which a person can be tried if the court which has discharged that person has given its consent or by the consent of any superior court.
Dismissal or discharge does not amount to acquittal for the purpose of this section.

Now that it is clear that a person cannot be tried for the same offence twice except in some special circumstances, we shall now look at a few cases supporting this.

The case of Vijaylakshmi v. Vasudevan was a case of bigamy in which two separate cases were filed against the accused by 2 different people for the same offence. It was held that in such a case where a person has already been tried and convicted by a complainant, who is authorized to do so, they by the provisions mentioned in Section 300 cannot be tried and punished for the same offence again, even if the complainants are different.

In State of Rajasthan v. Bhagwan Das Agarwal, three separate charge sheets were filed in three separate courts against three respondents. Thus the courts took cognizance of these offences. Respondent-1 approached the court and filed a petition with the prayer that since two separate courts had already taken cognizance of the offence, continuing the proceedings would be illegal. The court held that the nature and manner of the offences committed by the courts are not the same and are different. Thus the accused may be tried for that offence even if they have already been tried and convicted for a previous offence.

Article 20(2) of the Constitution

Article 20 of the constitution provides protection in respect of conviction for offences. Article 20(2) states that no person shall be prosecuted and punished for the same offence twice. Thus a person who has already been prosecuted for committing an offence cannot be prosecuted for that offence again.

There is, however, an exception to this provision for protection from double jeopardy. The exception states that the defence of double jeopardy cannot be invoked wherein the trial was discharged or dismissed due to some reason and the accused wasn’t convicted or acquitted. Some cases where this exception has been highlighted are as follows:

In Nanjappa v. State of Karnataka, it was held that a bar for a second conviction cannot operate as a bar for a second or even third proper sanction. What this means is that if due to some reason there wasn’t a proper sanction for a case, it is legally permissible and not violative of Article 20 to hold a second trial. This is due to the reason that Article 20 operates as a bar against double conviction and since the accused was neither convicted nor acquitted, they can be tried again, this time properly.

Similarly, in State of Mizoram v. C. Sangnghina, the accused was discharged even before the trial had started as there was a lack of proper sanction. As discussed above, in order to invoke the defence of double jeopardy, the accused must be properly tried in court and be either convicted or acquitted. Moreover, such conviction or acquittal must be in force at the time of the second case. As the accused was not tried due to lack of proper sanction, it was held that the defence of double jeopardy could not be invoked in this case.

In Jitendra Panchal v. Narcotics Control Bureau, the question before the court was pertaining to the applicability of the doctrine of double jeopardy of the provision of Article 20(2) of the Constitution. It was held that the offences for which the accused being tried in India, and the offences for which he has been punished/convicted in the USA are completely different, and thus the defence of double jeopardy cannot be invoked.

Conclusion

From the above discussion, we can conclude that there are 2 specific legal provisions that protect criminals from “double jeopardy” or “double conviction”. These being Article 20(2) of the constitution and Section 300 of the Criminal Procedure Code. In both the provisions, it is clear from their proper interpretation that a person who has been either acquitted or convicted for an offence, cannot be tried for that same offence again. Both of these provisions are subject to certain exceptions.

The article is written by Om Gupta, a first-year law student pursuing BBA-LLB from the University School of Law and Legal Studies.

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INTRODUCTION

The fifth-generation mobile network is referred to as 5G. 5G is a brand-new global technology that enables users to connect with whomever and whatever they want. It is a global wireless standard that outperforms technologies such as 1G, 2G, 3G, and 4G. It has a faster speed than before. It will, for example, allow for the downloading of data that would otherwise take hours on the current network. The primary goal of the 5G network is to allow users to use more devices at a faster rate than previously possible.5G is for the benefit of the next generation, but it also has certain negative health and environmental consequences.

Impact of 5G Radiation on Environment

It is now alleged that the 5G network will result in a massive increase in energy consumption. We are all aware that 5G is more energy-efficient from a technological standpoint, but what are the effects of this network? I’ll go over the following effects of the 5G network.

Positive Impact –

This network has several environmental advantages; it can reduce energy usage and emissions, which is good for the environment.

According to several research, 5G utilises less electricity to transport data than other networks. For example, 1 kWh of electricity can download 300 high definition movies over a 4G network, but 1 kWh can download 5000 ultra-high definition movies over a 5G network. Saving energy entails a reduction in greenhouse gas emissions. According to a study conducted by Erickson, a leading provider of information and communication technologies, the Internet of Things will reduce carbon emissions by 15% by 2030.

Negative Impact –

Climate change is currently one of our society’s and economy’s most significant challenges. As we all know, as consumers around the world migrate to 5G phones for higher technology, many older phones and devices will be discarded. If there are no plans in place to buy them back or recycle them, the result will be dangerous because it will result in massive amounts of e-waste, which is already a major problem for us.

Ecosystems may be disrupted by the introduction and use of 5G technology. According to a study conducted by Punjab University, birds exposed to cell tower radiation for five to thirty minutes produced eggs that were deformed. Birds’ nesting, breeding, and roosting have all been disrupted in many other nations as a result of cell tower radiation. Wireless frequencies were also discovered to interfere with the navigational systems and circadian rhythms of birds, affecting their migration.There is some evidence that the radiation coming from the 5G network is very harmful to the environment as well as for the public health.

Juhi Chawla Case

Actress Juhi Chawla filed a civil suit in the Delhi high court on May 31, 2021, challenging the country’s installation of the 5G network. Juhi Chawla, an Indian film actress and environmental activist, recently made headlines when she launched a lawsuit against the 5G rollout.

On May 31^st, the actor–turned–environmentalist filed a lawsuit in which she asserted that radiation is exceedingly hazardous and destructive to people’s health, as well as to animals, flora, and wildlife. She stated in that statement that she is not opposed to technological innovation, but that its application should be delayed until it has been confirmed safe.

Following that, she was mocked on social media for the same reason. In response to all of the Memes, she posted a video titled ‘hum tum aur 5G,’ in which she stated sarcastically that she is actually very impressed by the way people connect things and is also impressed by the creativity, and when asked why she is doing so, she stated that she has been raising concerns about increasing radiation for years and that it is in fact very harmful. She is also attempting to raise awareness about this issue.

In her opinion, radio waves are becoming more powerful as new generations emerge, going from 2g to 3g, 3g to 4g, and now 5g, all of which can be quite hazardous. In that Instagram video, she also mentioned sharing the hearing link, which later became a source of concern for her. It was a huge mistake on her behalf, because court proceedings are considered private in the eyes of the law, and they aren’t made public until the court gives suitable directives. She afterward expressed her gratitude to everyone for their help.

The case was shifted to another bench by Justice C Hari Shankar, who heard the case on June 2^nd, 2021. For the hearing of this case, a bench led by Justice J R Midha was convened. The suit was labeled a media PR stunt by the court.

Juhi Chawla, along with two other plaintiffs, Veeresh Malik and Teena Vachani, has been fined Rs 20 lakh for abusing the legal system. A fan entered the meeting and began singing a song from Juhi’s movie despite Midha’s repeated warnings. After being removed from the meeting, he returned several times and sang various songs from Juhi’s movie.

Instead of initiating a claim in the High Judge, the court said she should have gone to the central government and, if the central government denied their right, they should have gone to the court. After hearing the views of several parties, the Delhi high court decided to put the case on hold for the time being. Her plea was dismissed by the court as a publicity stunt.

‘Radiation will increase rapidly from 4G to 5G.’ The actress–environmentalist’s concern about radiation is really valid.

CONCLUSION

We can see that the 5G network has both positive as well as negative impacts on the environment. It was recommended that measures should be taken to protect humanity and the environment keeping in mind that technology can’t affect the lives of human beings.

The article is written by Kiran Israni, 2^nd Year Law Student of Baba Saheb Ambedkar College of Law, Nagpur.

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SWETCHA LEGAL ASSOCIATES, SLA is first new law firm to be established in the sunrise state of the country, Andhra Pradesh with its registered office located at Vijayawada. SLA focuses on the specific needs of clients and work dedicatedly to provide them with best legal solutions.

The Managing Partner, Mr. Raviteja Padiri has a legal background with about 10 years of experience as an Advocate. A unique combination of legal counsel and arbitrator for several businesses. He has transactional legal experience in 7 countries and has been regularly practicing at High Court of Judicature at Hyderabad and Supreme Court of India. He also worked extensively in litigation on behalf victims of micro finance institutions which indulged in illegal arbitrary procedures. Defended and worked for enactment of A.P Micro Finance Institutions (Regulation of Money Lending ) Act. Later on he was inducted as Special Standing Counsel for Society For Elimination of Rural Poverty, Government of Andhra Pradesh in 2012 and is continuing till date. He is also Standing Counsel for Visakhapatnam Port Trust.

Salary would be at par with market payments.

A copy of the resume may be sent on swetcha@live.in

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Stripe is a global technology company that builds infrastructure for online commerce. Our mission is to increase the GDP of the internet. We handle billions in transactions each year and enable millions of users around the world to scale faster and more efficiently by building their businesses on Stripe. Stripe provides tools that make it easier for businesses and entrepreneurs all over the world to grow. We work on some of the hardest technical, commercial, and regulatory problems around, and we’re looking for a regulatory lawyer to join our amazing APAC Legal team in India as Regulatory Counsel for India. In this role you will work with talented people throughout the company, and will deal with a diverse set of matters that straddle financial services, business processes, and technology.

The ideal candidate is passionate about Stripe’s mission of helping businesses grow and thrive. We’re looking for someone who is a team player and willing to jump in on tasks of any size. Experience in technology, payments and financial services, and prior experience engaging with the Financial Services Commission, is strongly preferred.

Stripe is both a technology company and a financial services company, and you will need to be comfortable straddling both of those worlds every day. The right person for the role will enjoy solving that puzzle, seeking creative solutions and moving quickly, often in the face of ambiguity.

In this role you will:

Develop and execute regulatory strategy, including engaging with key regulators
Support the partnerships team in developing relationships with key financial partners and structuring partnership arrangements
Counsel the Stripe product and business teams on a range of issues in India, including payments and financial regulatory frameworks, market expansion, consumer protection, internet regulations, data protection and other legal matters
Serve as the main point of contact for all regulatory and legal matters in India
Draft and implement policies, procedures, processes, systems, governance and internal controls for a regulatory compliance program, to ensure licensing commitments and legal conditions are met
Actively collaborate with a wide variety of teams at Stripe, including product, engineering, partnerships, compliance, and marketing, on a range of issues related to market expansion, regulatory compliance, product development and commercialization
Help build scalable and effective processes for legal review and launch of products in India
Manage outside counsel in India to ensure timely and knowledgeable support of critical matters
Participate as a proactive business partner to senior managers and build a trusted advisor relationship.

To be considered for this role, you must have:

A law degree
Native level local language fluency and excellent English proficiency
A minimum of 10 years combined relevant experience in a top law firm, government agency, and/or in-house legal team, preferably working on the legal and regulatory matters in the financial services space
A passion for technology and ability to understand complex business models and product use cases quickly
Strong communication (both written and verbal)
Experience working on cross-border matters and working across different cultures
Excellent project management skills, attention to detail, and ability to work under tight deadlines
Excellent judgment, ability to navigate ambiguity and evolving regulatory spaces, and provide practical, solutions-oriented legal advice
Be humble, curious about an evolving industry, and have a terrific sense of humor

Company Description

Twitter is what’s happening and what people are talking about right now. For us, life’s not about a job, it’s about purpose. We believe real change starts with the public conversation occurring globally. At Twitter, your voice matters. Come as you are and together we’ll do what’s right (not what’s easy) to serve the public conversation.

The Position

You will be responsible for coordination with the law enforcement and government agencies in India to oversee the process of responding to reports, orders, and complaints, guided at all times by our mission to defend and respect the voices of the people who use our service in India. You will be the primary link for coordination between Twitter and these agencies on all legal requests relating to Twitter’s platform, including requests for content removal and user data disclosure.

This is a full-time role located in India. You must be a resident of India. This role is part of the Legal team within Twitter Inc., and will report to the company’s headquarters in San Francisco. You will collaborate closely with colleagues from allied teams (including Legal, Public Policy and Trust & Safety, Communications), providing your own subject-matter expertise, and seeking the expertise of others when needed. You must therefore be comfortable collaborating with colleagues from a wide variety of teams and backgrounds, and managing internal and external stakeholders effectively, all while advocating vigorously for Twitter and the people who use our service in India.

This position is ideal for a mid-to-senior-career professional with prior experience interfacing with the public or government officials on issues of national importance.

Primary responsibilities will include:

Overlooking established processes to review and respond to legal orders from law enforcement/government agencies in India to comply with removal obligations and information requests in a timely manner.
Liaising between Twitter and law enforcement/government agencies on all kinds of legal requests received from various law enforcement organizations and government agencies relating to the Twitter platform.
Potentially communicating Twitter Inc.’s interest and position at meetings, both routine and ad hoc, with law enforcement/government agencies on all types of legal requests, including but not limited to requests for content removal under s.69A of the IT Act and requests for user information
Working closely with Legal, Trust & Safety, Public Policy, in relation to law enforcement requests.
Educating government agencies on Twitter’s Terms of Service, Twitter Rules, and policies, and effectively educating government agencies on using Twitter’s tools and processes to report violations and make legal requests.
Supporting Twitter and our employees during emergencies.

Qualifications

Qualifications:

You are a mid-to-senior-career professional (minimum 6 years’ relevant work experience) with extensive experience coordinating with members of the public or government agencies on matters of national importance. Relevant experiences could include direct government agency or law enforcement experience, prosecution, criminal investigation, and/or experience in a similar Internet/Tech safety and security role.
Familiarity with the Indian legal system, and in particular, knowledge of, and experience with, laws relating to the takedown of content from online platforms (e.g. s.69A, IT Act and related rules) and the disclosure of user data by online platforms (e.g. s.91, CrPC), among other relevant laws.
Experience with reviewing, processing and summarizing legal documents (e.g. court orders, statutory notices, search warrants, etc.) and/or user complaints.
Good public speaking and presentation skills.
Fluency in both English and Hindi is a must. Fluency in another Indian language is an advantage.
Ability and willingness to work off hours, including weekends and holidays. Since the role involves liaising with law enforcement agencies, you will be expected to attend to questions, communications all days of a week including weekends and holidays
Ability to travel (if required) within India (subject to prevailing COVID travel guidelines and restrictions)
Experience working in the private sector or with a major multinational company is strongly preferred.
Must be a resident of India.

We are committed to an inclusive and diverse Twitter. Twitter is an equal opportunity employer. We do not discriminate based on race, color, ethnicity, ancestry, national origin, religion, sex, gender, gender identity, gender expression, sexual orientation, age, disability, veteran status, genetic information, marital status or any legally protected status.

The Assistant Counsel is an entry-level position responsible for providing full leadership and direction to a team of employees in an effort to manage and direct day-to-day legal activities in coordination with the Legal team. The overall objective of this role is to provide legal support, advice and guidance across a broad range of practice areas.

Responsibilities

Allocate and supervise daily work flow for small team of clerical/support employees
Provide operative support on internal legal processes
Assist external attorneys with routine operative needs in conjunction with Citi’s applications and legal issues
Manage and maintain the document file area according to document preservation and retention laws
Appropriately assess risk when business decisions are made, demonstrating particular consideration for the firm’s reputation and safeguarding Citigroup, its clients and assets, by driving compliance with applicable laws, rules and regulations, adhering to Policy, applying sound ethical judgment regarding personal behavior, conduct and business practices, and escalating, managing and reporting control issues with transparency, as well as effectively supervise the activity of others and create accountability with those who fail to maintain these standards.

Qualifications:

Previous relevant experience preferred
Banking/financial industry experience
Comprehensive knowledge of local, state and federal laws and practices
Consistently demonstrate clear and concise written and verbal communication
Proven analytical and organizational skills

Education:

Bachelor’s degree/University degree or equivalent experience

Link to Apply

https://jobs.citi.com/job/-/-/287/10236810256

About Locobuzz

Locobuzz is a SaaS platform that converges with technologies such as Artificial Intelligence, Machine Learning, Big Data Analytics and Automation, to provide brands with a 360-degree Customer Experience Management Suite. Locobuzz’s powerful analytics algorithms have helped seasoned brands establish a strong foothold in the digital hemisphere and transformed their customer experience journeys.

Visit our website www.locobuzz.com for more information on our CX management products and services.

Job description

1. Good experience in drafting shareholder agreements, share subscription agreements, cap sheets, vendor agreements, franchise agreements etc.

2. Well versed with company law

3. Filing trademark, copyright design applications in India and Abroad

4. Conduct legal due diligence, review documentation, advise on transaction structure, review & ensure compliance on all transactions

Requirements

Minimum Qualification: LLB

Experience: minimum 2 years experience in Corporates

Expert in Legal Documentation, Vetting Contracts

Sound knowledge of Labour Laws

CS will be a added advantage

Should posses good spoken and written English.

Should be well versed with labour law

Interested candidates can email the cv – hr@locobuzz.com

Employment Type

Full-time

INTRODUCTION

The Constitution of India, which is the world’s longest written Constitution, contains more or less all the notions which are relevant in representing the aims of India as a developing nation. However, there are certain concepts that have not been incorporated in the Constitution but are in practice. Constitutional Morality is one such principle.

Meaning of Constitutional Morality

Constitutional morality can be defined as acting in accordance with the principles enshrined in the Constitution to maintain the rule of law in a democracy. Right to freedom, rule of law, freedom of choice, equality, due process of law and freedom of expression are some of the main elements of constitutional morality. However, it is to be noted that the term “constitutional morality” has not been expressly used in the Constitution.

The main sources of origin of constitutional morality are:

The debates and deliberations that took place in the Constituent Assembly during the framing of the Constitution.
The provisions given in the Constitution such as the Preamble, the Fundamental Duties, the Directive Principles of State Policy, etc.
The precedents derived from various cases.
The events that occurred when the Constitution was being framed.

The History of Constitutional Morality

Grote, a 19^th century British historian, had given one of the first definitions of constitutional morality. According to him, it meant utmost devotion and compliance towards the principles of the Constitution. In India, the concept of constitutional morality was mentioned for the first time by Dr Ambedkar during his speech about the draft of the Constitution. He stated that the provisions for the administration of the government were incorporated in the Constitution instead of being framed by the legislature because India lacked constitutional morality.

In Ambedkar’s opinion, constitutional morality meant effective cooperation between the citizens and the administration for resolving any conflict of interests without any confrontation.

However, post-1950, the doctrine of constitutional morality was rarely used. It was mentioned in passing in the case of Kesavananda Bharati v. State of Kerala when the Apex Court gave the doctrine of Basic Structure of the Constitution. Later on, in SP Gupta v. Union of India, also known as the first judge’s case, the term was again mentioned. In this case, it was stated that infringement of any convention, which is a constitutional practice but not a part of any legislation or even enforceable by the courts, should be regarded as a violation of constitutional morality.

Again, in NCT Delhi v. Union of India, the Court observed that constitutional morality means strict adherence to the constitutional principles. It also stated that the existence of a Constitution itself assured that both the citizens as well as the State will be bound by constitutional principles.

Recent Developments

Some of the recent landmark cases wherein the doctrine of constitutional morality was applied are:-

Navtej Singh Johar v. Union of India:- In this case Section 377 of the Indian Penal Code was partially struck down by the Supreme Court thereby decriminalising homosexuality. Former CJI Dipak Misra observed that instead of being influenced by popular opinion, the Court should follow the principles of constitutional morality, whose main aim is to make the society more inclusive. Moreover, while pointing out the difference between constitutional morality and public morality, Justice DY Chandrachud stated that the ideal of justice always prevails. In other words, constitutional morality outweighs public morality. The right to privacy, liberty and dignity were some of the grounds based on which the case was decided.
Joseph Shine v. Union of India:- In this case, Section 497 of the Indian Penal Code was struck down by the Supreme Court. This section provided punishment only for men in cases of adultery and thus, the Apex Court held that the non-prosecution of women was violative of the fundamental rights given in the Constitution. The concept that women were owned by men or were belongings of men was held to be against the ideals of the Constitution. Here the respondents contended that adultery was derogatory to the institution of marriage. However, the Court was of the opinion that such arguments represented popular molarity, which is inconsistent with constitutional morality and has no role in determining the constitutionality of criminal laws.
Indian Young Lawyers Association v. Union of India: In this case, the prohibition on the entry of women between the ages of 10 to 50 in the Sabrimala Temple was challenged. It was held that the Temple has no denominational character and thus the practice of banning the entry of women was not an essential religious practise under Article 25 of the Constitution. It was also stated that the word “morality” in Article 25 refers to constitutional morality and not public or popular morality.

Significance of Constitutional Morality

The significance of constitutional morality is as described below:-

Constitutional morality ensures the enforcement of the rule of law in the country and at the same time it also keeps up with the changing times and demands of the society.
It encourages greater unity and cooperation among the people in order to preserve the institution of democracy and achieve its ideals.
Constitutional morality helps change the perception of society by abolishing the laws and practices which are inconsistent with the present time. For example, a law banning the practice of Sati was passed and after this law was enacted, there has been a significant change in the mind set of the public towards widows.
Constitutional morality makes society more inclusive by recognising the diversity that exists in the society and providing the opportunity for reforms. For example, in Navtej Singh Johar v. Union of India, homosexuality was decriminalised which ensured equal rights for the LGBTQ community.

Criticism

There are some concerns regarding constitutional morality which are discussed below:-

There is no clear definition of the term constitutional morality and this has led to varied interpretation based on the individual’s perceptions.
Constitutional morality promotes judicial supremacy which results in the Judiciary intervening in the functioning of the legislature thereby violating the rule of separation of power.
This concept has granted unrestrained power to the judiciary, as a result contradicting opinions are being given by the judges in the same case, with both of them declaring constitutional morality as the reasoning. For example, in Indian Young Lawyers Association v. Union of India, one of the Judges was of the opinion that the ban on the entry of women was constitutional and on the other hand, the other judges were supporting the entry of women in the Sabrimala Temple.

CONCLUSION

Even though there are differences of opinion regarding the various aspects of constitutional morality, still it has been a significant guiding principle for achieving the ideals of the Constitution. However, proper definition and mechanism regarding constitutional morality are needed to avoid any misinterpretations and misuses.

This article is written by Muskan Harlalka, a 2^ndyear law student from School of Law, Mody University of Science and Technology, Lakshmangarh, Rajasthan.

BIBLIOGRAPHY

Divya Aswani, Unveiling Constitutional Morality in India, Legal Bites (May 8, 2020), https://www.legalbites.in/unveiling-constitutional-morality-in-india/.
Is ‘Constitutional Morality’ A Dangerous Doctrine?, Bloomberg | Quint (Dec. 19, 2019), https://www.bloombergquint.com/opinion/indian-judiciary-is-constitutional-morality-a-dangerous-doctrine-by-abhinav-chandrachud.
J. Sai Deepak, Dr Ambedkar on constitutional morality, The Daily Guardian (Aug. 14, 2020), https://thedailyguardian.com/dr-ambedkar-on-constitutional-morality/.
Md. Zeeshan Ahmad, The challenge of Constitutional Morality before the Supreme Court, The Leaflet (Mar. 26, 2020), https://migrate.theleaflet.in/the-challenge-of-constitutional-morality-before-the-supreme-court/.
MK Narayan, Safeguarding Constitutional Morality, The Hindu (Dec. 23, 2019), https://www.thehindu.com/opinion/lead/safeguarding-constitutional-morality/article30383084.ece.
Ram Madhav, Cultivating Constitutional Morality, Open (Nov. 26, 2019), https://openthemagazine.com/essay/cultivating-constitutional-morality/.
Surabhi Shukla, Constitutional Morality in the Indian Constitution, University of Oxford (Mar. 12, 2018), https://www.law.ox.ac.uk/current-students/graduate-discussion-groups/south-asian-law-discussion-group/blog/2018/03-0.

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INTRODUCTION

India is a diverse country, where citizens practice different religions. The Uniform Civil Code in such a country is a debatable topic. Article 44 of the Indian Constitution empowers the state to formulate a single law that will govern all religious communities regarding inheritance, divorce, marriage, and adoption.

The Uniform Civil Code intends to replace personal law, which presently governs interpersonal relationships or related matters within different religious communities.

Background of Uniform Civil Code

The background of the Uniform Civil Code dates back to colonial India when the British government in 1835 submitted a report stressing the need for uniformity in the codification of Indian laws. This report recommended keeping the Muslim and Hindu personal laws outside such codification. British rule compelled the government to set up the B. N. Rau Committee to codify Hindu law in 1941. The Hindu Succession Act was adopted in 1956 to amend and codify the laws regarding intestate or unwilled succession among Hindus, Buddhists, Sikhs and Jains. However, for Christians, Parsis and Muslim separate law were made.

Status in Goa

The State of Goa has adopted the Portuguese Civil Code after Independence. It led to the implementation of the Uniform Civil Code in Goa for its residents. Under this, the married couple holds joint proprietorship in all advantages claimed and obtained by every mate. Parents can’t exclude their children. At any rate, half of the property must be given to them by the parents. Polygamy prohibited for Muslims who have enlisted their marriage in Goa. There, every individual is obliged to the same laws relating to marriage, succession, and divorce. The communities are not under their personal laws.

Implications of Uniform Civil Code

Protection to Vulnerable Section of Society – The implication of the Uniform Civil Code will protect the vulnerable sections of the society, women and religious minorities as envisaged by Dr B. R. Ambedkar. It will also help in promoting nationalistic fervour through unity.
Gender Justice – Enactment of the Uniform Civil Code will cease all personal laws and the gender biases in the Hindu law, Christian Law and Muslim Law that had challenged the ground of violation of the right to equality by women.
Adhering to the Ideal of Secularism – The Preamble enshrines the objective of Secularism. There is a need for Common law for all the citizens rather than different law based on religious practices.
Supporting National Integration – Implication of the Uniform Civil Code will lead all the citizens to share the same set of personal law. It will end the politicization of matters associated with discrimination, special privileges and concessions enjoyed by a particular community based on their personal law.[iii]

Challenges to Uniform Civil Code

Constitutional Hurdle – The freedom to practise and propagate any religion under Article 25 of the Indian Constitution conflicts with the concept of equality under Article 14 of the Indian Constitution.
Sensitive and Tough Task – The enactment of the Uniform Civil Code will be demanding human resources and tie wisely. The government should be unbiased and sensitive while dealing with the majority and minority communities, or it might take the form of disastrous communal violence.
Communal Politics – The demand for the Uniform Civil Code had formulated in the context of communal politics. It is seen as majoritarianism under the grab of social reform by a large section of society.
Practical Difficulties – Practically, it is not feasible to implement the Uniform Civil Code due to the cultural diversity for personal matters such as marriage. Furthermore, it would be hard to convince each community to replace their old tradition with a new law.

Recommendations of Law Commissions

The commission emphasizes initiatives to appease the nation’s diversity with a universal argument on human right. Law Commission recommended the codification of all the personal law to test against the anvil of the fundamental rights in the constitution; to remove religious prejudices and stereotypes. Furthermore, it can help reach certain universal principles and facilitate prioritizing equality rather than an imposition of the Uniform Civil Code.

Landmark Cases

Mohd. Ahmad Khan v. Shah Bano Begum

In this case, Mohd. Ahmed Khan v. Shah Bano Begum, Chief Justice Y.V Chandrachud held that a Common Civil Code could remove discrimination among the people of a different religion. It would also help in the loyalty towards law.

Sarla Mudgal, President, Kalyani v. Union of India

In the case, Sarla Mudgal, President, Kalyani v. Union of India, a woman filed a petition against her husband who married a second woman without divorce. Also, he converted his religion from Hindu to Islam.

The court held that the second marriage is void concerning Section 494 of IPC without resolving the first marriage. For better justice raised the need for the Uniform Civil Code.

Shayara Bano v. Union of India

This recent case challenged the constitutionality of triple talaq in Muslim personal law. In this case, the husband divorced his wife by saying talaq three times.

The five-judge bench of the Supreme Court held that the practice of triple talaq is unconstitutional as well as un-Islamic. To stop such personal law practices raised the question of the Uniform Civil Code.

Way Forward

Efforts should be made by the government and society to build trust and to unite with social reformers rather than religious conservatives.
Emphasis should put on women empowerment for all women of all religion.
Present institutions should be modernized, strengthened and democratized to bring this change.

CONCLUSION

The idea behind the enactment of the Uniform Civil Code is broad and should be understood well. The Uniform Civil Code is a secular code for personal laws that a country like India needs. It deals with the personal laws and the changing scenario of the society. Change is required in our social structures, full of disparities, separations and different things which struggle with our Fundamental Rights. With developing times, the need has appeared for having a uniform civil code for all citizens, independent of religion, guaranteeing that their vital and constitutional rights are secured. Presenting the Uniform Civil Code can also reinforce Secularism and National Integration.

This article is written by Gracy Singh, a student of 2nd year, pursuing BA.LLB (Hons.) from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

BIBLIOGRAPHY

Krishnadas Rajagopal, What is the debate on uniform civil code all about? The Hindu, Sep 18, 2018, https://www.thehindu.com/news/national/what-is-debate-on-uniform-civil-code-all-about/article24903560.ece.
Scope of Uniform Civil Code in India, Indian Institute of Legal Studies, https://www.iilsindia.com/blogs/scope-of-uniform-civil-code-in-india/.
Uniform Civil Code, Oct 30, 2020, https://www.drishtiias.com/daily-updates/daily-news-editorials/uniform-civil-code-1.
Viraj Gaur, Uniform Civil Code: What It Is & Why It Matters, the quint, Nov 23, 2019, https://www.thequint.com/explainers/uniform-civil-code-explained-what-it-is-and-why-it-matters#read-more.

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INTRODUCTION

“Public International Law is that system of law which is primarily concerned with the relations between States.” It is the body of rules binding on States and international organisations in their interactions with other States, international organisations and individuals. It includes law relating to the functioning of these organisations, their diplomatic relations, conducting of war, trade etc.

Originally, it included law for regulating interactions between the state only. For example: -International Law sets out the legal obligations, responsibilities, and rights of one State against another based on sovereign equality. But, with time International Law developed to regulate relations between States and non-State actors; for example, individuals, international organizations, and multinational companies. Thus, making it an evolving branch of Law.

Concept of Legal Personality

Personality involves the examinations of certain concepts within the law such as status, capacity, competence as well as nature and extent of particular rights and duties. In any legal system, certain entities are regarded as possessing rights and duties enforceable by law. For example- an individual may prosecute or be prosecuted for assault or a company can sue for breach of contract. All of this is possible because law recognises them as legal persons, possessing certain rights and subject to certain specific duties. But not everybody or everything can be regarded as a legal person, it depends upon the scope and character of law.

Subjects of International Law

“A subject of International Law can be defined as an entity capable of possessing international rights and duties and having the capacity to protect its rights by bringing international claims”. In other words, it refers to entities endowed with legal personality. It is not necessary for an entity to become a subject of International Law to possess all rights and duties of it. Even if it is competent to perform a few acts or a single act provided by the rules of International Law, it is regarded to have possessed the capacity to become a subject of International Law.

Theories Regarding Subjects of International Law

As mentioned earlier, International Law is not stagnant and keeps on evolving with time. With the increasing scope of International Law, many other entities have been given international personality. This led to an intriguing question- whether they be treated as subjects of International Law or not? And also, if they were given the international personality then what shall be the qualification of their being the subjects of International Law. So, there are different theories addressing this debate. The most prominent theories are explained below:

States alone are subjects of International Law (REALIST THEORY)

This theory emphasises on the traditional and rather a narrow view that States alone, as sovereign political entities, irrespective of the individuals composing them, are bearers of rights and duties under International Law. They rely upon that International Law came into existence for reforming conduct of only nation States and nobody else.

Prof. Oppenheim’s believes line up with this theory, “The law of nations is primarily a law of international conduct of States and not of their citizens”.

The jurists of this school believe that States are subjects, while individuals who compose these States are objects of International Law. Individuals do not have the procedural capacity to enforce their claims in International Law and if any, it is only through the medium of the States.

Criticism: – This theory underwent severe criticism and is no longer valid with the evolution of International Law as it does not talk about certain rights bestowed upon individuals and the offences for which they can be punished under International Law. Example-Rights bestowed upon slaves, punishment to pirates etc.

In Reparation for injuries suffered in the service of the UN, the Court by implication rejected the theory that only States are subject of International Law. It was held that the UN has the capacity to bring an international claim against the State for obtaining reparation when its agent suffers injury in the performance of his duties involving responsibility of States.

Individuals alone are subjects of International Law (FICTIONAL THEORY)

Contrary to the traditional view, supporters of this theory believe that on ultimate analysis of International Law, it will be evident that only individuals are the subjects of International Law. The reason given to support this theory is that a State is an abstract concept & does not have the ability to manifest its will. A State is nothing except the aggregate of the individuals. Though the rules of International Law relate expressly to the Nation States but actually the States are the fiction for the individuals composing them.

The chief exponent of this theory, Prof. Kelson held the view that the notion of State is purely a technical legal concept serving to embrace the totality of legal rules applying to a group of persons living in a defined territorial area. He concluded that the difference between state laws and International Law stood dissolved as both laws apply to the individuals and they are for them alone. The former is binding on them directly whereas the latter bind indirectly, through States.

Prof. Westlake, “The rights and duties of the States are only the rights and duties of men who compose them.” Ultimately making individuals as subjects of International Law.

Criticism: – This theory labelled State as fiction but in practice, International Law for its major part still deals with the rights and duties of the States. Also, even though individuals possess several rights under International Law, in most cases claim on his behalf can only be brought by the States whose national he is. Thus, making the procedural capacity of the individual to enforce the observance of these rights grossly deficient.

Hence, it would not be correct to altogether exclude States from being subjects of International Law.

States, individuals and certain non-State entities are subjects of International Law (FUNCTIONAL THEORY)

This theory broadened the scope of International Law and criticised the extreme and narrow views given by the other two theories. This theory not only clubbed the other two theories but also went a step ahead to include international organisations and certain other non-state entities as subjects of International Law. The current position of International Law, therefore, is that besides States, individuals, public international organisations and some non-state entities are subjects of International Law.

1. STATES

States being original subjects, their primacy in International Law is beyond any doubt. Modern International Law is created by States, primary sources being treaties and customs. Under Art 34 of the Statute of the ICJ, only States may be parties to cases before the court.

States enjoy full international personality with all its attendant rights and duties. They have that personality ab initio and ipso jure – from the moment of their birth and by virtue of law.

Oppenheim stated 4 conditions for the existence of States- People, territory, government and sovereignty.

In the Reparations Opinion (1949), the International Court stated that “A State possesses the totality of international rights and duties recognized by International Law”. Thus, highlighting the important elements that went into international personality: treaty-making power, privileges and immunities and the capacity to bring an international claim.

2. INDIVIDUALS

Individuals travelled a long way from being objects to subjects of International Law. It is a matter of fact that they have limited rights under International Law, and even more limited procedural capacity, accorded to them by States. In its development, some rights are conferred upon individuals even against States. Example- European Convention on Human Rights,1950.

3. INTERNATIONAL INSTITUTIONS/ORGANIZATIONS

International organizations are of fairly recent origin, the first probably being the Rhine Commission established after the 1815 Congress of Vienna among the riparian States to regulate navigation on the river in their common interests.

International organisations are defined as organizations developed by a treaty or other instrument governed by International Law possessing its own legal personality. Examples- World Trade Centre, United Nations etc.

Some of the rights conferred on international organizations are- Treaty making power, privileges and immunities, right to bring an international claim, protection for its agents acting in official capacity etc.

4. NON-STATE ENTITIES

Non-State entities are those types of entities that are not registered as an independent state and also not have a legal status like the States have. The non-State entities have a special type of personality in International Law. Their functions and powers are limited because they exist for a specific function. These entities fall into different categories i.e., Member of the Composed States or federal States, Insurgents and Belligerents, National Liberation movements, international territories. Minorities and indigenous people also come under this category.

CONCLUSION

The developing character of International Law now addresses certain non-state entities, individuals and international organizations besides States as subjects of International Law, though endowed with limited rights. The interest of individuals, their fundamental rights and freedom, etc. have become a primary concern of International Law. Thus, drawing the conclusion that the use of State as a medium and screen for the application of International Law cannot now do justice to all the far-reaching aims of modern system.

This article is written by Munmun Kaur, a law student from Law Centre-I, Faculty of Law, Delhi University.

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