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The Department of Economic Affairs (DEA) is seeking applications for a paid internship for the fiscal year 2021-22.

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WORKSHOP DETAILS

Theme : Legal Research Writing

Dates : 29th May, 2021- 30th May, 2021

Duration : 2 hours per day including Interactive session and Q&A round [Tentative].

Speaker: Mr. Tanmay Agrawal, Asst. Professor of Law at Jagran Lakecity University, Bhopal & PhD Scholar (Law and AI).

Tanmay Agrawal is an Assistant Professor of law at Jagran Lakecity University, Bhopal and is now pursuing PhD in ‘Artificial Intelligence and Intellectual property law’. He had earlier done BBA-LLB from National Law University, Odisha and LLM from Gujarat National Law University, Gandhinagar submitting his dissertation on ‘Character Copyrighting in the Entertainment Industry’. He has various research publications to his credit and has attended over 30 National and International conferences. He has been invited to adjudicate moot court/ client counselling competitions. Apart from he had been an youth legal advisor and Indian delegate at Conferences working on United Nation’s Sustainable Development Goals and had been an awardee at World Youth Summit.

TOPICS COVERED

1. Fundamentals of Legal Research
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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 laws regarding the possession of arms and ammunition by individuals in India along with special emphasis on key provisions of the act.

INTRODUCTION

The Arms Act, 1959 deals with acquisition, possession, manufacture, sale, import, export, licensing, and transport of arms and ammunition. The act is divided into six chapters with the purpose of restraining the manufacturing and use of illegal weapons and to deter violence that might occur from the use of these illegal weapons. The objective of the act as enshrined in its preamble is “to consolidate and amend the law relating to arms and ammunition”. The act makes carrying of arms and ammunition without a valid license a criminal offence.

The Arms Act during the British Rule

After witnessing the revolt of 1857 against the British administration, Lord Lytton passed the Indian Arms Act, 1879. According to this act, Indians were prohibited from keeping in their possession any arms without a valid license. Interestingly, the act was applicable only to Indians and none of the British residing in India. The reason behind this was to put down any possible rebellion by Indian revolutionaries.

Important Definitions under Section 2 of the Act

The definition of ‘license’ was incorporated in the act through an amendment in 2019. In the Arms Act, 1959 , in section 2, after clause (e), clause (ea) has been inserted which states the following:-

“licence” means a licence issued in accordance with the provisions of this Act and rules made thereunder and includes a licence issued in the electronic form.

The clause (f) of section 2 of The Arms Act, 1959 states that “licensing authority” means an officer or authority empowered to grant or renew licences under rules made under this Act, and includes the Government.
The clause (h) of section 2 of The Arms Act, 1959 states that “prohibited ammunition” means any ammunition containing, or designed or adapted to contain, any noxious liquid, gas or other such thing, and includes rockets, bombs, grenades, shells, missiles, articles designed for torpedo service and submarine mining and such other articles as the Central Government may, by notification in the Official Gazette, specify to be prohibited ammunition.
The clause (i) of section 2 of The Arms Act, 1959

defines “prohibited arms” as—

(i) firearms so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty, or

(ii) weapons of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing, and includes artillery, anti-aircraft and anti-tank firearms and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms.

Section 3: License for a Acquisition and Possession of Firearms and Ammunation

This section states that—

No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.

The sub-section also states that a person who does not hold a licence himself may carry any firearm or ammunition under the written authority of the holder of the licence for repair or for renewal of the licence or for use by such holder.

This sub-section has been amended by The Arms (Amendment) Act, 2019 and states that no person, other than a person referred to in sub-section (3), shall acquire, have in his possession or carry, at any time, more than two firearms and if a person possesses more than two firearms at the commencement of the Arms (Amendment) Act, 2019, he shall keep any of the two arms of his choice with him and deposit the rest with the officer in charge of the nearest police station or with a licensed dealer within a period of one year. If the person belongs to armed forces then he must deposit the remaining firearms in the unit armoury and after which it shall be delicensed from the ninety days of the expiry of the aforesaid one year.
Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice.

Section 25: Punishment

Sub-section (1) of section 25 states that whoever, manufactures, obtains, procures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.

Rachelle Joel Oseran v. The State of Maharashtra & Ors. [Criminal Writ Petition No. 323 of 2017]

The petitioner was a citizen of Israel. She came to India for an educational trip with her friend and travel agent named Miss Hillary Weiss. The petitioner was lent a bag from Miss Hillary to keep the stuff, and the bag that Miss Hillary gave to the petitioner belonged to Hillary’s husband, Mr Dani Weiss, who served in the Israeli Army. When the luggage underwent the scanning process, a live cartridge was found in the baggage, after which she was arrested and taken to the police station.

The Bombay High Court observed that the essential conditions under the section 3 and section 25 of the Arms Act, 1959 is the conscious possession of the arm. The petitioner was held not guilty on the ground that the petitioner had no knowledge of the cartridge which was found in her luggage.

REFERENCE

1.https://www.google.com/url?sa=t&source=web&rct=j&url=http://legislative.gov.in/sites/default/files/A195954_0.pdf&ved=2ahUKEwi708Wu7rzwAhWX63MBHYCHAuIQFjAJegQIIhAC&usg=AOvVaw16Gm9VymJ5yc9p62armgxD

2.https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.mha.gov.in/sites/default/files/ActAndRuleThe%2520ArmsAct_17122019.pdf&ved=2ahUKEwixzZ6Q7rzwAhWEheYKHRmmA-cQFjADegQICxAC&sqi=2&usg=AOvVaw1Le3qs01kvj5vTkYe1_dqI

3. https://indianlawportal.co.in/rachelle-joel-oseran-v-the-state-of-maharashtra/

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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 overtime work policies and laws in accordance with the Labour Law.

INTRODUCTION

Overtime implies as the time spent working more than the normal or regular working hours which, in India, is supposed to be 8 – 9 hours per day and 48 – 50 hours per week, which depends upon the organization a person is employed with. If an individual works for longer than the normal hours of working, that person will be eligible to obtain and receive remuneration for the excess working hours, which will be twice the normal wage of that individual.

Several statutes in India regulate overtime and overtime payment laws. Also, various legal acts do provide for individually distinct periods of hours of working. Though, the working hours which are mentioned and prescribed under the Factories Act, is carried as a standard period of working hours. Section 51 of the Factories Act, 1948 states that employees are not intended to work for more than 48 hours in a one week, and according to section 59, employees are not intended to work for not more than 9 hours in a day. The time worked by an individual which is in excess of these 48 hours per week and 9 hours in a day will be considered as overtime work under the Act and will involve the employer to pay the workers twice the normal wage.

Provision under Labour Laws for Working Overtime

Factories Act, 1948: Section 51 of the Factories Act, 1948 states that employees are not intended to work for more than 48 hours in a one week, and according to section 59, employees are not intended to work for not more than 9 hours in a day. The time worked by an individual which is more than 48 hours per week and 9 hours in a day will be considered as overtime work under the Act and will involve the employer to pay the workers twice the normal wage.

Mines Act, 1952: Sections 28 to 30 of this Act states that no individual who is working in a mine is permitted to work for more than 10 hours per day, which is inclusive of overtime.

Minimum Wages Act, 1948: Section 33 of the Act states that the overtime wages must be twice the individuals normal wage rate. This implies that the employer can take up to a total of 9 hours of work in 12 hours shift in a day. But the employer must pay double for an hour or a part of an hour of the authentic work in excess of 9 hours or more than 48 hours in a week. Section 14 specifies that any employee or worker whose minimum rate of wage is set according to the time periods, such as hour, days or a week, and if that individual works more than the normal number of hours, it is then deemed to be overtime work. If the number of hours that represent a normal working day surpasses the required limit, then the employer must pay him the overtime rate for every such hour or part of an hour in which he has worked.

Beedi and Cigar Workers Act, 1966: Sections 17 and 18 of this Act are related to the working hours. It is stipulated that working hours inclusive of the overtime work, should not surpass 10 hours a day and 54 hours a week.

Contract Labour (Regulation & Abolition) Act, 1970: Rule 79 of this Act states that it is compulsory for every contractor to retain and form a register of overtime work covering all information concerning the calculation of the overtime work, total number of hours of extra work done, the name of the worker etc.

Building and Other Construction Workers (Regulation of Employment Service) Act, 1996: Sections 28 and 29 of this Act implies that workers who work overtime will be given overtime wages at a rate which is twice the existing wage rate.

Working Journalist (Conditions of Service) and Miscellaneous Provisions Act, 1955: Rule 10 of the Act implies that a journalist who works during the day for more than 6 hours per day and more than 5 and a half hours at night shall be compensated with rest hours which will be equal to the hours that person has worked overtime.

Plantation Labour Act, 1951: Section 19 of the Act states that where an adult worker works in any of the plantation during the day more than the number of hours that establish a normal working day or for more than 48 hours in a week, that person shall be permitted to twice the rate of ordinary wages for such overtime work. Providing that no such individual is allowed to work in a day for more than 9 hours and more than 54 hours a week.

Overtime Laws for Women and Children

The Factories Act, 1948 has restricted the working hours for women between 7:00 pm to 6:00 am, which can be eased by the Chief Inspector of those factories in some instances. If this kind of easing of specified hours of working surpasses the standard period of working hours, the employees will be entitled to receive compensation for that overtime work. Also, this respite is still very time sensitive, which means that women cannot be compelled to work between the time period of 10:00 pm to 05:00 am.

Section 75 of the same Act states that no child who is below 14 years of age can be hired or employed in any factory. A child who is above 14 years of age is eligible for employment in a factory, but cannot be permitted to work for more than 4 and half hours per day and cannot work between the time period of 10:00 pm and 6:00 am. Furthermore, a female child is not permitted to work in any of the factory, with the exception of between 8:00 am and 7:00 pm.

Work Hours for Young Workers

According to the Factories Act, 1948, A young individual is described as “child” or “adolescent” “(a person who has reached the age of 15 but has not reached the age of 18)”. This implies that a child whose working hours are limited to 4 and a half hours per day. It also specifies that the spread over should not surpass 5 hours. Though, the condition of the Act asserts that female child workers are forbidden from working between the time period of 7.00 p.m. to 8.00 am. According to the ‘Minimum Wages Act, 1948’, the number of hours of working for adolescents is determined by the medical expert as authorized by the government, which decides and chooses to contemplate adolescents as either adults or children. Nonetheless, the child should not be permitted to work for more than 4 and a half hours per day.

Workdays and Break Period

The Factories Act, 1948 states that the weekly holiday which falls on the first day of the week, which is either a Sunday or maybe any other specific day, as may be authorized in writing by the Chief Inspector of the Factories, is needed for a specific area.

Section 52 mentions for the replacement of any weekly holiday so as to meet the conditions of this section, employees may be permitted to work on the day of that weekly holiday. The proviso also states that compensatory holiday is permitted instead of a revealed weekly holiday.

The provisions of the Factories Act, 1948, a rest period of approximately half an hour should be provided in such a manner that no working time surpasses 5 and half hours. In accordance with the Minimum Wages Act, the working day of any adult worker will be assessed in such a manner that it shall not go beyond a time limit of 12 hours per day, inclusive of the interval of rest.

New Labor Laws for Employees Regarding Overtime

Recently in 2021 itself, The Ministry of Labour is planning to execute the new Labour Law in the following financial year. The process is ongoing to complete it. After this new law is executed, a series of better rules will begin in the country’s labour market. Alongside this, the government has also been trying to clear out the doubts that have surfaced due to the new labour laws.

According to a report the government may alter the existing time threshold of overtime under the new Labour Law and working for more than 15 minutes past the scheduled hours will be deemed as overtime. Companies will have to pay the employees for overtime hours of work.

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This article is written by APURVA, a student of the Fairfield Institute of Management and Technology, GGSIPU. This article deals with the topic of Mediation, a mechanism of ADR.

ABSTRACT

In India, ADR- Alternative Dispute Resolution encompasses various methods of settling disputes outside the traditional judicial system. It mentions various methods, such as, arbitration, mediation, negotiation, conciliation, etc. An Alternative Dispute Resolution is an upshot of all such issues which are faced by the public constantly in the litigation. It is like a proxy to the traditional methods of resolving disputes. The mechanisms of ADR mainly focus on resolving disputes of the parties in the minimum time unlike Litigation. It is an option to resolve their issues without an interference of the court. But these mechanisms of ADR have some pros and cons. This article mainly focuses on one of the ways, i.e., Mediation, its position in India and the advantages and disadvantages of that.

Keywords: ADR, Mediation, Litigation, Advantages and Disadvantages

INTRODUCTION

Rule 4 of the Civil Procedure – Alternate Dispute Resolution Rules, 2003 (ADR Rules) defines mediation by stating that:

‘Mediation’ means the process by which a mediator appointed by parties or by the Court, as the case may be, mediates the dispute between the parties to the suit by the application of the provisions of the Mediation Rules, 2003 in Part II, and in particular, by facilitating discussion between parties directly or by communicating with each other through the mediator, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasizing that it is the parties own responsibility for making decisions which affect them.

In India, Mediation is a voluntary process in which the disputing parties mutually decide to find a solution to their legal issue by appointing a mediator and entering into a written contract. The mediator acts as a buffer to bring them to an understanding but the decision-making powers remain with the disputing parties. To represent the parties before the mediator and explain the situation in a professional way they can hire ADR lawyers. A mediator can be anyone of any designation and can be appointed formally or casually depending on the wish of the parties, but an Arbitrator needs to be formally appointed either in advance or at the time of the need.

In India, Mediation is divided into two categories as follows:

1. Court referred Mediation:
Under Section 89 of the Code of Civil Procedure, 1908, the court may refer to a pending case for mediation in India This type is frequently used in Matrimonial disputes, particularly divorce cases.

2. Private Mediation:
Corporates, general Public, anyone from courts as well as the government sector can appoint a Private mediator. In Private Mediation, the mediator is qualified personnel who works on a fixed-fee basis.

Principles of Mediation

Mediation has 5 basic fundamental principles which are followed strictly by a mediator as well as the parties for an effective outcome. They are:

Parties should participate voluntarily

It is in the hands of the parties to decide whether they want their dispute to be resolved by a mediator or they want to go to a court. Both the parties decide voluntarily, and It is necessary that no one should force them to mediate.

Confidentiality matters in the process

Every discussion and information given during the mediation shall be kept confidential unless there is a criminal intent or act that involves harm to self or others. And the information provided cannot be used in the court proceedings neither by the mediators nor a court can ask why the mediation did not work.

Mediators are impartial

The mediator should observe all the principles of mediation and consider only matters of procedure and must act impartially and neutrally. He. He should not comment, value judgments, nor give advice or suggest solutions.

An agreement has to be settled with the satisfaction of parties concerned

The process of mediation can only be initiated if there is an agreement between the parties. Mediation cannot be started without the consent of both the parties intending to resolve the dispute. A mediator should know how to explain the advantages of such dispute resolution to the parties, so that they themselves voluntarily agree to be part of such process. A party may at any time withdraw their participation according to their discretion and then transfer the case to the judge. A mediator can interrupt mediation if he feels that the parties have turned away from the solution or that they are even more opposed than they were at the start of mediation.

Mediation is without prejudice to other procedures

Mediation is only meant to resolve issues between parties and not prejudice them.

Mechanism of Mediation

“Mediation” is a well-known term in International Law. The process of mediation may include several stages. They are:

opening statement
opening statements of the parties
summarizing and agenda
exploration of issues
private sessions or caucuses
joint negotiation session
agreement

Practitioners in this field adopt their own preferred styles and they differ in their basic steps. It completely depends upon the nature of the dispute. In this process the mediator gets the opportunity to locate the points of differences and the areas of controversy and then help the parties to overpass the gap between them. The mediator should be neutral to both the parties. The neutrality of the mediator is similar to the neutrality of a Judge, but the role is completely different from that of a Judge. The mediator is not supposed to either deliver a judgment or dictate the terms of the agreement to the parties.

Why Mediation is Effective?

The following points are advantageous for the effectiveness of the ADR mechanism of Mediation:

Informality – The mechanism of mediation is informal by nature as it does not involve any court rule or legal precedents. No rights are vested in the hands of the mediator to impose his decisions upon the parties, rather, the solution rests with the parties themselves. Parties can look to develop their own creative solutions to resolve their issues and disputes.
Privacy and confidentiality – The conference in a mediation takes place in a private setting, such as, a conference room at any of the Arbitration Associations as it is not a matter of public record. Its privacy and confidentiality are maintained.
Time and cost savings – Generally, mediation lasts a day and in complex issues it may require more time due to highly technical issues or the involvement of multiple parties. Mediation requires no formalities unlike litigation which results in substantial costs savings.
Control – All the control is vested in the hands of the parties over their participation in mediation. Parties can decide to terminate their participation at any point in mediation and the mediators help them to maintain control over the negotiation.

CONCLUSION

The development of an ADR mechanism of Mediation is a feasible alternative to litigation but, in India it is still in the impending stage. There is always a need for policies and strategies for an effective implementation. The process of mediation is frequently used by the public but proper implementation lacks. The high courts need to set up more mediation centres and some particular sector of cases should be given to them by the courts.

Although, some mediation centres have been set up by a few industries and trade associations, and some professional lawyers have attempted to develop to full-fledged professionals with expertise in the mechanism of mediation, but these instances are sporadic and irregular in nature, so, the overall perspective of mediation still remains to traversed and looked upon. To achieve a high-level acceptability of the process of mediation, we need to focus upon several issues like development of awareness, building capacities, institutional framework, advocacy, and actual framework.

And let us make an ADR mechanism of Mediation a mainstream, rather than just being a less travelled road in India.

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Vanshika Arora, is a first-year B.A.LL.B student at the Army Institute of Law, Mohali. This article intends to briefly describe the history, evolution and development of Labour Laws in India.

INTRODUCTION

Labor laws, also called employment laws are a domain of laws that deals with the relationship of the employee and employer, along with the rights of both parties involved. This sect of law rules precedents and administration of a relationship with two parties wherein one is working for the other in exchange of some consideration. It also provides a link between laborers and the government. Essentially, labor laws deal with industrial relations such as trade unions, collective bargaining and unfair labor practices; workplace health and safety standards; and employment standards such as wages, maternity or paternity leaves, working hours, unfair dismissal etc.

Labor laws can be broadly divided into two categories: collective labor law, that deals with the relationship between employee and employer, plus unions; and individual labor law, that deals with the minimum wage, healthy working conditions, and other rights at the workplace.

History

The Indian labor laws owe their origin to the labor movements of the 19th and 20^th century. These laws were largely a result of the industrial revolution that saw an emerging relationship with the employee and the employer, along with tumultuous revolts that had to be addressed by the government. The very first legislation introduced in regards to the labor laws was Factories Act, 1883; this law abolished child labor, limited working hours to eight in a day, initiated overtime working wages and introduced safe working conditions for women.

On an international level, labor rights were first given global recognition through the enactment of ILO (International Labor Organization), established in 1919, by the League of Nations, after the end of World War I. On 29^th October, 1919, ILO adopted first six conventions on the labor laws, which dealt with hours of work, unemployment, maternity leave, night work for women, minimum wage and night work for young people. India has ratified 6 conventions of ILO, this binds India to abide by them at the international and national forums.

Subsequently, The Trade disputes Act, 1929 became the earliest legislation that governed the relationship between employee and employer.

Originally, the Trade Disputes Act and The Factories Act, were a result of British Colonial Interests guided by British Political economy and trade. Each of the two laws had provisions to promote profitable British trade. Hence, post independence legislators deemed fit to accrue Indian laborer and employer’s interests by altering these laws to include fair wage and fair working conditions.

Constitutional Provisions Governing Labor Laws

Labor Laws fall under the concurrent list, meaning both State and Center can make laws on the matters relating to labor. Chapter III, articles 16,19,23 and 24 along with Chapter IV, articles 39,41,42,43,43A and 54 deal with the matters of labor law. Entry 24, 25, 55, 65 and 66 of the concurrent list contain provisions in regards to labour laws.

Evolution of Labor Laws in India

Only until recently, labor law legislations in India were scattered to be 40 at central level and 100 at the state level. Broadly, they could be categorized into:

Acts administering working conditions: Factories Act, 1948; Shops and Commercial Establishment Act, 1961; The Contract Labor (Regulation and Abolition) Act, 1970.

Acts safeguarding social security: Employees’ Provident Fund Act, 1952; Workmen’s Compensation Act, 1923; Employee’s State Insurance Act,1948.

Acts providing for wages and remuneration: Payment of Wages Act,1936; The Minimum Wages Act,1948.

Acts providing security of employment and labour relations: Industrial Disputes Act, 1947; Industrial Employment Standing Order Act, 1946.

Most recently, in 2019, the Central government attempted to amalgamate these laws into a simpler, more comprehensible legislation. This was also suggested by the second National Commission (2002), which found the umpteen laws archaic and complex. In an attempt to codify and consolidate 29 central laws, 4 bills were introduced in the parliament, and only Wages Code Bill was passed in 2019. In September 2020, all erstwhile laws were replaced by the other 3 main legislations introduced, namely:

Industrial Relations Code Bill, 2020

This law combines Industrial Disputes Act,1947; Trade Unions Act,1926; and Industrial Employment (Standing Orders) Act, 1946. This law aims to include provisions for emerging forms of labor, like the gig economy. Earlier, many laws at the centre and state level attempted to define terms such as “employee”, “employer”, “wages” etc, this law attempts to produce a single definition aiming for uniformity. It also attempts to expand the definition of strike to include concentrated leave of more than 50% workers on a given day or days.

Code on Social Security Bill, 2020

This bill amalgamates 9 different laws and primarily recognizes unorganized sector workers. It defines an aggregator, gig worker, unorganized worker etc. It increases Employees’ Provident Fund to every establishment with more than 20 employees. It provides that maternity benefits shall apply to every establishment with 10 or employees. It also provides for the establishment of social security bodies to effectively implement social security regulations.

Occupational Safety health and Working Conditions Code Bill, 2020

This law amalgamates 633 provisions of 13 central legislations, into a single code. This code aims to lay down security and health related measures for those working in hazardous industry, such as mines, factories, construction and dock work, etc. It largely defines, contract labor, hazardous process, wages, certain rights of the employee and duties of the employer. Moreover, it lays down provisions for health, safety and working conditions and recognizes interstate contract laborers and migrant workers under the ambit of employees.

Conclusion

The three codes on one hand are revolutionary in the sense that they have optimized labour laws administratively and have done away with many complexities in the literature and the machinery of the umpteen statutes that existed before. However, on the other hand, these codes are being criticized highly for having set a precondition for workers that wish to strike. (that is a sixty day prior notice). This precondition is seen to be problematic under the constitutional right to strike. Moreover, through these codes, the threshold of standing order has been increased from 100 to 300 employees, giving immense unfair freedom to employers in terms of the hiring and firing process.

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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 various definitions and evolution of law of torts.

Origin of the term ‘Tort’

The word ‘tort’ is French equivalent of the English word ‘wrong’. The term has been derived from the Latin word ‘tortum’ which means ‘twisted’ or ‘crooked’. Therefore, tort essentially means a civil wrong or a wrongful act, which is either intentional or accidental and results in injury or harm to another who in turn recourse to civil remedies for damages or court order or injunction.

Definition of the term ‘Tort’

There is no comprehensive definition of tort but over the many years, several jurists have attempted to give a workable definition of the term ‘Tort’. The two categories under which these definitions fall is as follows:

Definition of Tort in Relation to Breach of Contract

Salmond says: “ A tort is a civil wrong for which the remedy is an action for unliquidated damages and which is not exclusively the breach of a contract, or the breach of a trust, or the breach of other merely equitable obligation. ”
Clark and Lendsell say: “ Tort is a wrong independent of contract for which the appropriate remedy is a common law action. ”
Underhill says: A tort is an act or omission which is unauthorized by law, and independent of contract.
1. infringes either
  - Some absolute right of another; or
  - Some qualified right of another causing damage; or
  - Some public right resulting in some substantial and particular damage to some person, beyond that which is suffered by the public generally; and
2. Give rise to an action for damages at the suit of the injured party.

Section 2(m) of The Limitation Act, 1963 defines: “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.”

Based on the above-mentioned definitions, it can be concluded that three distinct features are essential to constitute a tort. These features are:

Tort falls under the classification of civil wrong.
A tort is other than a breach of contract of a breach of trust; and
The wrong can be redressed by an action for unliquidated damages.

Definition of Tort in Terms of Breach of Legal Duty or Infringement of a Legal Right

Fraser says: “A tort is an infringement of right in the rem of a private individual giving a right of compensation at the suit of injured party.”
Pollock says: “Every tort is an act or omission which is related to harm suffered by a determined person.”
Winfield says: “Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”

On the basis of these definitions, it may be concluded that the following conditions must be fulfilled in order to hold a person responsible in tort:

There should be breach of a duty;
This duty should be essentially fixed by law;
This duty should be towards persons generally; and
Remedy should be available in the form of unliquidated damages.

Evolution of Law of Torts in England

The main source of the law of torts is the common law. This means that law of torts is based on decided cases and owes its development to the activity of thee judges.

Before 1852

Until the mid 19th century, the question which arose when a plaintiff sued a defendant for some alleged enquiry was “ Has the plaintiff any form of action against the defendant and if so what form? ” If he could not fit his claim into one of the recognised forms of action, he had no legal grievance. An action was usually commenced by a writ issued from a government department. The plaintiff had to choose the most appropriate writ and pay for it. If he purchased a wrong writ or he could not fit his claim in one of the recognised ‘forms of action’ his suit was dismissed . The maxim at that time was ‘ubi remedium ibi jus’ which means where there is no writ, there is no right.

After 1852

The Common Law Procedure Act, 1852 and the Judicature Act, 1872 abolished the recognised framework of ‘forms of action’. Now the remedies are given for the damages suffered by the aggrieved party based on his right, not on whether they can be fitted into an established framework. In today’s times, the maxim is ‘ubi jus ibi remedium’ which means where there is a right, there is a remedy. A leading case in this reference is Ashby v. White (1703) 2 Ld. Raym. 938. In this case, the plaintiff was a valid voter at a parliamentary election. The defendant, the returning officer at the voting booth, wrongfully prevented the plaintiff from exercising his voting rights. Now, there was no loss, monetary or otherwise, suffered by the plaintiff as even the candidate, for whom he wanted to vote, won the elections. Still the plaintiff succeeded in his action against the defendant for a simple reason that the plaintiff’s right was violated. This case significantly contributed to the development of law of torts by establishing the principle ‘ubi jus ibi remedium’.

Evolution of Law of Torts in India

The Indian law had a much narrower conception of the law of torts than the English law of tort. In India, emphasis used to be on ‘punishment for crimes’ and not on ‘compensation for wrongs’. Gradually, with the advent of the modern era, the process of development of the law of torts started in India. The rules of law of torts in India are based on the common law of England.

Before Independence

During the 18^th century, the British administration established the Mayor’s Courts in India. These were established in the three presidency towns of Calcutta, Bombay and Madras. The Charter of 1726 introduced English Common Law and Statutory law in India for the first time. As a result, the law of torts, which is a branch of common law, was introduced in the courts of Calcutta, Madras and Bombay.

After Independence

The same rules of law of torts continued to be used in India even after Independence. Even today, the Indian law of torts is significantly influenced and shaped by the English common law system. However, the Indian courts are not bound by the English common law in the sense that the courts determine the appropriateness of English law before applying a particular rule to Indian case.

This happened in the landmark case of M.C. Mehta v. UOI (1987) 1 SCC 395 wherein the Hon’ble Supreme Court of India introduced the principle of absolute liability in place of strict liability which was established in the famous case of Ryland v. Fletcher (1868) LR 3 HL 330 so as to deal with issues arising in a modern industrialised economy. In the case Ryland v. Fletcher, the defendant employed independent contractors to construct a reservoir on his land to provide water for his mill. There was negligence on the part of contractors that they didn’t block the mine shafts which they came across while constructing the reservoir due to which water flooded plaintiff’s coal mine resulting into damage to the mines of the plaintiff. It was found as a fact that the defendant did not know about the shafts and had not been negligent. Justice Blackburn J. held the defendant liable by introducing the concept of strict liability and hence observed: “The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. Therefore, strict liability doesn’t take into account the intention or carelessness of the defendant, when the defendant caused the injury.

The facts of the famous case of M.C Mehta v. UOI were as follows: In 1985 in Delhi, a factory of the Shri Ram foods and fertilizers industries leaked Oleum gas that killed one person and had few others hospitalised and created huge panic among the residents. The then Chief Justice of India P.N Bhagwati held : “ We are of the view that an enterprise, which is engaged in hazardous or inheritance cli dangerous industry, which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding area, owes an absolute and non delegable duty to the community to and sure that no harm results to anyone on the account of hazardous activity in which it is engaged and it must be conducted with the highest standards of safety and if any harm is done on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. ”

The doctrine of strict liability has many exceptions while the doctrine of absolute liability is not subject to any exceptions.

CONCLUSION

Tort law has grown into a powerful and independent branch of law over the period of many years. But it can be seen that the development of tort law has been more significant in the developed countries like England, America and Canada, in comparison to developing countries like India. It is observed that the development of the law of torts in India has been slow due to several reasons. Some of the reasons include illiteracy, lack of proper knowledge of one’s rights, poverty, expensive judicial system and uncodified tort laws. Nevertheless the importance of the law of torts has been increasingly recognised across the globe, so as to protect the interest of individuals rather than to punish certain categories of the wrongdoer.

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This article is written by Kalyani Gupta, a Master’s in Law student from Amity University, Noida. This article discusses about the doctrine res judicata and how it is applied in Indian Law.

INTRODUCTION

Section 11 of the Civil Procedure Code, 1908 defines the doctrine of Res Judicata. It implies that if any issue or matter is already judged then no court of law will have the power to try any new suit or disputes which has been previously resolved in the earlier suit between the same parties and there is no pending appeal before any court, the court in this case has the power to dispose of that case by granting a decree of Res Judicata.

This doctrine is established on the grounds that if the issue or matter is already resolved by the competent court then no one will have the rights to reopen it with the following suit. It also presents the inevitability of the judgments regarding the points decided, in each subsequent suit between the same parties. The doctrine of Res Judicata is used by the court where the issues are directly and significantly involved between the same parties in the previous and the present suit, are identical.

For example: ‘A’ has sued ‘B’ because he failed to pay rent. ‘B’ requested for the reduction of rent on the ground as the vicinity of the land was lesser than what was stated on the lease.

The Court discovered that the area was larger than indicated in the lease. The area of the land was surplus and the principle of res judicata cannot be applied in this situation.

In a case, ‘A’ new suit was filed according to which the defendants requested the Court to reject the lawsuit with a plea of the doctrine of res judicata. She was prohibited from making a claim of res judicata because her earlier claim was rejected for fraud. The Court stated that the defense of res judicata can be applied only when it is proved by evidence.

Conditions

There should be two suits – One previous and the other is the subsequent. Former suit implies a suit, which was previously decided. It is not essential to know when the suit was instituted. What matters is when the decision was pronounced from the court.

Matter directly and significantly in the following suit – It implies that the issue must be directly associated with the suit. It should not be collateral or incidental to the stated issue.

There must be same parties in the suits – Parties are the people whose names are mentioned on the record when the decision is passed, and a party may also be a person who has interfered in the suit.

Litigating under the identical title – This means that the parties to the following suit must have had litigation under the same title in the previous lawsuit.

Competency of the Court – In the following suit, it is essential that the court which has tried the previous suit must have been competent to try the subsequent suit.

Finality – When the competent court has applied its judicial mind and has, after the arguments and deliberation, come to a verdict on a disputed matter

Principle Of Res Judicata

The principle of res judicata promotes the fair management and administration of justice and morality and to stop the law from exploitation. The principle of res judicata is applied when a complainant attempts to file a subsequent suit on the same issue, after having obtained a decision in a preceding case which involves the same parties. In several jurisdictions, this doctrine can be applied not only to the particular claims made in the former case but also to those claims that could have been rendered during the same case.

Pre- Requisites of Res Judicata

A legal decision by a competent court or tribunal
The decision is final, and binding and any judgment made on the facts and merits
A fair hearing by the court
Whether the earlier judgment is right or wrong is not important

Nature and Scope of Res Judicata

Res judicata comprises of two notions which are – claim preclusion and issue preclusion. Issue preclusion can also be called collateral estoppel which states that parties cannot sue each other after the final decision in the first case has been made on the basis of merits. For example, a plaintiff loses a case alongside the defendant in a case say ‘A’, now the plaintiff cannot possibly sue the defendant again in case ‘B’ on the basis of the same facts and reasons. Plaintiff cannot sue even in a separate court with the same stated facts. Whereas the concept of issue preclusion forbids the relitigating issues of law that have been previously determined by a judge as part of an earlier suit.

The doctrine of res judicata has its roots on the following three maxims[i]:

‘Nemo debet bis vexari pro una et eadem causa’ – No man should be
‘Interest reipubliace ut sit finis litium’ – It is in the interest of the State that there should be an end to a litigation
‘Res judicata pro’ – a judicial decision must be accepted as correct.

This doctrine is established on the principles of equity, justice, and good conscience and is applied to all civil and criminal proceedings and similarly to all quasi-judicial proceedings which are held before tribunals. Section 11 of the Code is applicable on both plaintiff and defendant related to a suit.

The scope of this doctrine has been decided in the case of Gulam Abbas v. State of Uttar Pradesh[ii]. The court in this case featured the rules as proof or evidence as a plea of an issue previously tried in the former case. The judgment of this case was tricky and difficult as the judges must apply the doctrine of res judicata. It was then decided that res judicata is not extensive and even if the issue is not clearly or directly included under the provisions of the section it will be deemed as a case of res judicata based on general principles.

Applicability and Non-Applicability of this Doctrine

Public interest litigation: The doctrine of res judicata may function in public interest litigation if the preceding litigation was a ‘bona fide’ public interest litigation, but if the former legal proceeding was not a ‘bona fide’ one, the following legal proceeding for the identical public interest litigation cannot be barred.

Writ petitions: For a long period of time, it was established that the doctrine of res judicata cannot be applied to writ petitions which are filed under article 32 and 226 of the Constitution of India. But in the case of M.S.M Sharma v. Dr. Shree Krishna[iii], the Supreme Court of India held that the principles of doctrine of res judicata can be applied even to the writ petitions which are filed under article 32 and 226 of the Constitution of India for violating the fundamental rights. The court has asserted that the principle of res judicata will specifically not apply to the writ of habeas corpus.

Criminal proceedings: It is apparent that the doctrine of res judicata can be applied to criminal proceedings because the major purpose of this doctrine is to end the litigation. The Supreme Court held additionally that once an individual is convicted of any criminal offence by a court which is competent to try such matter, he cannot be tried again for the same crime or offence.

Industrial adjudication: This doctrine is applied even to industrial adjudications. When an award is declared by the industrial tribunal, then the same issue cannot be claimed before the tribunal again. This is also extended to those cases filed under labor courts.

Taxation matters: This doctrine is not applicable in matters related to taxation. The year-to-year liability and paying tax is separate and an independent liability.

CONCLUSION

If the multiplicity of certain proceedings is permitted for the same matter, then it will not only make the parties to the suit suffer but also will increase the responsibility and burden on the judiciary and waste the resources by conducting trials on the same issue and articulating judgement for the same. To reduce or curb these problems the doctrine of res judicata is essential to be applied in an effective and stringent manner

[i] http://www.legalserviceindia.com

[ii] 1981 AIR 2198, 1982 SCR (1)1077

[iii] 1960 AIR 1186

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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 describes the History of ADR in India, types of ADR, the Importance of ADR in India, and few case laws related to ADR.

What is ADR?

Alternate Dispute Resolution (ADR) is the process that helps parties of a suit to resolve their disputes without the intervention of any judicial institution or any trial process. This process is usually confidential, less formal, and also less stressful compared to the traditional court procedures.

The Alternate Dispute Resolution process resolves all types of disputes which include civil, commercial, family, and high profile labor disputes, etc., where the parties will not be able to negotiate and reach a settlement.
ADR process uses third parties to help and communicate between both parties and reach a conclusion. These are often collaborative and help the parties to understand each other easily.
Generally, the ADR process comes out with creative idea solutions that the traditional courts may not be legally allowed to impose.
The ADR process gives the opportunity to the parties to maintain co-operation, social order and helps to reduce hostility.

History of ADR in Ancient India

Dispute resolution through ADR is inherently built into Indian culture. Since the Vedic period, the indigenous peoples have not used opposing methods to resolve their disputes. Yajnavalkya and Narada found that the courts of Kula, SRENI, and Puga had settled disputes in ancient India. Disputes between family members, communities, castes, or races and tribes were settled using these methods. The SRENI was a court composed of trade experts that helped traders resolve their trade disputes internally. Puga was a court made up of people who belonged to several parishes, but from the same place as Panchayat, these courts followed a simple decision-making process. The Kula decision can be challenged before the SRENI and the SRENI decision before Pradvivaca. and the final calling was allowed to the king. These courts had made decisions about the interests of the party and the community.[i]

Functions of ADR

Reduce the workload of the courts, which has indicated that there are currently around 3.4 million cases pending in Indian courts (data from national justice data grid).
Resolving cases swiftly equates to justice by avoiding procedural delays associated with the mandatory judicial system and therefore complying with the primary right of the speedy trial division of Article 21.[ii]
As the cost and time of litigation decrease, the chances of access to justice will increase. Therefore, it fulfills its obligation to provide free legal aid to the poor under 39A.[iii]
Save the common man from the complicated and unpleasant legal process.
The ADR procedure offers discretion. Assistance in important communal matters for litigants, especially in civil matters such as divorce.
In support of authority. For example Administrative Courts, National Company Law Court, National Green Court, and others.

Some Important Provisions related to ADR

Section 89 of the Code of Civil Procedure, 1908 talks about the ” Settlement of disputes outside the court”. The contents of the said section are as follows:

“where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of the settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for :

Arbitration
Mediation
Conciliation
Lok Adalat”[iv]
Other legislations which deal with Alternate Dispute Resolution are the Indian Arbitration Act of 1899, Arbitration (Protocol And Convention) Act of 1937, The Arbitration Act Of 1940, Arbitration And Conciliation Act of 1996, Legal Services Authorities Act of 1987.

Modes of ADR in India

Arbitration

In arbitration, a neutral person called an “arbitrator” listens to the arguments and evidence of the parties, and then determines the outcome of the dispute. Arbitration is not as formal as the courts, and the rules of evidence are generally relaxed. Arbitration can be “mandatory” or “optional”. Binding arbitration means that the parties waive their right of litigation and agree to accept the arbitrator’s decision as to the final decision. Usually, there is no legal remedy against the arbitrator’s decision. Non-binding arbitration means that if the parties do not accept the arbitrator’s decision, they can file a lawsuit. The types of arbitration are Ad Hoc Arbitration, Institutional Arbitration, Statutory Arbitration, Fast track arbitration.

Mediation

In mediation, an impartial person called a “mediator” helps the parties find a solution acceptable to both parties. The mediator does not resolve the dispute but helps the parties communicate so that they can try to resolve the dispute on their own. Mediation is not binding on the parties like arbitration. The biggest advantage of mediation is that the entire process is strictly confidential. Mediation saves time and financial and emotional cost of resolving a dispute, thereby, leads to the re-establishment of trust and respect among the parties. Emotions and feelings between parties can be preserved causing minimum stress and heartache.

Conciliation

Conciliation is a form of arbitration, but it is not so formal in nature. It is a process of promoting peaceful settlement between the two parties. In this process, the parties to the dispute appoint a conciliator to meet with the two parties separately to resolve the dispute to Reduce the tension between the two parties, improve communication, and explain the problem to reach a negotiated solution. There is no need for an agreement in advance, nor can it be imposed on any party that does not seek a settlement, because this is different from arbitration in that way. However, if both parties accept the settlement document drawn by the conciliator, it shall be final and binding on both.

Negotiation

In India, Negotiation doesn’t have any statutory recognition. Negotiation is self-counseling between the parties to resolve their dispute. Negotiation is a process that has no fixed rules but follows a predictable pattern. It occurs mostly in business, NGOs, among nations, and also in personal matters like marriage, divorce, and everyday life.

Essentials of Negotiation are:

It is a communication process;
It resolves conflicts;
It is a voluntary exercise;
It is a non-binding process;
Parties retain control over outcome and procedure;
There is a possibility of achieving wide-ranging solutions, and of maximizing joint gains.

Lok Adalat

Lok Adalat is a unique system developed in India. It is also called the People’s Court and is a forum for voluntary settlement of disputes between parties through mediation and persuasive methods. This includes negotiation, mediation, and reconciliation. According to the Civil Procedure Law, the civil court has approved Lok Adalat, a tool for resolving disputes between the two parties. Any case heard in the ordinary court or any dispute not submitted to the court can be submitted to Lok Adalat. No fees are charged, and strict procedures are followed to simplify the process. If any matter is pending n the court and it is referred to the Lok Adalat and is settled subsequently, then the court fee which is paid before when the petition is filed will also be refunded back to the parties.

Advantages of Alternate Dispute Resolution

ADR has many advantages over the traditional method of litigation and some of the advantages are:

ADR is usually faster than the traditional courts and is budget-friendly.
It is informal in nature.
There is confidentiality in the process of resolution of disputes between the parties.
It is very flexible and responsive to the individual needs of the people involved in it.
It prevents further conflict and maintains a good relationship between the parties.

Few Case laws related to ADR

In P. Anand Gajapathi v. P.V.G. Raju[v], the question was whether an arbitration agreement can be entered into after a lawsuit has been filed. The parties to the case entered into an arbitration agreement during the pendency of the appeal in the court agreed to refer their disputes to an arbitrator. The court ruled that it is possible if both parties give their consent for arbitration. The phrase “subject to an arbitration agreement” does not necessarily require that the agreement must exist before the lawsuit is brought to court.

In M.V. Baltic Confidence v. State Trading Corporation of India Ltd.[vi], the Supreme Court held that the intent of the parties to enter into an arbitration agreement should be considered and the words of the clause can be overlooked if the intent is clear.
In the case of Narayan Prasad Lohia v. Nikunj Kumar Lohia[vii], the question of whether the arbitration agreement is no longer valid was raised, because according to the law, the agreement only stipulates the appointment of two arbitrators, and an odd number is required. Referees. It was pointed out that even if the parties ordered the appointment of two arbitrators, the agreement remained valid. The two judges can agree on the same thing. If there is a possibility of a tie, then in accordance with Article 11(3) Then, the arbitrators must appoint a third arbitrator as the head referee. It is also possible to appoint a third arbitrator as a preventive measure.

If the parties do not specify the number of arbitrators in the agreement, the arbitration tribunal will consist of one arbitrator by default.

In Satish Kumar v. Surinder Kumar[viii], talked about Section 35 that contemplates the finality of arbitral awards. The Supreme Court held that after the award becomes final, the rights and liabilities of the parties in respect of said claims can be determined only on the basis of the said award, thereafter, no action can be started on the original claim which had been the subject matter of the arbitral proceedings. It was held by the Supreme Court, that the award is in fact, a final adjudication of a court of the rights and liabilities of the parties, which on the face of it is conclusive upon the merits of the controversy submitted. It was further held that an award given under the Arbitration Act requires registration under section 17(1) (b) of the Registration Act if the award affects partition of an immovable property exceeding the value of Rs. 100/-.
In Puri Construction Co. v. Union of India[ix], it was held by the SC that when the court is called upon to decide the objections raised by a party against an award, the jurisdiction of the court is limited, as expressly indicated in the act and it has no jurisdiction to sit in appeal and examine the correctness of the award on merits. The Court also held that if there is no legal proposition either in the award or in any document annexed with the award which is erroneous and the alleged mistakes or alleged errors, are only mistakes of fact and if the award is made fairly, after giving adequate opportunity to the parties to place their grievances in the manner provided by the arbitration agreement, the award is not amenable to corrections of the Court.

Conclusion

In Conclusion, ADR has been proved successful in clearing the backlog cases in various levels of the Indian judiciary. Lok Adalats have alone disposed of more than 50 lakh cases every year. But there is a lack of awareness about the availability of these mechanisms. There is an urgent need for justice dispensation through ADR mechanisms. The National and State Legal Services Authorities should create awareness among the citizens of the country regarding these Alternative Dispute Resolutions so that they become the first option explored by the potential litigants. This will considerably reduce the load on the courts apart from providing instant justice to the people, without substantial costs being involved.

[i] Dr. Marisport A, Dr. Ambati Nageswara Rao, and Ms. Heena Goswami, ‘RESOLVING PENDING CASES THROUGH ALTERNATIVE DISPUTE RESOLUTION UNDER SECTION 89 OF CIVIL PROCEDURE CODE: A CASE STUDY’ (Department of Justice, 2019) <https://doj.gov.in/sites/default/files/GNLU.pdf> accessed 6 May 2021.

[ii] Constitution of India 1950, art.21.

[iii] Constitution of India 1950, art.39(A).

[iv] Code of Civil Procedure 1908, s 89.

[v] P. Anand Gajapathi v P.V.G. Raju, (2000) 4 SCC 539.

[vi] M.V. Baltic Confidence v State Trading Corporation of India Ltd, (2001) 7 SCC 473.

[vii] Narayan Prasad Lohia v Nikunj Kumar Lohia, 2002 (1) RAJ 381 (SC).

[viii] Satish Kumar v Surinder Kumar, AIR 1970 SC 833.

[ix] Puri Construction Co. v Union of India, AIR 1986 SC 777.

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

ABSTRACT

What happens when a suspect dies in custody? It conveys disgrace to our Constitution, that Constitution which is the best in the world. Such unfortunate incidents, simply raise serious allegations and questions, ‘Is it not the violation of the rights of the victims?’, ‘Are the enactment of suitable legislations, not needed?’, ‘Is the state not needed to bite back such offences?’. Although the Constitution of India guarantees various rights to ‘person in custody’ or ‘prisoners’ under Article 20 21, and 21. ‘Right against handcuffing’, ‘Right to fair and speedy trial’, and ‘Right against Inhuman Treatment by the Police’, etc. have been interpreted by the Hon’ble Supreme Court of India to be an integral part of the Constitution. But the social evil- Custodial Death is still not getting out of the scenario. This study throws the snowballs on that which aims to explain the possible ways to quell Custodial Death from the society.

Keywords: Constitution of India, Custodial Death, Legislations, Judiciary, Human Rights, Police.

INTRODUCTION

Our promising saviors, oh! Do they really are?

A very complicated and controversial topic, widely referred to as death that happens to a person under trial or has been convicted of a crime, we talk about Custodial Death in this article. It can be due to natural causes like illness or maybe due to suicide, or the fighting among prisoners, or is the brutality and torture by police happen to be the reason behind the death. It is one of the highest forms of violations of Human Rights. It is a blunt attack on the right of liberty guaranteed by The Indian Constitution.

Well, the victims are often tortured before they are taken into custody, which helps police conveniently claim that the incidents happened were not due to the custodial violence, rather they were the injuries that happened before the arrest. And, sometimes before the arrest, the victims are killed by fake encounters.

It seems hard to prove, isn’t it?

The above cluster of events are head spinning facts arising a number of questions and doubts. Hence, we will learn everything about the Custodial Death in this article.

Custodial Death

It is defined as the demise of a person in custody or a prisoner during investigation, interrogation or otherwise. It is broadly classified into three categories:

Death in Judicial Custody
Death in police Custody
Death in Custody of Army or a Paramilitary Force

Custodial Death can be due to illness or other natural causes, or may also happen due to suicide, or infighting among prisoners but in many cases, it is police torture or brutality behind the death.

Custodial Death due to police torture or brutality is one of the highest forms of violation of human rights. In the lust of power, the police make them use their power illegally and arbitrarily with immense torture and violence. This is termed as custodial violence. It is categorized into following types:

Physical Violence: The victims are often beaten violently or made to lie on ice slab or by different other methods to torture to such an extent that they feel the fear of immediate death. Different irritants like table salt and chili powder are applied on delicate parts and open wounds giving immense pain.
Sexual Violence: Rape, Sodomy, verbal abuse and targeting victim’s dignity are sexual tortures. They also affect psychologically. Rape and Sodomy also affects physically.
Mental Violence: Torturing mentally and depriving them of the basic needs like food, water, sanitation and sleep, breaking the confidence and morale of the victim, and traumatizing mentally are mental violence.

Latest Unfortunate Custodial Death: Tamil Nadu Case

On 19 June 2020, in Sathankulam, Thoothukudi district, P. Jeyaraj of 59 and his son Fennix of 31 were arrested for violating COVID-19 Lockdown rules. According to the FIR, they were arrested on an account to keep their shop open after a specified time to close as per the guidelines. They were violently tortured and sexually assaulted from almost 7 hours several times with intervals.

On 22 June 2020, Fennix, the son died of heavy internal bleeding which was confirmed by the reports of the Government Hospital, Kovilpatti and the same day, the father was admitted.

On 23 June 2020, Jeyaraj, the father died of lung puncture while undergoing treatment.

Later, the CBI charge sheet claimed that the father-son duo did not violate any rule and the forensic report of the blood stains on the walls of the police station confirmed that they were violently tortured.

Two innocent lives of a father-son duo died for no reason, but custodial violence.

Judiciary’s Role in the Entire Picture of the Custodial Death

The interventions drawn by the Judiciary regarding Custodial Death are explained by the following landmark cases:

Joginder Kumar v. State Of U.P and Others 1994 AIR 1349: 1994 SCC (4) 260

For effective social control of those elementary rights, in Article 21 and 22(1), the Hon’ble Court issued the subsequent guidelines:
1. The police officer shall inform the arrested person when he is brought to the police station of this right.

2. An entry shall be required to be made in the diary as to who was informed of the arrest.

3. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.

4. It was further directed that it shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.

J. Prabhavathiamma v/s The State of Kerala & Others WP(C). NO. 24258 OF 2007 (K) AND CRL. R.P.2902 OF 2007

The two serving police personnel were awarded the death sentence by a CBI court, after hearing the case for over a decade, in Thiruvananthapuram, over the death of a scrap metal shop worker, who the court believes was murdered in custody.
While sentencing the two, choose J Nazar had said:
“This is a brutal and dastardly murder by accused (number) one and two… The acts of the accused persons would definitely adversely affect the very institution of the police department… If the faith of the people in the institution is lost, that will affect the public order and law and order, and it is a dangerous situation.”

Munshi Singh Gautam v State of Madhya Pradesh, Appeal (Crl.) 919 of 1999

Summarizes their grief concern regarding this downside of torture in Indian prisons by police.

The supreme court explicit that:

“The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system… the concern which was shown in Raghbir Singh case more than two decades back seems to have fallen on deaf ears and the situation does not seem to be showing any noticeable change. The anguish expressed in the cases of Bhagwan Singh v State of Punjab, Pratul Kumar Sinha v State of Bihar, Kewal Pati v State of UP, Inder Singh v. State of Punjab, State of MP v Shyamsunder Trivedi and the by now celebrated decision in the landmark case of D K Basu vs. State of West Bengal seems ‘not even to have caused any softening of attitude in the inhuman approach in dealing with persons in custody’.”

Yashwant And Others v. State of Maharashtra (2018) 4MLJ (Crl)10(SC)

The Supreme Court on 4 September upheld the conviction of 9 Maharashtra cops in reference to a 1993 guardian death case and extended their jail terms from 3 to 7 years. Reportedly, a bench of Justices NV Ramana and MM Shantanagoudar upheld the order and aforesaid that incidents that involve the police tend to erode people’s confidence within the criminal justice system. whereas enhancing the sentence of the cops, the apex court aforesaid,
“With great power comes greater responsibility,”.
The police personnel were found guilty under Section 330 of the Indian Penal code that involves voluntarily inflicting hurt to extort confession or to compel restoration of property.

D.K. Basu Versus State of West Bengal (1997 (1) SCC 416)

The Court issued a list of 11 guidelines in addition to the Constitutional and Statutory Safeguards to be followed in all cases of arrest and detention. The guidelines are as follows: –

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible, and clear identification and name tags with their designation.

2. The police officer carrying out the arrest of a person must prepare a memo of arrest and it must be attested by at least one witness.

3. A friend or relative or another person, known to the arrestee or has an interest in his/her welfare shall be informed as early as possible about the arrest.

4. If the next friend or relative of the arrestee lives outside the district or town, they must be informed by the police through ‘legal aid organization’ telegraphically, within 8 to 12 hours during the arrest.

5. The arrestee must be instructed about the right to have someone informed about his/her arrest or detention as soon as he/she is put under arrest or is detained.

6. An entry must be made in the diary regarding the arrest of the person.

7. On request of the arrestee, he/she should be examined at the time of the arrest.

8. The arrestee should be subjected to medical examination within 48 hours during his detention.

9. All documents including the memo of arrest should be sent to the concerned magistrate.

10. The arrestee may be permitted to meet his lawyer during interrogation.

11. A police officer causing the arrest shall provide ‘information regarding the arrest’ and ‘place of custody’ of arrestee within 12 hours of affecting the arrest to the police control room.

CONCLUSION

To eradicate ‘a social evil- protective Death’ from society, it is necessary that folks should raise their voice together against such atrocities.
Many reforms ought to be introduced, like:
Enacting AN “anti-torture law”: There is no ‘anti-torture law’ in our country. Though the offence of protective death is charged as a criminal offence under IPC, however there is not even a definition of torture in any sculpture in our country. Thus, it’s polar to border an adequate anti-torture law in our country, that shall incorporate a correct definition of torture, punishments for the bad person and a correct redressal mechanism.
India ought to validate the world organization Convention Against Torture: It will mandate a scientific review of colonial rules, methods, practices and arrangements for the custody and treatment of persons subjected to any type of arrest, detention, or imprisonment.
Ground-level implementation: There are various laws and procedures that are already established to condense the likelihood of infringement of human rights, whereas the suspect is in custody. However, all the episodes keep turning up since there is no ground-level implementation of the procedures recognized.

But, not the reforms, a modification within the mind-set of the society is all required. Every person of the state ought to be treated equally by the others regardless of faith, caste, color. There ought to be no distinction between wealthy and poor.

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