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Vishrut Gupta, Lloyd Law College. This article strives to explain the readers about the Principles of Natural Justice, which is nowhere mentioned in the constitution but used widely in the Indian Law. It also covers the concept of Social Justice briefly.

Administrative Law and Natural Justice

Administrative Law is a type of public law that is specifically made for public welfare. Its formulation arises post-independence when there was a shift in the working of the state and welfare of the society was set to priority. This statute grants the discretionary powers and guidelines to exercise power avoiding arbitrary ruling and keeping a check. According to K. C. Davis, “Administrative law concerns with the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action”. Our topic of discussion has deep roots in the statute mentioned above. To avoid the misuse of wide discretion of powers, principles of Natural Justice is used in administrative actions such as fair trials, unbiased judgement, and limited exercise of powers by the executives. ‘Fairness’ is the key term of Natural Justice and these principles are also known as substantial Justice or fundamental Justice or Universal justice or fair play in action. In India, the principles of Natural Justice were first highlighted in the case of ‘Maneka Gandhi v. Union of India, 1978’.

Social justice

Social Justice is a civic concept of equality based on economic rights, political rights and social rights and opportunities. This concept arose in the early 19th century during the Industrial Revolution, when employers started exploiting the labourers. It aimed to create a more egalitarian and capitalist society. Initially, the justice system only restricted to boost the economy, but by the mid- 20th century, the objectives extended to the environment, race, gender and inequality issues. There are five main principles of social justice-

1) Access to Resources- Many a times, the basic resources to live such as food, shelter, education and healthcare are not given to the citizens leading to social injustice.

2) Equity- All the people are given the same socio-economic tools to uplift the social status and gradually achieve growth in certain parameters.

3) Participation- People are given equal rights to raise the voice and actively participate in the public policy. They play a major role in every policy formed affecting their standard of living and livelihood.

4) Diversity- Due to a diverse population, discrimination in employment based on sex, caste, creed, ethnicity and race are some constant issues faced.

5) Human Rights- Human Rights are universal rights and they are applied regardless of nationality, race etc.

Justice v. Natural Justice

Justice is a notion of rightness based upon ethics and morality, law, religion, fairness, equality and religion. Legal Justice works based on a legal framework laid down and regulated by the government and enforced by the courts while the principles of Natural Justice are not codified; these are merely based upon the judge’s discretion whether to include them in certain cases or not. The principles of natural justice don’t have a standard or scientific definition. Various jurists have defined it according to their hypothesis. These principles can step in only in the presence of an administrative action leading to the infringement of the rights of an individual. The importance of these principles can be recognised in various statutes as every law made has the ingredient of equity in it. All such theories and postulates are impractical in the absence of a ‘Good Judge’. Impartiality, Neutrality and Unprejudiced- are the three essential qualities which a good judge possesses.

Exceptions to Natural Justice[i]

These principles of Natural Justice are excluded from the exceptions of-

1) Statutory Provisions

2) Constitutional provisions.

3) Legislative act.

4) Public interest and welfare.

5) Urgent action or in case of emergency or necessity.

6) Ground of chaos.

7) Confidentiality.

8) Educational postponement.

9) Interim prevention action.

10) Fraud cases.

Principles of Natural Justice

There are two main principles of natural justice-

1) Nemo judex in causa sua’

2) Audi alteram partem

Nemo judex in causa sua’- A bias is an “operative prejudice concerning a party or issue.” Whenever an opinion is formed as an outcome of selective thoughts to favour, give an edge to a party or oppose a party for the sake of a relationship or liking, the opinion so formed is known as ‘biased opinion’. It can be in a form of real bias, imputed bias or apparent bias. ‘Nemo judex in causa sua’ or the Rule against Bias is made to rectify the unfairness and partiality in the judgement based on evidence. The above phrase means- “No one should be a judge in his case.” There are three kinds of bias found-

Personal bias– In this situation, the judge has personal feeling, or favouring a party because of some relationship with that party. There are two types of tests for personal bias, namely, the ‘Likelihood of Bias’ and the ‘Suspicion of Bias’.
Pecuniary bias – This means biased actions due to money-related incentives. Sometimes a judge is prejudiced in his judgement after being bribed and does not follow the Natural Justice.
Subject-matter bias– In some situations, the judge creates a pre-formed opinion of the subject matter. Ultimately he fails to give fair judgements. This may be due to departmental conflicts, acting under dictations or even connect with the issue.

Case Laws[ii]–

(a) R. v. Brandsley, 1976 I.R. 217 at 223

A licence had to be granted to a cooperative society. The judgement was given in favour of that society and later it was found that 5 out of 7 judges were the members of that society. The granted license was later cancelled because of the financial interest of the judges.

(b) Tata Cellular v. Union of India, 1994 INSC 401

The father was a government employee and the tender was submitted by his son’s company and approved for the same company due to his father. Due to personal bias, the tender was finally quashed by the court.

(c) Meenglass Tea State v. Workmen, 1963

A manager beat the workmen and the inquiry was conducted by him only. In a way, he became the witness and the judge of the case, later quashed by the court.

(d) State of U.P. v. Mohd. Nooh, 1958

In a departmental inquiry against an employee, a witness turned hostile. The inquiry officer left the inquiry and gave evidence against that employee. Later, he resumed the inquiry and dismissed that employee. Here also, the order of dismissal was quashed as it was based on personal bias.

Audi Alteram Partem

The natural right to be heard cannot be condemned. Each party should be provided with a reasonable opportunity to tell their side of the story, to produce their evidence and to rebut the evidence against him. Audi alteram partem or Right to Fair Hearing is the second strength of the principles of natural justice, which ensures that a fair opportunity to speak must be given to the party to defend the case against him. Some of the pre-requisites and essentials of the fair hearing are-

1) Notice should be served to the accused providing him a certain period so that he could also get legal aid to defend him

2) Accused should know the evidence against him which are presented in the court. He should also be given legal representation and financial aid to defend the case against him

3) He should be allowed to present his case and facts, and tell his version of the story. The chance to rebut or prove the evidence against him as wrong must also be given.

4) The right to cross-examine the witness should be enjoyed to make his side safer and stronger.

5) The fair hearing must be followed and both parties should be allowed to speak.

6) The Rule against Dictation should be followed and the decisions made by the judge should be his own and he should be dictated by external powers.

Case Laws

(a) Newspaper Express Pvt Ltd. v. Union of India, AIR 1958 SC 578

The court said that any administrative order passed by an authority without giving the parties, the reasonable opportunity to speak, and the order so passed will be considered illegal and must be set aside. Hearing is an essential ingredient in Indian Law.

(b) Public Prosecutor v. K.P. Chandrashekharan, (1957) 8 S.T.C. 6 (Mad)

The notice must give sufficient time to any person summoned or connected to the case.

(c) Dhakeswari Cotton Mills Ltd. v. C.I.T., AIR 1955 SC 65

Supreme Court overruled the Tax Tribunal decision where the taxpayer was not informed by the concerned department to pay off the due taxes.

(d) State of Orissa v. Binpani Dei, AIR 1967 SC 1269

A 55-year old employee was forcefully given the pre-mature retirement on the ground of the age; the order was set aside as he was not allowed to be heard.

(e) Khatri v. the State of Bihar, AIR 1981 SC 928

The court said that legal aid should be provided to the needy accused not only during the trial but also at the time of remand.

Maneka Gandhi v. Union of India, 1978[iii]

It was a landmark judgement where the petitioner was asked to surrender her passport by the Regional Passport Officer, New Delhi. When asked the reason for this order, ‘interests of general public’ grounds were provided. The petitioner reached the SC saying that the order by the authorities has infringed the fundamental rights under Article-14, 19(a), 19(g) and 21. They also rose that this order by the Passport authorities has also violated the principles of natural justice by not providing the petitioner with a reasonable opportunity of a fair chance of hearing to defend her (violation of Audi alteram partem). The respondents said that article-21 needs not to pass the ‘test of reasonability’ and the makers of the constitution have deliberately made it. They further added that the principles of natural justice are nowhere mentioned in the constitution of India and are highly vague.

The Supreme Court in their judgement admitted that there is a conflict between ‘procedure established by law’ and ‘due process of law’ but it does not mean that the law need not pass the ‘test of reasonability’, and further said that we cannot ignore the principles of natural justice even if they are absent in the constitution. They insisted that article-21 should be given a wider scope and should be exercised in a fair and just manner. The court also created an interlink between article- 14, 19 and 21 by overruling the A.K. Gopalan v. State Of Madras Case and these three laws were together termed as the ‘Golden Triangle’ of the Constitution and insisted to be read together.

Conclusion[iv]

Natural Justice is a very essential postulate and should definitely be included in our constitution. The principles of natural justice provide a blanket covering an individual from unfairness. It is not codified cannon. The principles of Natural Justice improve the functioning of administrative authorities. It ensures the right of people against the unjustified and arbitrary practice of power by the administrative authority. The main motive of natural justice is that it prevents the failure of justice. It also ensures that justice is done to both the parties in trial. The infringement of principles of natural justice results in arbitrariness and unfairness and the decision made in such a way is void or voidable.

[i] PaathShala, L. (2020, 12). Principles of Natural Justice. Retrieved 05, 2021, from https://legalpaathshala.com/principles-of-natural-justice/

[ii] The Fact Factor, Pecuniary Bias and Official Bias (2019), https://thefactfactor.com/facts/law/civil_law/administrative-law/pecuniary-bias-and-official-bias/4410/#:~:text=Official Bias or Subject Matter Bias: Another type,not disqualify a judge from deciding the matter. (last visited 2021).

[iii] Law Circa, Maneka Gandhi v. Union of India Case Analysis (Interconnection between Articles 14, 19 and 21) (2020), https://lawcirca.com/maneka-gandhi-v-union-of-india-case-analysis-interconnection-between-articles-14-19-and-21/ (last visited 2021).

[iv] Corner, L. (2020, 07). Significance of Natural Justice under Administrative Law. Retrieved 05, 2021, from https://lawcorner.in/significance-of-natural-justice-under-administrative-law/

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This article is authored by Sanskriti Goel , a 1^st year law student from Chanderprabhu Jain College of Higher Studies and School of law, GGSIPU. This article discusses the heinous crime of marital rape which any of the Indian laws fail to address effectively.

“They say that marital rape does not become a rape. And why would it be? Since, he had posted a logo of his surname on her body.”

—Anonymous

INTRODUCTION

Marriage is a social institution consisting of a pure relationship between two souls, but unfortunately, the social evil of rape does not even spare this bond of purity. According to the National Family Health Survey (hereinafter ‘NFHS’) conducted in 2015-16, the average Indian woman is 17 times more likely to face sexual violence from her husband than from others. The same data indicate that 5.4% of women were physically forced to have sexual intercourse with their husbands even when they did not want to. Further, the data shows that an estimated 99.1% of sexual violence cases go unreported, and in most of such cases, the perpetrator is the husband of the victim.

In spite of these worrisome reports, Indian law fails to effectively address this heinous crime of marital rape.

What is Marital Rape

Marital rape is the act of forceful and non-consensual sexual intercourse with one’s spouse. Marital rape is also known as spousal rape. The essential element here is lack of consent. It has been observed in many instances that it takes no time for domestic violence to turn into marital rape. So in simpler words, marital rape is a form of domestic violence and sexual abuse.

Lacunae in the Law

Section 375 of Indian Penal Code, 1860 (hereinafter ‘IPC’) defines rape as:

A man is said to commit “rape” if he—

penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.—With or without her consent, when she is under eighteen years of age.

Seventhly.—When she is unable to communicate consent.

However, exception 2 to Section 375 states that sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. Therefore, the exception discriminates between married and unmarried females and defeats the entire objective of Section 375 which is to protect women from all kinds of sexual assault. Perhaps, as per the current law in India, it is presumed that there is a perpetual ‘implied consent’ on part of a woman to have sexual intercourse with her husband. Here is a question to ponder upon how can the meaning of ‘non-consensual’ differ in marital rape? It seems like rape laws in India are made by people who believe in patriarchy and they are trying to tell all the women in India that once you get married your body becomes a property of your husband and you lose all of your rights over it.

Article 14 of the Constitution of India gives the right to equality. The exception 2 to Section 375 violates Article 14 by discriminating among women on the basis of their marital status. Not only this, the exception also violates Article 21 of the Indian Constitution, which gives the right to life. The Hon’ble Supreme Court of India in the State of Karnataka v. Krishnappa 2000 CriLJ 1793 held that sexual violence is not only a dehumanizing act, but is also an unlawful intrusion of the right to privacy and sanctity of a female. It was also observed that non-consensual sexual intercourse amounts to physical and sexual violence. Thus, marital rape clearly violates the right to live with dignity of a married woman. Moreover, the exception defeats the entire objective of Section 375 which is to protect women from all kinds of sexual assault as it creates a class of women which is not protected under this section. The wife cannot get out of the sexually abusive relationship and the husband who should be deemed a rapist continues committing the same crime under the tag of marriage.

The Protection of Women from Domestic Violence Act, 2005 consider marital rape as a form of domestic violence. Under this Act, if a woman is raped by her husband, she can go to the court and obtain a judicial separation from her husband. The Act does not consider marital rape as a crime and hence does not protect woman against marital rape completely. 640

In 2016, former Union Minister for Women and Child Development, Maneka Gandhi said, “The concept of marital rape as understood internationally cannot be suitably applied in the Indian context due to various factors like level of education, illiteracy, poverty, myriad social customs and values, religious beliefs and the mindset of the society to treat the marriage as a sacrament.” The Government of India is of the view that if marital rape is criminalized in India, it would destabilize the institution of marriage. Apparently it is believed that criminalizing of marital rape would lead to malicious prosecutions against husbands of those wives who want to take some kind of revenge from their husband.

Moreover, the IPC is based on the ‘Doctrine of Coverture’. The doctrine of coverture belongs to the common law foundation which postulates that the rights and obligations of a married woman are subsumed by her husband’s rights and obligations and does not consider a married woman as an independent legal entity. As a result, the notion of ‘implied consent’ in marriage continues to exist till now.

CONCLUSION

India is one of the only 36 countries where marital rape is still not criminalized. The Justice J.S. Verma committee which was formed after pan India outrage over the 2012 Nirbhaya gang rape case had also recommended criminalizing marital rape in India. But all in vain. What changes after marriage? Why is a sexual predator allowed to hide behind the mask of a husband? Why marriage is considered as a license to ‘lawfully rape’ your wife? Interestingly, in India marital rape only exists in the data, not in law. While we call for women empowerment, we fail to guarantee even the basic rights to a married woman. The doctrine of the coverture is no longer applicable in India and this calls for elimination of Exception 2 to Section 375 and stringent laws on marital rape.

Rape is rape. A rapist is a rapist, whether a husband or a stranger.

REFERENCES

The Indian Penal Code, 1860
https://www.google.com/amp/s/indianexpress.com/article/opinion/columns/the-impunity-of-marital-rape/lite/
https://prsindia.org/policy/report-summaries/justice-verma-committee-report-summary
https://www.google.com/amp/s/www.thehindu.com/opinion/editorial/criminalising-marital-rape-and-maneka-gandhi/article8352904.ece/amp/
https://www.mondaq.com/india/crime/691482/law-on-marital-rape-a-much-needed-reform-in-our-legal-system

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This article is written by Kalyani Gupta, a Master’s in Law student from Amity University, Noida. This article discusses meaning and rules for determining the residential status of an assessee.

INTRODUCTION

An ‘Assessee’ implies to an individual on whom tax, or any additional sum of cash is imposed under the Income tax and he is legally responsible to reimburse the same. According to section 2(7) of the Income tax Act, 1961, “assessee” implies an individual by whom any tax or any additional sum of money is outstanding under this Act, includes –

“Every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or assessment of fringe benefits or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person”
“Every person who is deemed to be an assessee under any provision of this Act”
“Every person who is deemed to be an assessee in default under any provision of this Act”

Hence, any individual who is responsible to pay tax through his personal income or income of any other individual is said to be called an assessee.

Need to Determine the Residential Status

The aggregate income is separate in case of an individual resident in India and a person who is a non-resident in India. Additionally, in case of a single person and HUF being “not ordinarily resident in India”, the implication of the total income shall be slightly distinct. Subsequently the total income of an assessee differs in accordance with his residential status in India, the occurrence of tax will also fluctuate keeping in mind such residential status in India.

Tax is imposed on the total income of assessee. According to the provision of Income-tax Act, 1961 the entire income of each individual is created upon his residential status. Section 6 of the Act separates the assessable individuals into three groups:

Ordinary Resident
Resident but Not Ordinarily Resident
Non-Resident

Residential status is a name devised under Income Tax Act and does not have nothing to do with nationality of an individual or his domicile. A person who is an Indian and a citizen of India can be non-resident for purposes of Income-tax, but an American who is a citizen of America can be an Indian resident for purposes of Income-tax. The residential status of an individual varies upon the territorial links of the individual with this country, which means that, the number of days he has actually and physically stayed in India.

The residential status of various kinds of persons is decided in a different way. Likewise, the residential status of the assessee is decided each and every year while referring to the “previous year”. This may change from year to year. What is important here is that the status throughout the previous year and not in the current assessment year.

An individual may be a resident in the preceding year and a non-resident in India in another preceding year, for example: Mr. X is a resident in India in the preceding year which is 2018-19 and in the next year he becomes a “non-resident in India”.

Duty of Assessee: It is duty of the assessee’ to put relevant statistics, evidence and information before the Authorities of Income Tax backing the determination of “Residential status”.

Dual residential status: A dual residential status is permissible. An individual may be resident of more than one country in a relevant preceding year for example, Mr. A may be an Indian resident during the preceding year 2018-19 and may also be a “resident/non-resident” in US in the same preceding year. The advent of such a condition varies upon the following:

the presence of the Residential status in countries under such considerations
the distinct set of rules getting put down for purpose of determining residential status.

Determination of Residential Status of Different Person’s

The Income tax is indicted on every person. The term ‘Person’ has been well-defined under section 2(31), which includes:

An individual
Hindu Undivided Family (HUF)
Firm
Company
Local authority
AOP/BOI
Every other artificial juridical person not included in the above categories

Therefore, it is necessary to ascertain the residential status of the above-mentioned different categories of persons.

Types of Residential Status

The following fundamental rules must be adhered to while ascertaining the residential status of an Assessee:

Residential status is ascertained for each type of persons individually and separately for example, there are distinct set of rules for deciding the residential status of a person and different rules for companies, etc.

Residential status is constantly ascertained for the preceding year because we must determine the aggregate income of only the preceding year.

Residential status of an individual is to be ascertained for every preceding year because it may vary every year. For example, X, who is an Indian resident in the year 2017- 18 which is considered the preceding year, could become a “non-resident” in the previous year 2018-19.

If an individual is an Indian resident in a preceding year related to an assessment year in regard of any basis of income, he shall be considered to be a resident in India in that preceding year which is pertinent to the current assessment year in reverence of each of his sources of income.

An individual can be a resident of one or more countries for any preceding year. For example, If A is an Indian resident for the previous year i.e., 2017-18, it will not imply that he cannot be a resident of any other country for that same preceding year.

It is the responsibility of the assessee to put all relevant facts before the assessing officer to allow him to ascertain his appropriate and accurate residential status.

An assessee can be classified into the subsequent residential status during the preceding year:

Resident in India
Non-Resident in India

A resident person and HUF are further sub-categorized into the following:

Resident and Ordinarily Resident
Resident but Not-ordinarily Resident

1. Individual:

The “residential status” of a person for the objective of taxation is decided on the foundation of his bodily presence in India for the duration of the preceding year (April 1 to March 31) and the preceding previous years. A person is deemed to be an Indian resident if he is:

“Physically present in India for a period of 182 days or more in the previous year”
“Physically present in India for a period of 60 days or more during the relevant previous year and 365 days or more in aggregate in four preceding previous years”

If an individual does not fulfil any of the two conditions mentioned above will be considered a non-resident in India for the objective of taxation in India. A resident person is additionally categorized into ‘Resident but not Ordinarily Resident’ if:

“His stay in India is of 729 days or less in previous 7 years”
“He was considered as ‘non-resident’ in 9 out of previous 10 years”

2. Hindu Undivided Family (HUF):

A Hindu Undivided Family is believed to be resident in India if the control and administration of HUF is in India. A resident Hindu Undivided Family is further categorized into ‘Resident but not Ordinarily Resident’ if:

“Stay of Karta in India is 729 days or less in previous 7 years”
“Karta was considered as ‘non-resident’ in 9 out of the previous 10 years. If the control and management of HUF are situated wholly outside India, then HUF shall be treated as non-resident”

3. Company:

An Indian Company is always considered as a resident in India. But, in the case of a Foreign Company, it will be regarded as a resident in India only if the “Place of Effective Management” (POEM) of that foreign company is situated in India. If Place of Effective Management of Foreign Company is beyond India, then it will be considered as a non-resident in India.

4. Every other Person:

In the situation of every other person, which is, Firm/BOI/AOP, they will be considered as a resident in India if the control and supervision of person is in India. If it is located outside of India, then the status will be considered as non-resident. It must be stated that if an individual is a resident in India in a preceding year in regard of any of his source of income, he is considered to be an Indian resident in regard of all his other sources of income. An assessee is not permitted to obtain separate residential status for his various sources of income. So, before determining the income during the year, it is very crucial to assess the residential status of the assessee for the duration of the preceding year.

CONCLUSION

“Origin, Nationality, place of birth, domicile” does not play a crucial role in the computation of Income Tax. If an individual who is a citizen of Indian can be non- resident and the individual who is not an Indian citizen and if he is residing in India and satisfying the conditions of being a resident then as an eye of Income Tax he can be a resident of India and will be taxable in nature.

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This article is written by APURVA, a student of the Fairfield Institute of Management and Technology, GGSIPU.

ABSTRACT

India is the country with the largest child population in the world and is home to over 19% of the world’s children. The nation, therefore, provides its children fundamental and legal rights for their overall care, protection, and development. But regardless of every affirmative action taken with respect to the children, the condition remains much unchanged over time. Among the children, child abuse is one of the most common and frequent challenges. To safeguard them against such abuse, many laws and provisions have been introduced. Hence, this article deals with the child abuse and the laws to prevent it.

Keywords: Largest child population, India, fundamental and legal rights, child abuse

INTRODUCTION

One of the biggest social stigmas is child abuse. An act, failure, or negligence on the part of any individual, either an adult or a child that leads to severe threat to the life and development of a child that results in prolonged physical and psych-social impact on his health and wellbeing is child abuse. It is harm to a child’s survival, dignity, socialization, and development. It can happen in schools, homes, foster care institutions, playgrounds, workplaces and online as well.

Child abuse can be of many types. It is necessary to understand their occurrence to derive a clear idea and to ponder upon possible solutions. The types are as follows:

PHYSICAL CHILD ABUSE: Potential physical harm from a confrontation or an interaction with a person in a position of power or authority is physical type of abuse. Punishing excessively, hitting a child, leaving a child in an undignified posture, bullying, and forced work conditions are some physical child abuses. This induces unexplained bruises, welts, or wounds, etc., or the victimised child becomes fearful or shy by behaviour.
EMOTIONAL CHILD ABUSE: Hampering a child’s mental development by isolation, exclusion, stigmatising or due to failure of providing a supportive environment or blackmailing a child are emotional child abuses. This is considered a major challenge for a child’s development due to lack of evidence of such abuses and is not easy to identify them. These abuses may always be present when other forms of abuse are identified.
SEXUAL CHILD ABUSE: Involving a child in a sexual activity without the child’s proper understanding and approval is sexual child abuse. Kissing or holding in a sexual manner, touching genital areas forcefully, vaginal, and anal intercourse, rape, giving obscene remarks, exposing to pornography, voyeurism are the ways to exploit a child sexually.

Rights of the Children

To ensure comprehensive growth, development, protection, and upliftment of the children of the country, certain rights have been given to children through the Constitution of India, or by some policies and programs and by acts and amendments.

Constitutional Provisions

Fundamental Rights:

Article 14 of the Indian Constitution ensures that every citizen –man, woman and child is equal in the realm of law.
Article 15 of the constitution provides for the prohibition of discrimination and empowers the state to make special provisions for women and children.
Article 21A makes it mandatory for the state to provide free and compulsory education to children in the 6-14 age group.
Article 23 prohibits Human trafficking and forced labour.
Article 24 prohibits Child Labour below 14 years of age in factories, mines, or other hazardous work environments.

Directive Principles of State Policy (DPSP)

Article 39(e) of the constitution states that the State shall ensure the health and strength of workers, men and women and the tender age of children are not abused.
Article 39(f) directs the State to ensure that children are provided with opportunities and facilities to develop in a healthy manner It directs the State to ensure that the children develop in a dignified and free environment and that their childhood and youth is protected against exploitation and against moral and material abandonment.
Article 45 states that the state shall ensure early childhood care and education for all children until they complete the age of six years.

Other Provisions

Article 51A-(k) lays down a fundamental duty of the citizens which directs parents or guardians to provide opportunities for education to their child/ward between the age of 6 and 14 years.
Article 243(g) read along with Schedule 11 that provides for institutionalization of childcare by seeking to entrust programs of women and child development to panchayat, with a bearing on the welfare of children

Policies and Programs

National Policy for Children 1974- It is the first child centric programme launched by the government of India for the all-round development, care, and protection of children. It recognises children as the supreme asset of the country and ensures that their rights, as enshrined in the constitution and the UN Declaration of Rights, are implemented.
National Policy on Education1986- It called for a special emphasis on equality in the sphere of educational opportunity. It called for a child centred approach in primary education.
National Policy on Child Labour 1987 is an initiative of the government to strictly implement the provisions of the constitution pertaining to the prohibition of Child Labour and works towards the betterment of the conditions of working children.
National Charter for Children 2003 is a comprehensive document that empowers children with the right of being a child and enjoying their childhood to the fullest. It directs the State, the society, the community, and the families to develop a healthy, safe, and positive environment for the growth of every child in the country. It also secures the right of adolescent children to proper education and other facilities that would lead them to be productive citizens for the nation.
National Plan of Action for Children 2005 aims to tackle the various problems of a child’s life. It works on the prohibition of child marriage, abolition of female foeticide, female infanticide and upholding and securing the rights of children in difficult circumstances such as abuse, exploitation, and neglect.
Child-line Services have been launched by the government especially after the Twelfth Five Year Plan to help children in case of emergency or in situations where they cannot seek help from anywhere else. It is basically run by Childline India Foundation, the mother organisation for this scheme in the country. Over the years, the Childline has received over millions of calls, specifically associated with issues of medical support, shelter for neglected or abandoned children, emotional guidance, and protection from abuse amongst others.
National Institute of Public Cooperation and Child Development is the foremost organisation for the documentation and compilation of research and initiatives related to women and child development. It works in the areas of child protection, childcare support services, awareness against abuse and exploitation and the rights of children.
The Twelfth Five Year Plan was launched in the year 2012 which focused on child development and ensuring higher sex ratio in the country. It was a major governmental step towards increasing the status and condition of children in India, especially the female child.

Reforms

Significant steps must be taken in the direction of reforms and preventions and special emphasis should be made on improving the mental and emotional conditions of victimized children.

Legal Reforms

Government should make more efforts to strengthen the economic conditions of the families as poverty is a major cause.
Sexual education should be made mandatory in educational institutions.
Grievance’s redressal should be installed in educational institutes for speedy solutions.
Police and administrative bodies should be easily accessible to children.
Workshops should be conducted for children on a local level.

Social Reforms

Workshops and awareness programs should be conducted on a larger scale by governmental and non-governmental organizations.
Talking about sex should be made normal so that children will not hesitate to talk about that to the people they trust.
Children should be taught about Children protection Schemes and Childline services at a young age.

Psychological Reforms

More centers of psychological assistance must be installed for victimized children.

CONCLUSION

The analysis clearly highlights that many children around, some way or the other are victims of child abuse. It is therefore necessary for the society and the government to awaken for the protection of the children and to enhance their childhood. Our children are our future, so their present should be safeguarded for a better future.

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This article is authored by Sanskriti Goel , a 1^st year law student from Chanderprabhu Jain College of Higher Studies and School of law, GGSIPU. This article deals exhaustively with constitutional law, criminal laws, election laws and IT laws in context of hate speech.

“There is a fine line between free speech and hate speech. Free speech encourages debate whereas hate speech incites violence.”

—Newton Lee

What is Meant by Hate Speech

The Black’s Law dictionary defines hate speech as—“Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.”

The Law Commission of India, in its 267^th report, defined hate speech as —“Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief. Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”

The right to freedom of speech and expression is recognised as a core right all across the globe. With modernisation, the world was gifted with internet, the purpose of which was to connect people with their loved ones. But unfortunately, some people use it to spread hatred. In today’s world, the ideas that we share and the words that we speak spread like wildfire.

Constitutional Law and Hate Speech

Article 19(1)(a) of the Constitution of India gives the right to freedom of speech and expression to all Indian citizens. This article guarantees right to propagate one’s ideas freely and to publish, distribute and circulate their idea. The freedom of speech and expression essentially means the liberty to express one’s own stance through the words either written or spoken. However, Article 19(2) also provides ‘reasonable restrictions’ on the freedom of speech and expression. This means that this right is not absolute rather conditional and the government can ‘reasonably’ limit the right to freedom of speech and expression when there is a threat to the sovereignty and integrity of India, or the security of the stat, or friendly relations with foreign state, or public order, or decency, or morality, or contempt of court, or defamation, or incitement to an offence.

The ‘public order’ restriction saves majority of hate speech laws from unconstitutionality in India. In landmark judgement of Ramji Lal Modi v. The State of UP (1957 AIR 620), the Hon’ble Supreme Court of India upheld Section 295A of the Indian Penal Code, 1860 and observed that a law may not directly deal with public order , it could be read as in ‘interest of public order’.

The Indian Penal Code and Hate Speech

The following sections of Indian Penal Code, 1860 (IPC) deal with hate speech:

Section 153A criminalises the promotion of enmity among different groups of people on grounds of religion, race, place of birth, language, etc., and acts that are prejudicial to maintaining harmony. Whoever commits this offense shall be punishable with imprisonment of up to three years, or with fine, or with both. Additionally, whoever commits such offense in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies shall be punished with imprisonment of up to five years and fine.
Section 153B punishes making of imputations or assertions prejudicial to national-integration with imprisonment of up to three years, or with fine, or with both. The section also defines increased punishment of imprisonment of up to five years and fine when the aforementioned offense is committed any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies.
Section 295 criminalises the destruction, damage or defilement of places of worship or sacred objects with the intention of insulting, or with the knowledge that such an act is likely to be considered insulting to the religious sentiments of a class of persons. The punishment prescribed in the section is imprisonment for two years, or fine, or both.
Section 295A punishes whoever, with deliberate and malicious intention of outraging the religious feelings of any class of persons, by word, either spoken or written, or by signs or by visible representation, insults the religion or the religious beliefs of such class, with imprisonment of up to three year, or with fine , or with both.
Section 298 states that whoever, utters any word or makes any sound or gesture, with the deliberate intention of hurting the religious feelings of any person, shall be punished with imprisonment of up to one year, or with fine, or with both.
Section 505 punishes statements made with the intention of inducing, or are likely to induce, fear in the public, instigating them towards public disorder; statements made with the intention of inciting, or are likely to incite, class or community violence; and discriminatory statements that might promote inter-community hatred. The punishment stipulated is imprisonment of up to three years, or with fine, or with both.

The Code of Criminal Procedure and Hate Speech

Following sections of the Code of Criminal Procedure, 1973 (CrPC) deal with hate speech:

(1) Section 95 and Section 96 authorise the state government to forfeit any ‘book, newspaper or document’, the publication of which is punishable under Section 124A, section 153A, Section 153B, Section 292, Section 293, and Section 295A of the IPC.

(2) Section 196 acts as a procedural safeguard against frivolous prosecution for hate speech offences, such as those under Sections 153A, 295A, 505 and 153B of the IPC.

The Representation of the People Act, 1951

The Representation of the People Act, 1951 (RoPA) contains the laws that regulate the conduct of elections in India.

Section 8(1)(a) disqualifies a person from contesting in election if he/she was convicted under Sections 153A and 505 of the IPC.
Section 123(3A) considers promotion of enmity or hatred among different classes of citizens of India for the furtherance of the prospects of the election of a candidate or for prejudicially affecting the election of any candidate as a corrupt practice.
Section 125 says that promotion of enmity or hatred among different communities is an electoral offense and is punishable with imprisonment of up to three years, or with fine, or with both.

Information Technology Act and Hate Speech

Following section of the Information Technology Act, 2000 (IT Act) deals with hate speech:

Section 69A empowers the Central Government or any of its authorised officers to issue directions for blocking for public access of any information which is in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above.

References:

The Constitution of India Act, 1949
The Indian Penal Code, 1860
The Code of Criminal Procedure, 1973
The Representation of the People Act, 1951
The Information Technology Act, 2000
https://www.epw.in/engage/article/do-indian-courts-face-dilemma-interpreting-hate
https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.latestlaws.com/wp-content/uploads/2018/05/NLUD-Report-on-Hate-Speech-Laws-in-India.pdf&ved=2ahUKEwj949HpoNHwAhVEYysKHa4YB4AQFjAAegQIAxAC&usg=AOvVaw2-RV9_knj0CRA-4UaVK0ci

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This article is written by K.Lasya Charitha pursuing BALLB in Damodaram Sanjivayya National Law University, Visakhapatnam. In this article, the researcher discusses the basic concepts of FIR like the meaning of FIR, who can file an FIR, the process of filing an FIR, etc.

INTRODUCTION

FIR is very important in Indian criminal proceedings because it is the first step in any criminal prosecution. FIR stands for “First Information Report”. As the name suggests, the first intelligence report is the first step towards criminal prosecution, which leads to trial and subsequent punishment of criminals. The investigation by the police officers is based on the submitted FIR. When the case is tried, it is also one of the most important pieces of evidence that constitute the entire law enforcement structure. FIR is the first step in India’s criminal cases.

What is an FIR?

The First Information Report (FIR) is a written document prepared by the police when they receive information about the commission of a cognizable offense. This is the information sent to the police first, so it is called the first information report. This is usually a complaint made to the police by a victim of admission of a crime or a person representing the victim. Anyone can notify the police of the crime verbally or in writing. You can even send telephonic messages to the police. It is considered FIR.

Who can file an FIR?

Anyone who knows the crime committed can file an FIR. It is not necessary for the crime victim alone to file the first information report. Police officers who know of the crime can submit the FIR themselves.

You can submit FIR under the following circumstances:

You are the person against whom the crime is committed;
you are a relative or friend or acquaintance of the victim of the crime;
You are a person who has seen the crime or heard about it.

Importance of FIR

The FIR is important for the following reasons:

To Notifying the county magistrate or commander of the district police station responsible for the peace and security of the crime area.
To inform the Judicial Officer who ultimately owns the case. The court will consider what, what facts will be reported immediately after the crime, and what investigation materials will be initiated.
To protect the accused against later variations or additions.
To set the criminal law in place for that particular case.
To help in the investigation of that particular crime.

What is Zero FIR?

A zero FIR is that which allows any police station to register for FIR, regardless of its scope of jurisdiction. It is widely used for crimes such as murder and rape, as well as other recognized criminal offenses, that is, the first criminal action that the police can take against it and investigate it before referring it to the appropriate judicial department if needed. This is very useful for crimes that require an immediate response, because it allows you to act more quickly without getting caught up in a bureaucratic process, and explains whether it is difficult to reach the police station in whose jurisdiction the crime was committed.

Information in Cognizable cases (§ 154 of CrPC)

Since the information received under section 154 is called FIR, it is important to understand the rules regarding the information recording procedure for identifying cases under section 154.

If the information is given orally through a telephone then at the police station, it must be shortened in writing by the appropriate police officer, and then it must be read by him over to the informant and then signed by him. The information obtained in this way must be recorded in a book approved by the state government.
A copy of the registration information will be sent to the informant free of charge.
If the supervisor refuses to record the information, the person can send the information, and the victim can send the content of the information to the superintendent of police and the superintendent if satisfied with the identifiable crime, they will investigate the case on their own or order an investigation by a subordinate police officer. The designated police officer must exercise all the powers of an officer in charge of the police station in the relevant crime.

If the information is provided by a woman, and the crime has been committed against her specified in Section 326-A, Section 326-B, and Section 354, 354-A to 354-D, 376, 376-A to 376-E, or 509 IPC is suspected of committing or attempting a crime. This statement must be recorded by a woman police officer.

Non Cognizable Cases

If a non-cognizable crime occurs, when the informer approaches for help from the police officer in charge, he enters the information specified by him into his account book (in accordance with the format prescribed by the state government).
Secondly, according to Section 155(3) of the Criminal Procedure Code, police officers can only investigate recognized criminal offenses after receiving an order from a judge.

For cognizable and non-cognizable criminal offenses, the investigative power of police officers is the same, except for the power of arrest without a court order. The Supreme Court in the State of West Bengal and Ors v. Swapan Kumar Guh and Ors ruled that: “there is no such thing like unfettered discretion in the realm of powers defined by statutes and indeed, unlimited discretion in that sphere can become a ruthless destroyer of personal freedom. The power to investigate into cognizable offenses must, therefore, be exercised strictly on the condition on which it is granted by the Code”.

Therefore, it can be concluded that those who wish to register before filing a complaint against a non-cognizable offense must first file a complaint with a qualified magistrate with the correct jurisdiction. There are no strict rules regarding the format of the report. Depending on the situation, the complaint can be as an affidavit or petition. After receiving the complaint, justice will determine the issue of consciousness. If the judge is convinced that the crime is non-cognizable then he will order an investigation.

How to file an FIR?

If a crime has been committed, and the victim or someone else wants to submit FIR then it can be done in the following way:

Go to the police station and meet the office in charge of the station.
Notify the officer of all information and the facts about the crime in a sequence and orderly manner.
The officer will shorten the information provided in writing.
The information provided must be signed by the person who provided the information.
The information provided is recorded in a book kept by the official.
A copy of the FIR must be given to the person who filed an FIR.

Usually, a phone call will be made to summon the police to the scene. In this case, the telephone conversation between the informer and the police officer is not counted as FIR registration. The Supreme Court of India in Siddhartha Vashisth alias Manu Sharma vs State (NCT of Delhi) held: “The phone calls to the police immediately after the incident are only FIR if they are not vague. Calls for getting a police officer to the crime scene do not constitute an FIR.” Therefore, if the information provided about the crime is clear, clear, and detailed, then it can be said that the telephone conversation constitutes an FIR.

What should FIR include?

The content of the FIR is as follows:

If the reporter is an eyewitness or hearsay evidence.
The recognized type of cognizable offense.
The name and detailed description of the accused (full description of appearance)
The name and identity of the victim of the crime. (if known)
The date and time of the crime.
The place where the crime occurred.
The cause of the crime (if known)
How the crime had occurred (a description of the actual crime)
The name and address of the witness of the crime.

Immunity against FIR

An officer cannot register FIR against the President and Governor of India during their term of office because they enjoy immunity under Article 361 of the Constitution of India.
An FIR cannot be filed against the current members of the legislature or parliament who are responsible for anything that is said or done on the floor of the house, but if the speaker of the house or the person authorized by him wishes, the police officer will record the case. These members enjoy immunity under Articles 105 and 194 of the Indian Constitution. However, it should be pointed out that they are responsible for criminal prosecution of acts committed in their personal capacity outside the legislative assembly and parliament.

Conclusion

FIR is the first stage of criminal proceedings and leads to the trial and punishment of offenders. This is also the main evidence of the whole process structure. Therefore, it is very important for everyone to learn the basics of FIR in India. The complainant can understand and know his case only after understanding these basic rules. Even a brief understanding of these concepts will go a long way in determining the correct course of action.

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This article is written by Saba Banu , a 3^rd year law student of Pendekanti Law College, Hyderabad.

INTRODUCTION

In every case, a suit requires parties, which are most important for proceedings. If the parties to the suit do not show up, then it can be termed to be the non appearance of parties. Under the civil procedure code, there are certain provisions relating to the appearance and non appearance of the parties, by using this, they can be held liable and there will be consequences which they have to face. It is required that, parties to the proceedings appear in the court on the mentioned date by the court, either themselves or on behalf of them, their pleaders can visit. It is must and that they should visit to hear the pleadings argued by their respective counsels. Order IX of the civil procedure code lays down the principles on appearance of parties and what will be the consequences for non- appearance of parties. It is therefore said that parties should appear before the court for the proceedings, if they do not appear, then the court may apply Rule 12 of Order IX, which states that, if the plaintiff does not appear, then the suit is dismissed, because the burden of proof lies on the plaintiff to prove all the proceedings. If the defendant does not appear, then, they can pass an ex-parte order.

When both the parties, do not appear for the hearing, then the court may take action, and the court may dismiss the suit under Rule 3 of Order IX, and if the plaintiff gives a reasonable ground for his non appearance, upon which if the court satisfies, then the court can give another date for the hearing of the case.

As mentioned in the article, there will be consequences if the parties do not appear, they can be classified in 3 ways:

Both the parties,
Only if the plaintiff is absent,
Only if the defendant is absent.

When both the Parties does not Appear

Under the civil procedure code, if both the parties to suit do not appear, then the court may dismiss the case under Rule 2 of Order IX. And then the court may give a fresh date, for the hearing for both the plaintiff and defendant. And this power is discretionary to that of the judge, either they can dismiss the suit or can give another date for the proceedings of the case. And this duly will be applied to the non appearance of both the parties; if the plaintiff has appeared then it won’t be dismissed.

When Plaintiff does not Appear

If the plaintiff fails to appear, the court can dismiss the suit according to rule 8. Dismissal of suit depends totally on the defendant, whether the defendant accepts the claims raised by the plaintiff.

Case law: In Lakshmi commercial vs. Hansraj, the court said that this rule would not apply where the suit is dismissed for plaintiff’s non appearance, not for hearing the issue but for some interlocutory matter.

When the Defendant does not Appear

Under rule 6 of Order IX, the defendant does not appear, the court under three circumstances, they are:

i) The defendant may choose to remain silent after receiving the summons.

ii) The defendant did not set out the summons.

iii) The defendant was served with summons, but appropriate time was not there to appear him to court.

So as mentioned above, there are three circumstances upon which the absence of the defendant can be identified, the court is entitled to proceed with the hearing of the case only by the plaintiff. These proceedings are called ex-parte proceedings.

As we have seen in the 3 scenarios, under 1^st and 2^nd scenarios, the court can issue adverse orders against the defendant. Under the 3^rd scenario, where the defendant did not have sufficient time to appear in the court, the court may give a further date to hear the issue.

What are ex-parte proceedings?

Under the civil procedure code, sub-rule 1(a) of rule 6 along with rule 13 of Order IX, deals with ex-parte proceedings. Ex-parte decree is passed when the plaintiff has appeared before the court, and the defendant did not, even if the summons was duly served. An ex-parte is given against the defendant, because he was absent at the hearing of the suit. In addition to this, the defendant has certain remedies when the ex-parte is issued.

Remedies available for defendant:

i) The defendant can apply to the court under rule 13 of Order IX, for setting aside the decree passed by the court.

ii) Defendant can apply for a review under Order 47 rule 1

iii) A suit on the ground of fraud can be filed.

CONCLUSION

The appearance and non-appearance of the parties will have duly effect on their case, by dismissing the suit or hearing on the further date or ex-parte can be passed. So, when the parties have not appeared in the court, then the court will have to take up any step mentioned. In regard, to dismiss the suit it is the discretionary power, that to dismiss the or not, in the hands of the judge. The judge can either dismiss the suit, or can give a further date, by seeing the reason stated by the party, and duly take the decision.

There are situations upon both the plaintiff and the defendant, if the defendant did not appear to court, then the court may pass ex-parte decree, on the other hand, if the plaintiff did not appear in the court then, the court may dismiss the suit and give the further date for the proceedings, along with it, the decision lies on the defendant.

When any ex-parte decree is passed, it can be set aside if the court may satisfy the reason given by them.

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This article is written by Kalyani Gupta, a Master’s in Law student from Amity University, Noida. This article discusses the meaning and scope of Forensic Science along with different kinds of methods used.

INTRODUCTION

Forensic science can be described as a study and use of science to issues of law. This link of science and law offers new techniques and methods for finding the reality. The word “forensic” is obtained from a Latin word “forensis” which implies ‘forum’, a public spot where, in the Roman times, senators discussed and conducted judicial proceedings.

Forensic science is a consolidative subject linking numerous areas of learning which are used for examining crime scenes and gathering evidence to be used in the prosecution trial of criminals in the court of law. The methods of forensic science are used to examine compliance with international treaties involving weapons that can cause mass destruction. Previously, the major areas used in forensic science were biology, chemistry, and medicine. Forensic specialists give an essential source of information whether international or domestic for criminal proceedings. “Their knowledge from mass graves is not an exception: findings from exhumations and examinations have featured in the ad hoc tribunals’ trials and judgments”. The statistic is that not many professionals are trained with the knowledge required to fully apply the ability of science in legal civil, criminal, and family matters.

Scope of Forensic Science

The area of forensic science is so broad and diverse that currently it has become an essential ‘working horse’ for delivering justice. The present-day situation in India of criminal investigations and prosecution is rather bleak. In India, a huge number of tracks end up in releases. Both official and unofficial figures are included in it. When it’s official then it is about 90% and when it is unofficial the figure is even greater.

In India, the inquiry of crime and prosecution of people who have committed the crime is not that great. Even in outrageous crimes a large number of offenders are not prosecuted and a few proportions of trials end up in release or acquittal because of which several criminals along with crimes are increasing regularly. These recurrent acquittals are primarily because of outdated procedures of inquiry and investigation which lead to numerous ambiguities. Thus, for genuine investigation scientific methods of investigation are required.

The need for the use of science in the spreading of criminal justice has evolved from the following aspects:

Societal Vagaries: The society is experiencing changes and that too at a very quick speed. India has undergone a radical shift and has changed from an imperial colony into an autonomous republic. Modern innovation has touched all the ways of life including communication or transportation. But this transformation has not been positive as such, but it has affected negative individuals as well as the satellite interaction which is assisting and helping the intelligence agencies and proved it as a boon to the criminal minds.

Obscurity: The change in the techniques of transportation and altering of social paradigm from rural to urban literally helped and enabled the criminals to evade from instant arrest and punishment for the commission of crime. The criminals with the assistance of improved services can go into hiding in any area of the city or can travel hundreds of miles away from the target where the crime was committed in a very short period of time.

Technical Know How: The technical expertise of an ordinary man has improved which has developed the ways of committing the crime and in order to fight with these enhanced techniques of committing crime by the offenders, the technique and methodologies of fighting the said crime should also get advanced and updated.

Extensive Arena: The field of business of criminal law is expanding at a tremendous rate. Legally the crime and criminal used to be local, and typically age-old methods were used for perpetrating the crime but now both national and international crimes are a common occurrence. “Smuggling Drug Trafficking, financial frauds and forgeries offer a wide and over expanding field”.

Better Evidence: Usually the physical evidence evaluated by an expert is extremely intent in nature, like for example if a fingerprint is discovered at the crime scene, it is perceived to be of only one person. If that person turns out to be the suspect in the crime occurred, he must account for his mere presence at that crime scene. Similarly, if a bullet is retrieved from a dead body, it can be ascribed to one firearm or gun. If this gun turns out to be of the accused, he must be held responsible for its participation in that crime. Such type of evidence is always provable.

Different Kinds of Methods Used

Forensic Odontology: This helps in finding the victims when the dead body is left in an unrecognizable condition. It is achieved by analysing and examining the teeth, alignment of the mouth and the whole mouth structure. ‘Forensic dentists’ or ‘odontologists’ help with a person’s relative identification by examining the teeth’s expansion and anatomy, and any recuperative dental corrections such as a teeth filling. This can also be used for analysing bite marks in criminal investigations.

Forensic Toxicology: Chemicals which are legally identified as having the abuse possibility are deemed as controlled elements. This involves drugs which are illegal for example – “cocaine or heroin and prescription medications like oxycodone”. Discovering and acknowledging these drugs play a crucial role in helping the legal enforcement authorities tackle opioid addiction and violence because of drugs. This division of forensic science is of a very crucial importance in situations like road accidents, poisoning, sexual assault etc. The reports of toxicology offer vital specifics on the presence of any incident which is related to drugs. Because of different types of drugs being created on an everyday basis, this particular branch of forensic science is constantly changing and needs to update its approach.

Forensic Anthropology: This branch deals with the analysis of broken or damaged remains of the human body or skeletons to evaluate the age, height, gender, and background. It also helps by identifying and assessing injuries to ascertain the time passed since the time of death of that person. The research recommends valuable clues on identification of the victim, particularly in those cases where the dead bodies are beyond identification.

Impression and Pattern Evidence: “Evidence for impression is that evidence which can be produced when two objects come into contact with enough power to create an impression”. This can involve a two-dimensional idea such as a fingerprint, or a three-dimensional notion like a bullet mark. Analysis of the pattern evidence involves finding and assessing extra details surrounded by a given assessment. When applied in conjunction, influence and pattern evidence can assist in forming crucial links between a suspect to a scene of crime.

Forensic Pathology and Medicolegal Death Investigation: Forensic pathology aids with the inspection and examination of the dead body in evaluating the cause of death. Forensic medicine involves assembling and examining the medical samples to determine facts which are acceptable in court. Discovery of wound patterns, for example, can help in finding the weapons which might have been used to perpetrate the wound. Moreover, forensic pathologists may examine weapons used in deaths concerning wounds of exit and entry.

Trace Evidence: The examples of “trace evidence” involve substances such as – fibres, dirt, hair, bullet residue, wood, and pollen. It draws its name from its capability to be effortlessly exchangeable in the path of a crime between pieces, people, or climate. Trace evidence also plays a very important role in connecting the offender to the victim.

Cyber Forensics: Cyber Forensics involves the research or study of electronic information and data and physical storage space devices such as pen drives, hard disks, etc. The key purpose is to identify, store, recover, assess, and present facts and views on digital content. This is mainly used to indict cybercrimes and civil events.

Ballistics: Ballistics is a very distinct forensic science involving – “motion, actions, movement, angular motion, and projectile impact, such as bullets, rockets, missiles, bombs, etc”. Ballistics were utilized primarily in criminal investigations. Analysis of the bullets found at a crime scene, for example, it can reveal the kind of gun which was used to fire and whether or not it was engaged with any more crimes in the past. Also, the ballistic details are documented in a massive database that the legal enforcement agencies around the world can have access to.

CONCLUSION

Forensic science is an evidenced process which includes numerous areas of science. It comprises further progressive thinking and modern medical technology. Forensics involves a specialist who can gather biological samples while taking vital precautions during gathering, like proper handling, suitable storage of biological samples for example blood, semen, saliva, hair etc. Forensic science can contribute a lot for obtaining speedy justice to the society if appropriate measures are taken for due and efficient execution. The prominence statements from the forensic scientists shall certainly fulfil the hope of the people from the professionals of forensic. Currently, because criminals are adopting new contemporary complex techniques in executing the crimes, so, it is not feasible to solve the crime without using the new systematic technique.

Therefore, the significance of forensic science is rapidly increasing in the current time with the assistance of forensic science and its innovative techniques the enigmatic crime can be effortlessly solved.

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Vanshika Arora, is a first-year B.A.LL.B student at Army Institute of Law, Mohali. This article throws light upon the recent illegal adoptions and child trafficking.

Amid the horrors of plummeting oxygen, and floating dead bodies, many other precarious state of affairs have engulfed the country. One of the many is WhatsApp messages being sent around, pleading people to adopt children that have been made orphan due to the pandemic. Surprisingly, “covid orphans” are being projected as moral responsibility, however, these children have been victims of the dreaded crimes of child trafficking, and forced child marriages.

These social media posts and WhatsApp messages might seem emotive and shadowed with morality, however, such a practice is illegal under the law. Moreover, ‘commodifying’ children is not only illegal but also, unethical on many grounds. Experts have warned that the source of these internet pleas could be well-thought, profiteering racquets of child trafficking. The correct manner of helping a distressed orphaned child under the Juvenile Justice Act,2015, is to call the helpline number 1098, contact the district Child Welfare Committee or District Child Protection Unit, or contact the police, who would then take on the responsibility of these children through correct legal mechanisms. There are around 600 Child Welfare Committees in different districts across the country with stationed ground crews. The CWC is a five-member committee, delegated to conduct a social investigation of an orphan after ensuring she is in need of protection and assistance and to settle orphans in prospective homes or specialized adoption agencies or foster care and sponsorship. The committee is given a total time of 2 months to ascertain if a child is fit for adoption, if she is, the committee shall match her with a Prospective Adoptive Parent (PAP).

More so, people have been cavalier enough to attach personal details of these children, along with photographs, etc. This practice violates the Right to Privacy of children, and could also attract the wrong audience with latent motives. Under section 363 of the Indian Penal Code (Punishment for kidnapping), such an act of taking custody of children and pleading adoption can be punishable. It is moreover, horrifying to note that netizens who have been spreading the social media thread have not been able to realize the “for sale” nature of such an act. A scourge individual could choose to adopt a child through these posts and then abandon her, or sell her off, making this practice more inhumane, thereby disposing of innocent children.

This act might seem to have come to our knowledge only recently, however, according to the data released by Childline India Foundation, child trafficking has experienced a sudden rise during the lockdown. Another 15% surge has been noticed between April and May this year.

The correct manner of child adoption has been enlisted in the Juvenile Justice Act, 2015 (amended in 2021), such an act being propelled by social media is entirely illegal under the ambit of JJ Act. This Act ensures the protection of children against child trafficking and child labor, which are fundamental rights under Articles 23 and 24 of the constitution. The JJ Act enumerates five pillars that are essential for child adoption, each of which is violated in the current practice. These are:

Identification of child in need of care and protection
Inquiry by authorities and awarding of temporary or permanent custody
Declaration of being “legally adopted” post inquiry
Following adoption procedure under the CARA (Central Adoption Resource Authority) Act
Follow-up for the child’s well-being

The Minister of Women and Child Development, Smriti Zubin Irani, furnished a statement warning the public to not fall prey to such illegal adoptions, moreover, state governments of Maharashtra, Delhi, and Madhya Pradesh have taken certain steps to curb this disdained act. The Kejriwal, Delhi government has announced to bear expenses of children orphaned by COVID-19. The Madhya Pradesh government has promised a compensation of Rs 5,000 per month with free education and ration. Lastly, the Maharashtra government has promised to form a task force in every district that shall ensure the protection of orphaned children.

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This article is written by K.Lasya Charitha pursuing BALLB in Damodaram Sanjivayya National Law University, Visakhapatnam. In this article, the researcher discusses the meaning, types of Injunctions, and few case laws related to injunction.

INTRODUCTION

Any appeal to the courts without remedy is futile. Anyone who goes to court for past or current injuries must first make sure to exhaust their preferred relief measures of seeking damages. If the court grants redress by ordering a specific person or a group of people to do or refrain from doing something. This repair can take several forms. In the vast majority of tort claims, the plaintiff is seeking financial compensation (damage) for the damage suffered. This fact is emphasized in the distribution or redistribution of the loss. However, in many cases, the plaintiff tried to take injunctive measures to prevent future damage in that area.

Meaning of Injunction

An Injunction is an order given by the court restraining a specific person or a group of people from doing or not doing a specific act.

The Injunction is a discretion of the court, and failure to do so may lead to contempt of court. In the past, injunctions were given only when “when the remedy at law is inadequate”.

Illustration: Suppose you have a house surrounded by trees that are hundreds of years old, and your neighbor claims that these trees are their property and plans to cut them down. While the dispute is pending, the court can issue an order of Injunction prohibiting neighbors from cutting trees until the problem is fully resolved. Otherwise, it may cause irreparable damage to the land. Money loss cannot replace trees, and the loss you deserve may be speculative.

Types of Injunction

Injunctions are divided into two categories:

Based on the times period
Based on the nature of the order

Based on the Time Period

Temporary Injunction: A temporary injunction refers to a court order for a certain period of time, that is, until the next court order. Usually, injunctions are issued early in the legal proceedings and they are regulated by the code of civil procedure, 1908.

They are granted on the basis of a prima facie case without objection until the case is reviewed and a decision is made on the matter. For example, it may be necessary to prevent fraudulent confiscation or confiscation of property or illegal confiscation of the disputed property. This can help maintain the status quo.

Order 39 of the Civil Procedure Law contains rules for taking temporary injunctions and interlocutory measures.

Circumstances where temporary injunction can be ordered

(a) If it is determined by an affidavit or other means in any legal process-the property is at risk of waste, damage, or transfer by either party to the suit, or

(b) the defendant threatens or intends to take or dispose of Property to deceive its creditors.

(c) If the defendant threatens to deprive the plaintiff of any disputed property, the court may issue a temporary injunction or through its order to protect and prevent waste, damage, alienation, sale, removal, or sale of the property. This is the subject of a legal dispute. In a legal dispute, the court considers this appropriate until the court resolves the dispute or issues a new order.

Injunction to prevent recurrence or continued breach

In any action aimed at preventing the defendant from breaching the contract or any other form of any damage, regardless of whether the claim is seeking compensation, in any case, the plaintiff can, after the commencement of the proceedings and before or after the judgment, can seek an injunction from the court to prevent the defendant from committing a breach of contract, or similar violations from the same contract or related to the same property or rights. The court may issue an injunction, according to the validity period of its order to keep records, make a guarantee, or in any other manner determined by the court.

Permanent Injunction: Permanent Injunctions can only be made based on the decisions of the oral hearing and the merits of the claims. Therefore, the defendant is permanently prevented from the assertion of a right, or from engaging in acts that conflict with the rights of the plaintiff.

If the defendant infringes or threatens to infringe or use the plaintiff’s property rights, the court may give permanent injunction indefinitely under the following circumstances:

(a) the actual damage caused or likely to be caused by the aggression has not been determined

(b) If the intrusion is such that monetary compensation cannot provide sufficient relief;

(c) When is it necessary to take preventive measures to prevent multiple disputes.

Based on the Nature of the Order

Injunctions can be “prohibitory” or “mandatory”, the former prohibits any behavior and shall comply with the provisions of section 38, while the second requires the defendant to take specific actions described in section 39. If the defendant illegally built the separation wall by infringing on the plaintiff’s land and may continue to act further. The court can order to remove the wall with a mandatory injunction and not to construct the wall any further through a prohibitory injunction.

Prohibitory Injunctions: Permanent Injunction means preventing/prohibiting someone from taking any continuous actions contrary to the plaintiff’s normal use of land or other property. The maxim Status quo ante has been followed i.e., to make whole again someone whose rights have been violated.

Mandatory Injunctions: In rare cases, the court will issue a mandatory injunction. According to this mandatory injunction, the court orders or orders someone to do an act, that is, someone has done an act to cancel it, or if an act is not done then that act to be done. The court can order individuals/companies to do such acts.

The Mareva Injunction: The Mareva injunction issued in the Commonwealth jurisdiction is a court order to freeze assets so that the defendant in the lawsuit cannot dissolve his property outside the jurisdiction of the court to frustrate the judgment. It is named Mareva Companie Naviera SA v. International Bulkcarriers SA, decided in 1975, although the first case of judgment found in British case law was Nippon Yusen Kaisha v. Karageorgis in 1975, which was made shortly before Mareva’s judgment, but in the United Kingdom, the 1998 Civil Procedure Rules now define Mareva orders as “frozen orders”.

Circumstances of Granting and Refusing Injunctions

Granting Injunctions

If any property is in dispute, and the court considers the property to be in dangerous circumstances, or that either party may damage or waste the property.
The defendant threatened or intended to dispose of or remove the property.
The defendant’s infringement must be carried out in a way that monetary compensation cannot adequately be compensated.

Refusal of Injunctions

The court cannot issue an injunction prohibiting others from taking legal action.
They cannot issue an injunction restricting any person from applying to any legislative body.
An injunction cannot be issued to prevent someone from being prosecuted in criminal proceedings.
The court will not grant an injunction to the plaintiff, if the plaintiff is not in personal interest in the case.

Few Case Laws related to Injunction

M/S Hindustan Pencils Pvt .Ltd. vs. M/S India Stationery Products: In this case, the plaintiff put forward a suit for a permanent injunction on the grounds of trademark infringement and prayed against the defendants for the performance of accounts of profit decree. Together with this claim, a preventive application of 0.39 Rr. 1 and 2 was filed for a temporary injunction against the defendants to prevent them from violating the trademark. According to the plaintiffs, they used the Nataraj brand product dated October 27, 1972, which has a Nataraj device No.260466, involving all types of pencils, erasers, pens, and pencil refills, pencil sharpeners, ballpoint pens, pens paper clip in which were adopted in 1961 and Once registered, they continued to be valid subsisting trademark registration. They learned that the defendant had secretly registered the copyright, and the label was similar to the plaintiff’s identity label in the case of pins. After reviewing all aspects of the case, the court determined that the temporary injunction prohibits the defendant from using the illegal trademark â€˜NATARAJ’ and NATARAJ devices, or the plaintiff’s trademark registration numbers 260466 and 283730 for trademark infringement with respect to stationery and other office supplies.

Rohini Sharma &others vs. Sakuntala Devi and others: In this case, the court granted the applicant unilateral and temporary injunction, but these measures were overturned by the Court of First Instance. Therefore this appeal, If the court of the first instance makes a factual error in executing the preliminary court order. This is part of the ownership declaration, and the court has the power to issue a temporary injunction under Order 39, Articles 1 and 2, and even CCP Article 151. The relief was completely discretionary. The interim injunction requested by the complainant depends on a declaratory sentence during the prayer process. Finally, it has been determined that the right to restrict transfer and refuse to restrict can only be exercised in the manner prescribed by the company’s articles of association. This does not violate any provisions of the law or the company’s articles of association. It is also held that ex-parte injunctions can only be used in exceptional circumstances. It cannot be said that the discretion of the following courts was so wrong that it requested intervention at that time.

The Commissioner, Bangalore Development Authority, and Anr. vs. Brijesh Reddy and Anr: In this case, the High Court permitted the appeal filed by the defendant/plaintiff against the lower court’s decision. Therefore, this appellate court: When the proposed land is acquired during the land acquisition process, does the civil court have the power to rule on the claim? Is the High Court innocent to transfer the case to the first instance without reviewing any maintainability issues? By the time the acquisition process is complete, individuals who purchased the land cannot have any right to maintain the suit for injunction against the authority.

Haryana State Electricity Board vs. Hanuman Rice Mills and Others: There are two different lawsuits, and the compensation required in these two claims is different, because the first is a permanent injunction, and the second is a declaration and compensation of losses so that the Electrical Commission cannot ask for enforcement of contractual liability of the previous owner against the purchaser of the property. After a power outage, even if the same house is required to reconnect, it cannot be regarded as a consumer.

Conclusion

The grant of injunction is completely based upon the discretion of the court, and the court can consider various factors, such as expediency, the possibility of appropriate remedies, the behavior of the parties, and the ability to enforce judgments to approve or deny its application. The court can enforce certain actions by mandatory injunction. According to the injunctions, the court can order the demolition of illegal highway buildings or stop activities that cause inconvenience or prohibit the making of potentially defamatory statements. So, we can say that an injunction can be used as relief for claims under torts law as we have seen in the above examples that the court can issue an injunction in various civil matters.

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