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This article is written by Riya Chelani, a student of the United World School of Law

Introduction

Indeed, even within the wake of entering the twenty first century, we examine the death penalty in daily papers, which is merely a definitive brutal demonstration of cultivated society. Any talk on the corporal punishment brings up numerous issues from the moral, compassionate and philosophical perspectives. The arrangement of rebuffing the miscreant is exceptionally antiquated. To keep up lawfulness within the prominence discipline is important.

In Bhagwat Gita Lord Krishna says that he will revive again and again to make sure about the great and rebuff the malice. The author Rabindranath Tagore says in one in all his lyrics the individuals who fumble and also the individuals who endure wrong doing both are to be scorned. Along these lines, it’s simply to rebuff the transgressor however discipline should accord to the wrongdoing. The object of this theory is to reform someone through punishment and ultimately make him a law abiding citizen. Nowadays many of us just like the Right Honourable Justice Mackenzie support this school of thought because it is humanitarian. It is required that we must always regard even thieves and criminals as our brothers and sisters, and wrongdoing as an illness of which the last were the survivors of infection and needed to be cured execution is taken into account because the executing manages correspondence of sentence of death.
This is often the most serious kind of beating because it requires law implementation officers to slaughter the wrongdoer. The goal of the investigation is to speak about the arrangement and techniques for Execution of execution, to interrupt down the impact of capital punishment within the insurance of human rights and to look at the assertions of People with relevancy corporal punishment. In such a manner, distinctive sorts of discipline, Methods of Executing execution and therefore the executing in Bangladesh are examined. Also, contentions on executing and insurance of Human rights are examined. some issues are discovered.
The death penalty cuts down the estimation of human life and mistreats society. it’s an obstruction to the reorganization of the indicted individual. Additionally, death penalty is gadgets the consecration of human life.
It is incredibly prescribed that the indicted individual ought to lean an open door change themselves. corporal punishment must be cancelled as a capital punishment. Lifetime thorough detainment must be executed as a change slick of executing. So nobody should ever be executed, even by the state because it is against human rights. The aim of the study is whether the execution disturb the essence of reformative theory

Supporters of Reformative Theories-

Physiologist– Physiologists hold that wrongdoings are due to physiological deformity. Accordingly, the offenders ought not be rebuffed. Or maybe, they must be managed in specialist’s offices by clinicians or psycho-inspectors. That is the explanation, according to this speculation, bad behaviour isn’t a thought about show of encroachment on a piece of the crook. It’s basically a direct result of his mental instability. Criminal anthropologists hold that crooks should not be rebuffed. Or maybe, they must be treated in healing centres or reformatories. In any case, the difficulty is that each one violations don’t seem to be due to craziness or physiological deformities. There are some wrongdoings which are thought to infringe on the moral law and should be rebuffed.
Sociologists- Again there are some violations which are thanks to social disparities. For example, burglary could be wrongdoing. The specialist of the moral law requests that the individual who is related to robbery should be rebuffed. However, within the event that we research the case appropriately we comprehend that the explanation for robbery is neediness. Hence, criminal sociologists see that we can’t think about neutralizing the activity of bad behaviour without upgrading the social and financial states of the typical citizens. Violations are anticipated just if the general public reproduces supported equity and value. The supporters of this view are called criminal sociologists.
Physiologists- This hypothesis is bolstered by analysts. They hold that wrongdoings aren’t because of headstrong infringement of the moral law. Or maybe, violations are because of mental issues or madness. that’s the explanation hoodlums ought not be rebuffed. They should be controlled in healing centres or reformatories for renewal. The treatment of the criminal must be instructive or therapeutic instead of discipline. Be that because it may, there are some wrongdoings which are considered infringement of the moral law submitted by some people. Thus, they must be rebuffed. During this way, discipline keeps others from perpetrating comparable violations. It additionally can refine the criminal’s brain to not take it the incorrect way.

Applying the Reformative Theory in Death Penalty

Considering an interest documented against a choice of the Bombay HC during a twofold murder case wherein the judicature had discovered the blamed liable for killing his minor kid and pregnant spouse and granted executing, a seat of Justices Pinaki Chandra Ghose and Rohinton Nariman of the Supreme Court saw on April 7 that executing breaks the reformative hypothesis of discipline under legal code, therefore driving to life term the capital punishment granted to the convict. Eminently, the Bombay HC had vindicated the denounced. The SC depended upon the diminishing statements of the perished to take care of the court decision as far as insisting the blame of the charge. It reviewed that the SC had as currently alluded to the Law Commission of India to think about the problem of death penalty in India to “take into consideration a advancement and taught talk and open consideration in regards to this issue.

While considering whether execution must be granted for this situation, the SC relied on the Commission’s 262nd Report titled The Death Punishment. during this Report, the seat saw that the Commission had recommended nullification of corporal punishment for all violations apart from fear mongering related offenses and taking over arms offenses influencing the national security. The seat likewise noticed that death penalty had in certainty be converted into a particular element of legal code in India which the SC had been empowering dialog and verbal confrontation regarding the matter. The seat in this way expressed, Today, when the whipping has was a particular element of execution device in India which a way or another breaks the reformative hypothesis of discipline under legal code, we are not slanted to grant the identical within the exceptional certainties and conditions of the present case. The SC during this way held the convict’s fault was exhibited past reasonable vulnerability anyway this wasn’t the rarest of the remarkable case that supported him to be sentenced to death. During this way, the SC constrained a sentence of life confinement on the convict while communicating completely that “life detainment” would mean detainment for the traditional existence of the condemned.

Conclusion

The contentions for and against the Death Sentence is extremely impacted by the current thoughts regarding wrongdoing and discipline. From one perspective, there are individuals who are of the view that it’s a relic of a well used out and depleted human advancement and looks somewhat like mercilessness. In the expressions of Mr. Bertrand Russel, curse of discipline on the culprits is barely an arrival of severe nature. Along these lines, as indicated by them, outrageous discipline of death has no spot in the present day age. Subsequently they think about it as a fundamental shrewdness and sooner they’re disposed of, the higher it would be for the state. Then again, there are people whose number isn’t any but alleged abolitionists who are of the view that if death penalty is faraway from the written record, world would transform a hellfire and zilch would develop and thrive in this with the exception of the violations and offenders. A criminal wouldn’t fear anything since he’s cocksure of the fact, irrespective of what be, he wouldn’t bite the dust. The corporal punishment may be legitimized firmly on the bottom of its impediment impact. Executing is significantly more intense and a compelling obstacle than life detainment. Men fear passing than detainment so it fills in as a unique hindrance to proficient and sorted out offenders. Regardless of whether the varied articles be kept aside, the obstruction question would, in itself, outfit a sound reason for its maintenance. executing likewise fills in as a preventive to wrongdoing. When a man is executed, he’s no more there to hold out the wrongdoing again and therefore the general public is at any rate disposed of that man. Besides, it keeps a possible criminal from finishing up the wrongdoing. The retributive question can’t, nonetheless, be completely discounted. ‘Retaliation’, as utilized here doesn’t mean the crude idea of “tit for tat”, anyway demonstrates the outpouring of open anger to a stunning bad behaviour, – which can be better delineated as ‘Rebuff’, The censure is adjusted by the uncontrollable issues at hand. A repressed sensitivity replaces condemnation, open sensitivity whether through the court or through the correct of benevolence or by express arrangement now and again. Be that because it may, the standard behind huge numbers of the contentions for cancellation cannot be discounted. We can’t disregard the contentions in light of the permanence of executing, the seriousness of discipline, the necessity for an innovative approach and also the strong assumptions shown up by explicit sections of mainstream end in focusing further inquiries of human qualities.

References:

[i] “Crime is present in all societies of all types; there is no society that is not confronted with the problem of criminality. Its form changes; the acts thus characterized are not the same everywhere but, everywhere and always, there have been men who have behaved in such a way as to draw upon themselves penal repression. If in proportion as societies pass from the lower to the higher types the rate of criminality tends to decline, it might be believed that the crime, while still normal is tending to lose this character of normality it has everywhere increased. ….There is; then, no phenomenon that presents more indisputably all the symptoms of normality, since it appears closely connected with the conditions of all collective life.” See Criminology : Crime and Criminality (1 978), p.465-466

[ii] Reckless W.C Criminal Behaviour, p. 253.

[iii] Westermarck, E. The Original and Development of the Moral Ideas, p. 169

[iv] Max Greenhut, Penal Reform, A Comparative Study, p. 3

[v] AIR 1978 SC 1542.

[vi] AIR 1965 SC 444

[vii] AIR 1976 SC 2566

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This article is written by Shruti Kulshrestha, a student of New Law College, BVDU, Pune.

INTRODUCTION

National Economic Policy 2020 was a welcoming decision amid all the negativities going across the world in 2020. The announcement was a surprise for several people. The changes were something that was not expected by educational experts. The NEP policy has impacted both the schools and colleges equally. The national economic policy 2020 has once again taught us the importance of teachers and inspires students to choose the teaching profession even more. Several steps are being taken to uplift the status of schools and colleges like scholarships, decent and pleasant conditions, housing etc. The policy is aimed to provide a higher and appropriate level of education so that everyone can be benefitted from it. The policy was introduced by the Ministry of Education to meet the requirements of the 21st century.

Changes brought through NEP 2020

From 10+2 to 5+3+3+4: Present 10+2 structure in which policy covered schooling from Class 1 to 10 and then Class 11-12 gives way to 5 years of primary education, 3 of preparatory, 3 of middle and 4 years of secondary schooling
Multi-Stream: Now the students in the school will have the flexibility to choose subjects across science, commerce and humanities; all subjects to be made available at two levels of proficiency.
Diluted Board: Board exams to test only basic capabilities; could become modular and will be offered twice a year.
Multilingual: 3 language policy will be there with preference given to local language medium of instruction till class 8.
Bag-Less Days: School students to have 10 bag-less days in a year during which they will be exposed to an informal internship of their choice.
SAT-like College Test: The National Testing Agency to conduct a common college entrance exam twice a year.
4-year Bachelor: 4-year multi-disciplinary bachelor’s program to be made available; the mid-term dropouts will be given credit with the option to finish degree after a period of the desired break.
No Affiliation: The next 15years colleges will be provided with graded autonomy to grant degrees, connection with universities to end, and also deemed university status,
Free Cap: Proposal to cap fee opportunity taken by private institutions of higher knowledge.
Going Global: Top global universities to be asked to come to India, the top Indian Institutions to be inspired to go global.

Features of NEP 2020

Self-reliant India: This policy is incorporated in such a way that it will help the education system to solve its problems on its own. Skill education is given prime importance, it will be inflicted on students from pre-school to class 12^th and it will help to empower students in at least one vocational skill.
Sustainable development goals: UN has given 17 sustainable development tools with SDG4. This will include activities for societies and will give a social cohesive atmosphere in schools. The aim is to prepare students to think and adopt eco-friendly lifestyle since the primary level of schooling. The development of an individual is not only limited to specific fields but to extend their education to climate, culture, values and environmental awareness.
Education as an economy booster: GDP OF 6% is to be invested in education to promote and uplift cultural heritage, increase GER in education, creating youth who will help build the nation and boost the national economy. The changes in policy will lead the students to be more productive; more focused and will ultimately contribute to high economy rate.
Internationalization of Higher Education: Internationalism of Higher education has been added for the first time in the policy of India. It aims to make India an education hub thereby attracting more foreign universities and promote research collaborations and student exchange between India and global institutions. This will help India to come across the foreign education system and how different people have a perspective towards education. It will give a boost to international business not only in education but also in support services and other sectors.
Digitalized pedagogy and classrooms: The current situation of Covid-19 has raised the need for digital India even more; the section talks about the creation of digital libraries, content, pedagogy and classrooms, online teaching and how e-education should be used to give a boost to the education system and make India digitally empowered society and knowledge economy.
Equipping teachers with the latest technology and education methodology: There are several provisions that are introduced specifically for the training of teachers in school and higher education. The aim is to train them through digital technology. It even has high incentives for professionals to attract the finest talents to the industry. It also includes several courses in education via B.ED and compulsory certified education in teaching during Ph.D. enrolment for aspiring professors. They need to be given knowledge on the methodology and ways of knowledge transfer so that even students can be equally benefitted.

Conclusion

The National Education Policy (NEP) 2020 is a policy which tends to make education system more holistic, flexible, multidisciplinary and according to the needs of 21^st century. The intention of the policy seems to be ideal for the welfare of the economy but its success and growth ultimately lies on how it gets implemented.

References

Ministry of Human Resource Development
Indian Express.com
The Hindu newspaper
NDTV
The Times of India

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This article is written by Yash Dodani, a student of NALSAR University, Hyderabad .

The law has impact on every aspect of the society and essentially in every issue which comes in a society. It shapes itself as and when the issue comes up in the picture of the society. We are going now through one such issue which has disrupted the daily economic, legal, social working of the people. The COVID 19 whose first case was reported in the month of December 2019 in China, has now spread in almost all parts of the world. It has come up with lots of deaths, fear amongst the people, so much so that the people are not able to do their daily activities and are sitting in homes. But it makes certain things either delayed or impossible if the time is of essence. It is when the Law of Contracts and the COVID-19 crisis intersect and it is to be determined whether a situation like COVID-19 is a Force Majure and thus discharge the parties form their obligation or suspends their obligation until the situation is in control? This has become important so as to dodge the breach of contracts.

The contractual obligations of the parties can be discharged in two ways in lights of novel Coronavirus [COVID-19]. Now-a-days, the parties make a provision [clause] in their respective contracts namely ‘Force Majeure Clause’. In general terms, it is known as ‘Act of God’. But the term Force Majeure not only covers Act of God but also covers some supervening situations like Strikes, Epidemic etc. The term ‘force Majeure’ has been defined by the Supreme Court of India in the case of Dhanrajmal Gobindram v Shamji Kalidas and Co[1]. The Court said thus:

“The expression “force majeure” is not a mere French version of the Latin expression “vis major”. It is undoubtedly a term of wider import. Difficulties have arisen in the past as to what could legitimately be included in “force majeure”. Judges have agreed that strikes, breakdown of machinery, which, though normally not included in “vis major” are included in “force majeure”. An analysis of rulings on the subject into which it is not necessary in this case to go, shows that where reference is made to “force majeure”, the intention is to save the performing party from the consequences of anything over which he has no control.[2]”

We can see the force majeure clause in different forms in the Contracts drafted. Some contracts contain a broad meaning of the term ‘force majeure’ which says the term ‘beyond reasonable control of the parties’ like Act of God, war, labor dispute, strikes etc. Whereas in some other agreement, a long list of events is given, occurrence of one of such events will attract the force majeure clause.

The courts had in early times, provided a very narrow interpretation to the term ‘Force Majeure’. [3] This can also be seen in the case of Md Sirajuddin v State of Orissa[4] where the court said thus:

“Therefore the words “any other happening” must be given Ejusdem generis construction so as to engulf within its fold only such happenings and eventualities which are of the nature and type illustrated above in the same clause with close attention to the nature and terms of the lease, and would not reasonably be within the power and control of the lessee.”

It means that if a general term follows a specific term, that general term will be seen in the context of that specific terms used in the contract which are beyond the control of parties. Thus, the COVID-19 outbreak would be interpreted on case to case basis.

The COVID-19 outbreak can be considered as an event which might trigger the force majeure clause. The next thing to do is to invoke the clause which was explained by the Supreme Court in the case of Satyabrata Ghose v Mugneeram Bangur and Company[5] where the Supreme Court said the following lines;

“According to the Indian Contract Act, a promise may be express or implied (vide Section 9.). In cases, therefore, where the Court gathers as a matter of construction that the contract itself contained impliedly or expressly a term, according to which it would stand discharged on the happening of certain circumstances the dissolution of the contract would take place under the terms of the contract itself and such cases would be outside the purview of Section 56 altogether. Although in English law these cases are treated as cases of frustration in India they would be dealt with under, Section 32 of the Indian Contract Act which deals with contingent contracts or similar other provisions contained in the Act.” (emphasis supplied)

The Supreme Court in the same case further said that:

“It must be pointed out here that if the parties do contemplate the possibility of an intervening circumstance which might affect the performance of the contract, but expressly stipulate that the contract would stand despite such circumstance, there can be no case of frustration because the basis of the contract being to demand performance despite the happening of a particular event, it cannot disappear when that event happens.”

If the force majeure event occurs, the parties have an obligation to work in the same manner as specified in the contract. The manner may include but is not limited to a reasonable notice, alternative way to perform the contract and any other way which may be agreed by the parties. However if the contract has already a force majeure clause, that clause will be dealt under section 32 of the Indian Contract Act[6][see Satyabrata Ghose v Mugeeniram Bangur and Company] but if there is no such clause, the party who is alleging that the contract has been frustrated because of the force majeure event, they have to justify the same. However, there is no existed list of the events which can come under the preview of the force majeure events. It has and will be decided by the Indian Courts on case to case basis.

Frustration as a Way to discharge

Having discussed the meaning of the force majeure and the enforceability of the same, it is the time to discuss what other ways which are available to the parties if there is no express provision of a Force Majeure event. The contracts which are not made on company level basis have very general terms and are not often focused on the specific terms like that of force majeure. In that case it is important to discuss the alternate remedies which the parties have.

A perusal of the Act provides a legal principle in such situations, which is postulated in Section 56 of the Act evincing the doctrine of frustration.[7] The contract which the parties have entered into can be classified into two broad categories where the parties can file a plea of frustration. First is when the contract is impossible from the beginning when the parties have entered into an agreement. The second situation is where the agreement can not be performed due to some event which took place after the drafting of the contract. This is called ‘subsequent impossibility’ where the event can be anything which can stop the parties from performing the contract where that event can’t be controlled by the parties who are responsible to perform such act.

The Supreme Court has very beautifully analyzed Section 56 of the Indian Contracts Act, 1872 in the following lines in the case of Satyabrata Ghose v Mugneeram Bangur and Co[8]

“The first paragraph of the section lays down the law in the same way as in England. It speaks of something which is impossible inherently or by its very nature, and no one can obviously be directed to perform such an act. The second paragraph enunciates the law relating to discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done. The wording of this paragraph is quite general, and though the illustrations attached to it are not at all happy, they cannot derogate from the general words used in the enactment. This much is clear that the word “impossible” has not been used here in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and unless from the point of view of the object and purpose which the parties had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor finds it impossible to do the act which he promised to do.”

Now in order to analyze that the COVID-19 outbreak will be in the ambit of Section 56, we need to first understand the essentials of the Doctrine of Frustration. The remedy which is generally filed is the remedy of ‘Restitution’.

Essentials of Doctrine of Frustration

Fundamental Change in Circumstance

In order to succeed in a plea under Section 56 of the Act, the underlying event causing the impossibility or illegality should be an intervening event or change in circumstance which is so fundamental as to be regarded by law striking at the root of the agreement and beyond what was considered by the parties when they entered into the agreement.[9] The party needs to prove that the change in situation is such that there can’t be any option but to cancel the contract under the plea of frustration. If that very event doesn’t hit the fundamentals of those contracts, the plea of frustration will not succeed.

Let’s now take the current COVID case. Currently the governments of various countries have announced a nation-wide lockdown. The contracts of construction where time is of essence will be hit by the doctrine of frustration. The contracts of manufacturing will also be hit by the frustration because of the lockdown [a fundamental change], the manufacturing of units of products will not be possible because of absence of labors. But at the same time, a work which can be easily done from home, that contract will not be hit by the Doctrine of Frustration for the very simple reason that this change will not be a fundamental change in situation and can be performed. Similarly, the supply contracts may also be hit by frustration because of the lockdown and the non-availability of the transport.

The events which are unforeseeable by the parties can also come under the frustration. If the parties, at the creation of the contract, have contemplated the happening of the event, or could have foreseen the event [as a reasonable person would do], the doctrine of frustration can’t be allowed. Also, events such as an abnormal rise or fall in prices or a sudden depreciation of currency, do not by themselves affect the bargain made by the parties.[10] It is because the parties are expected that they have contemplated on it and these are those risks which are assumed by the parties that they need to take those risks.

Alternate means Available

When there is more than one way to perform that contract and that alternate way can be used in the case when some unforeseen event occurs, the plea of frustration can’t be allowed. If in the COVID condition, any contract can be performed by any alternate way, the contract will not be set aside just because any unforeseen event has occurred. This essential was explained by the Supreme Court of India in the recent case of Energy Watchdog and Ors. v. Central Electricity Regulatory Commission & Ors.[11] Where the court has used an English decision to very beautifully explain the essential in the following lines-

“37. It has also been held that applying the doctrine of frustration must always be within narrow limits. In an instructive English judgment namely, Tsakiroglou & Co. Ltd. v. Noblee Thorl GmbH 1961 (2) All ER 179, despite the closure of the Suez canal, and despite the fact that the customary route for shipping the goods was only through the Suez canal, it was held that the contract of sale of groundnuts in that case was not frustrated, even though it would have to be performed by an alternative mode of performance which was much more expensive, namely, that the ship would now have to go around the Cape of Good Hope, which is three times the distance from Hamburg to Port Sudan. The freight for such journey was also double. Despite this, the House of Lords held that even though the contract had become more onerous to perform, it was not fundamentally altered. Where performance is otherwise possible, it is clear that a mere rise in freight price would not allow one of the parties to say that the contract was discharged by impossibility of performance.”

Act of the Parties

When the performance becomes impossible due to the act of the party itself, in that case frustration can’t be allowed and the defaulting party may be directed to pay the damages to the other party. In a very earlier case under the line of frustration, it was said as under:

“the essence of “frustration” is that it should not be due to the act or election of the party and it should be without any default of either party and if it was a party’s own default which frustrated the adventure, he could not rely on his own default to excuse him from liability under the contract”.[12]

So when the contract can’t be performed due to the self-induced event, the plea of frustration will be rejected.

To recap, the parties in the current COVID condition needs to prove that there has been a fundamental change in the condition, but for that change the contract would have been performed, they also need to prove that the contract can’t be performed by any alternative way. If the court by any chance, found that the contract can be performed by any way, let it a more expensive way, they will ask the party to perform the contracts. The court has said in many cases that if the contract can be performed by any chance, they will direct the parties to perform the contract. The court also need to be satisfied that the contract was nor self-induced.

This is now important to understand the difference between frustration and Force Majeure. The Force Majeure event does not directly place the contract under the preview of section 56. When the parties have a force majeure clause in the contract, it can’t come under the ambit of section 56 but under section 32 in Indian law. The rationale behind this position is that, the parties should not be absolved from performing their obligations in entirety on the happening of an event that was contemplated by them in the contract, and the recourse to be adopted by them on the happening of such event has been expressly stipulated therein.[13] To explain this lets take a case where the force majeure clause says that in the happening of that event, the parties will be suspended from performance and not termination, the parties can’t now take the plea of frustration because it will render the contract void and that was not the very intention of the parties when the contract was made.

If a force majeure event occurs and the party is filing a plea of frustration, they need to be care full that if the party is doing so, the contract will be void altogether when such a plea will be accepted. But when a party is taking the defense of force majeure event, there is an option with him or the courts can also direct that the performance can be done once the event is done.

Bank Guarantees in COVID-19

When the parties enter into some very long-term supply or constructions, it requires the parties to have performance security. One such security is bank security. If the performance has not been done by either of the party, the other party can ask the bank who has guaranteed on the behalf of the defaulting party. The Bank HAS to give the money and then the bank may collect that money from the party who has guaranteed. In the case of COVID, many contracts are being canceled, and if the Bank is asked to pay that amounts, that will be highly unjust. As said the bank HAS to pay, but it can lift from paying under two cases. Firstly, if the guarantee has been taken by fraud, and secondly when there are some special circumstances. In the COVID situation, there is very less liquidity in the market as all the businesses are closed due to lockdown. If the banks are asked to pay in these special cases, it will be highly just and the banks will fall down. Therefore, the banks should not be directed to pay in these cases.

To sum up, COVID 19 has made the world stop at the place where it is. When the contracts have a force majeure clause, the Courts will deal it under section 32 of the Act and when there is no force majeure clause, the parties can file a plea of frustration which will render the contract void. However, the COVID has stopped the working of the whole commercial world and there is a huge uncertainty until when it will go like this and it’s affecting the working of a large number of Contracts which could go good if these conditions would not have arrived.

[1]AIR 1961 SC 1285.

[2] Id.

[3] Energy Watchdog and Ors. v. Central Electricity Regulatory Commission & Ors. [(2017) 14 SCC 80].

[4] AIR 1969 Ori 152. Also see TGV Projects & Investments Pvt. Ltd. v. National Highways Authority of India [2019 (173) DRJ 717].

[5] AIR 1954 SC 44.

[6] The Indian Contract Act, 1872 [Act 9 of 1872].

[7] Halsbury’s Laws of England, Vol. 7, page 213.

[8] Supra n, 5.

[9] Energy Watchdog and Ors. v. Central Electricity Regulatory Commission & Ors. [(2017) 14 SCC 80].

[10] Alopi Parshad and Sons v. Union of India [AIR 1960 SC 588].

[11] (2017) 14 SCC 80.

[12] Maritime National Fish Ltd. v. Ocean Trawlers Ltd. [AIR 1935 PC 128 (A)].

[13] NTPC Limited v. Voith Hydro Joint Venture [2019 (176) DRJ 241] and Bharat Heavy Electricals Limited v. G+H Schallschutz GMBH, decided on July 9, 2018 by the High Court of Delhi.

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This article is written by Samridhi Chhabra, a student of UILS, Panjab University

“The nation wants to know, Gor se dekhiye iss chehre ko” a number of the words and rhetorics often heard by the general public from the anchors and journalists influences us to believe their words and opinions about a difficulty or an individual even before the person has been convicted by the particular courts. “The media is the most powerful entity within the world. it’s the facility to form the innocent guilty and to form the guilty innocent, which is powerful because they will control the minds of the masses “quoted by MalcomX.

Rightly quoted, Media has been considered as the fourth pillar of democracy and plays a vital role in shaping democracy. In an exceedingly progressive world that we live in, People’s daily lifestyle starts with the influence of the media be it in sort of Newspapers, Television channels or social media and ends with it. It can Align or malign one’s reputation and influence other’s minds with the power of its pen and its mic. it’s often seen that these news channels become a public court even before the accused becomes convicted.

The media sometimes plays havoc with the public’s emotions and sentiments by specializing in the scandalous news in an eye fixed-catching manner. Not only this, but the media sometimes hypes the news for its personal benefits just like the Television Rating Points referred to as its TRP.

When Does Media Trial Happens?

The Supreme Court of India has recorded on the consequence of media trial as under: ―the impact of television and newspaper coverage on a person‘s reputation by creating a broad view of the case irrespective of the choice within the actual court of law. During most high-profile cases, the media is usually accused of making a public atmosphere with a lynch crowd that not only makes the case unbearable but also means without the end result of the case, within the spotlight the suspect is already guilty and that they won’t be able to live their entire lives without much public scrutiny. There are reasons why the eye of the media around certain cases is sensationally high. the explanations are: Cases could involve children or they might be so horrific or gruesome that the media considers it necessary to sensationalize such cases. The case may well be of a number one celebrity either as a victim or as an accused. In cases where big celebrities are involved, the influence of the media could drastically change the opinion of the so-called “fans” of such influential celebrities.

Role of Article 19(1): Freedom of Speech and Expression

There is a marginalized difference between accused and convict and that they ignore the aspect and influences their opinion on the general public Although Freedom of press and Right to express and be heard may be a constitutional right provided to everyone and that they have full freedom to exercise their opinion on the subject but the scenario takes a turn when because of the powerful influence of those media houses and their tactics they’re ready to convince and prejudice public and it can include the judges too. Humans have a bent to varying their opinions and outlook when shared a strong opinion. Thus it can harm the accused person of getting rightful justice within the actual courtroom. The constitution of India guarantees its citizen Right to freedom of speech and expression as per Article 19(1) and 19(2). It means the proper to talk and to precise one’s opinion by words of mouth, writing, printing, pictures or in the other manner. It thus includes the freedom to hold opinions without interference and to seek out and receive and impart information and ideas through any media regardless of its frontiers. the liberty of expression thus includes the liberty of the propagation of ideas, their publication and circulation. Similarly, it’s thus settled law that the proper to freedom and expression in article 19(1)(a) includes the freedom of the press. This liberty has been held to be one amongst the good bulwarks of liberty and may never be restrained but by the despotic government [1].

A journalist has the correct under article 19(1)(a) to publish as journalist a faithful report of the proceedings witnessed and heard within the court. However in certain matters like the commission of the offence of rape, unnecessary publicity may result in the miscarriage of justice. The apex court in State of Maharashtra v Rajendra jawanmal Gandhi[2] did hold that an effort by press electronic media or public agitation was the very antithesis of rule of law. within the present scenario, there are plenty of such famous cases like Sushant singh rajput’s suicide case wherein the prime accused has filed a plea before supreme court for the media trial being initiated and defamation being caused to her and her family. Also in cases like Jessica lal murder case, Aarushi murder case the Talwars were declared murderers by media even before the judgment. Another example is of Asaram Bapu. Though just charged under Protection of youngsters from Sexual offences Act, 2012, he was declared guilty by the media. Media portrays the accused in such some way, by using assertive form of writing, which the general public is created to believe the story of the media. In Romesh Thappar v. State of Madras[3] Justice Patanjali Sikri observed that: “Freedom of Speech and of the Press lay at the muse of all democratic organizations, for without free political discussion no public education, so essential for the correct functioning of the strategy of popular Government, is possible

Immunity under the Contempt of Courts Act, 1971

Under the Contempt of Courts Act, 1971, publications under free trials are sheltered against contempt proceedings. However, any publication which interferes with or obstructs or tends to obstruct any proceeding, be it civil or criminal, and the course of justice, which is actually a pending proceeding, constitutes the contempt of court. It has been termed as contempt because some of the acts which are published before the verdict given by the court, can mislead the public and affect the rights of the accused of a fair trial. Such kind of publications may be related to his previous convictions or the confession he made in front of the police or merely character assassination of the accused.

Judiciary’s Take on Media Trials

The Supreme Court has held that a trial by media has affected a number of cases is the very anti- thesis of the rule of law and has led to the miscarriage of justice. In M.P. Lohia v West Bengal[4] and in State v Mohd. Afzal and Ors.[5] The Supreme Court cautioned for publication of issues which was prejudiced. It deprecated the media for interfering with the administration of justice by publishing one sided articles pertaining to merits of cases pending within the Courts.

In the very famous case of Aarushi Talwar’s Murder, [6]2013, the media had declared who was guilty and who wasn’t even before the particular trial had begun. There have been mass protests and therefore the public had gone into hysterics over the fact that her own parents were the explanation of her death. But, this is often also an immunity given to the press, albeit the media had gone berserk in this case. Such publications have been known to have gone unchecked without the interference of the legislature. [7]

This had been appropriately indicated in R. K. Anand v. Delhi High Court[8]where the Court was of the view that the impact which the media causes makes an un-biased trial impossible. In Express Newspaper v. Union of India, the Court observed that there’s every possibility of an unbridled liberty to become a license resulting to anarchy and disorder. Therefore, the so-called media verdict emerging from media trial affects the administration of justice.

In Re: P. C. Sen[9] the real risk of prejudicial remarks by media was expressed and also raided the priority about the impacts such comments may wear the mind of the judges.

Rao Harnarain v. Gumori Ram[10], where the Court deplored the practice of media trial and observed that journalist cannot attempt to influence the judges. Though judiciary has not clearly accepted that the judges are influenced by media trial but has shown concern about its potential effects on the judge’s subconscious..

In the case of Sushil Sharma v. The State (Delhi Administration and Ors.[11]), 1996, there was little evidence that the accused had murdered his partner. However, while the case was still pending in the court, the media had started portraying the accused as a murderer and was capable of adjusting the views of the general public even before the outcome of the case. It was held by the High Court of Delhi that the conviction of any person would solely be supported on the facts of the case and not because the media wanted the person to be declared as guilty. The charges also have to be framed against the person accused based on the evidence available on record and not supported on what the media portrays the person to be.

CONCLUSION

“Where the press is free and each man is able to read, all is safe.” Thomas Jefferson

Jawaharlal Nehru was also of the same view and even. In some cases Media’s focus and intervention has been a boon to the nation rather than a bane such as the case of helpless migrant labourers who had to move to their native villages and became jobless and homeless due to the pandemic situation. In the instant case the media helped them by covering their grievances and the Supreme Court took Suo moto Cognizance and ordered the Centre and State government respectively to take measure of transporting them to their places and and provisions for employment schemes for them and for this media has to be credited but when powers are used ignoring its limits it happens to create a havoc. Often these media houses are funded by mighty political parties and their representatives which happens to focus on their opposition parties failure and in defaming them resulting to a biased and partial information. Thus it would be in a greater interest of the society if media sticks to unbiased facts and un prejudiced information.

REFERENCES

http://shodhganga.inflibnet.ac.in/bitstream/10603/18950/10/10_chapter%205.pdf
https://indiankanoon.org/
https://timesofindia.indiatimes.com/defaultinterstitial.cms
http://www.rmlnlu.ac.in/webj/devesh_article.pdf
https://www.researchgate.net/
https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1003644_code741912.pdf?abstractid=1003644&mirid=1
http://shodhganga.inflibnet.ac.in/bitstream/10603/99750/16/15_chapter%2010.pdf
http://www.legalserviceindia.com/article/l255-Contempt-of-Court.html
http://lawcommissionofindia.nic.in/reports/rep200.pdf

[1] The Virginia Declaration of Rights (1776)

[2] SLP (Crl.) No.1773/96)

[3] 1950 SCR 594

[4] SLP(Crl.)No.1829/04

[5] 2003 VIIAD Delhi 1

[6] CRIMINAL APPEAL NO. 68 OF 2012

[7] https://blog.ipleaders.in/constitutionality-of-media-trials-and-landmark-cases/

[8] 2009) 8 SCC 106.

[9] 1970 SC 1821

[10] AIR 1958 P H 273.

[11] (1997) 1 SCC 133 R

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This article is written by Shambhavi Shree, a student of KIIT School of Law, Bhubaneswar.

Case Number

Criminal Appeal No. 1076 of 1999

Equivalent Citation

AIR (2002)3 SCC 475

Bench

Honorable Mr. Justice R.P. Sethi and the Honorable Mr. Justice K.G. Balakrishnan.

Decided on

27th February 2002

Relevant Act/Section

Section 313 of the Criminal Procedure Code, 1973 states that while examination of the accused person he/she has the power to establish his innocence.
Section 302 of the Indian Penal Code, 1860 says that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine.
Section 452 of the Indian Penal Code, 1860 states that a person’s house-trespass to cause hurt, wrongful restraint, assault shall be punishable with the imprisonment for a term which may extend to seven years and also be liable to fine.

Brief Facts and Procedural History

Bai Ubadi (deceased) was residing at Dadiapada, Navinagri with her husband. She rented another house on lease for starting the factory business to the complainant Saiyed Khan Majid Khan (PW 2). In this case, the appellant was the husband of the deceased person with whom she was living for 8 years. Two months before the occurrence of this incident there was a record in which the appellant attempted to kill his wife with an axe. Therefore she filed a complaint before the police station.
The incident occurred on 7th August 1984 in front of the witnesses Nayana (PW 9) and Shruti (PW 10) when the appellant straightly went to the house of PW 2 and demanded his clothes from the deceased. When she denied then the appellant gave a blow with a dagger pulled out from his waist on the stomach of the deceased. He continued to give repeated blows with that dagger to which she received a total of 35 injuries and she died on spot.
Two people saw the appellant running away from the house of the complainant with a dagger. Immediately within half an hour the complainant (PW 2) filed a complaint before the police and reported about the offence that took place in which he was an eye-witness. A post-mortem report and document of Panchnama was recorded by the police.
On 8th August 1984, the appellant appeared before the police station with the weapon of offence. He was having a similar blood group to that of the deceased in his clothes and dagger when he appeared before the police.
There were three witnesses in which PW 2 supported and the rest two were declared hostile witnesses as they did not saw the incidence. The statement of the accused was recorded under Section 313 of the Criminal Procedure Code, 1973. He stated that he was not involved in this case and was being falsely accused.

Issues before the Court

Why the complainant (PW 2) did not respond when the appellant was committing the offence?
Whether there was any relationship between the deceased and the complainant?

The Decision of the Court

The Trial Court stated that the statement given by PW 2 could not be relied upon. It was doubted that the relation between the deceased and PW 2 was an indication of partisanship. It was seen that the deceased and the complainant were sharing an intimate relationship. When the appellant was giving repeated blows with the dagger to the deceased then PW 2 did not interrupt to stop him. And he was unable to mention the names in the FIR of the people who gathered after the incident took place.
The High court set aside the judgment given by the Trial Court and focused on appreciating and analyzing the evidence of the witness stating that the complainant without any loss of time within half an hour reported the incident to the police station. They further stated that the appellant trespassed the house of the complainant and committed the murder. The place of the occurrence suggests that the complainant is the only natural witness of the incident.

Reference

https://indiankanoon.org/doc/177671/
https://www.scconline.com/Members/Dashboard.aspx
https://www.google.com/search?sxsrf=ALeKk00bjvXJy3Qc7aiet8HQEQtluS09GQ%3A1599276274670&ei=8gRTX-m1KMSe9QONmaHIAg&q=Harsingh+M.+Vasana+v.+State+of+Gujrat%2C+AIR+2002+SC+1212&oq=Harsingh+M.+Vasana+v.+State+of+Gujrat%2C+AIR+2002+SC+1212&gs_lcp=CgZwc3ktYWIQAzIECCMQJzoHCCMQrgIQJ1DIvwVYqsEFYKbKBWgAcAB4AIABggKIAdwFkgEDMi0zmAEAoAEBqgEHZ3dzLXdpesABAQ&sclient=psy-ab&ved=0ahUKEwjp9v6xiNHrAhVET30KHY1MCCkQ4dUDCA0&uact=5

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This case analysis is written by Shambhavi Shree, a student of KIIT School of Law, Bhubaneswar (4th year).

Case Number

Criminal Appeal number 90 of 1957

Equivalent Citation

1958 AIR 465, 1958 SCR 1495

The accused person was tried under Section 302 of the Indian Penal Code, 1860 individually and jointly with five other accused under Section 302, 324, and 323 read with Section 149 of the Indian Penal Code, 1860.

Bench

Hon’ble Justice Syed Jafar Imam, Hon’ble Justice P.B. Gajendragadkar, Vivian and Bose.

Decided on

11th March 1958

Relevant Act/ Section

Section 300(3) of the Indian Penal Code, 1860 states that if the act was done with the intent to cause bodily injury and that act resulted in causing the death of a person then it comes under the category of murder.
Section 302 of the Indian Penal Code, 1860 says that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine.

Brief Facts and Procedural History

Virsa Singh caused the injury to the deceased Khem Singh on the 13th of July 1955 at 8 p.m. Accused person made an unlawful assembly with five other persons and stabbed a weapon into the abdomen of the deceased. The abdomen of the accused was fractured and three coils of the intestines came out of the wound. Because of the injury, Khem Singh died on 14th July at 5 p.m. The doctor examined the dead body and reported that the forceful blow with a knife in the stomach of the deceased person passed through the abdomen and also caused injury to the bowels. And the damage to the body caused by the accused is sufficient to cause death.

The accused person was tried under Section 302 of the Indian Penal Code, 1860 individually and jointly with five other accused under Section 302, 324, and 323 read with Section 149 of the Indian Penal Code, 1860.

Issues before the Court

Whether the injury caused by the accused is sufficient in the ordinary course of nature to cause death or not?
What was the nature of the injury?
Whether the injury caused was accidental?

Decision of the Court

At first, the Sessions Judge stated that the accused intended to cause grievous hurt. Section 300(3) is to be applied and the accused should be convicted under Section 302 of the Indian Penal Code, 1860. High Court interrupted and further stated Section 300(3) will not be applicable as the intention to cause bodily injury that was sufficient to cause death in the ordinary course of nature was not proved. The learned High Court Judges considered that the blow was sudden but later on accepted the fact after the post-mortem report of the deceased. Court referred to the case of Emperor V. Sardarkhan Jaridkhan (1916) 18 BOMLR 793, 36 Ind Cas 578[2] in which Beaman J. stated that if the death is caused by a single blow it is difficult to predict the nature of the offense caused. Supreme Court concluded that the facts and circumstances clearly state the intention to cause death. Therefore the condition under Section 300(3) of the Indian Penal Code, 1860 were satisfied and the accused person was sentenced to death under Section 302 of the Indian Penal Code, 1860.

Reference

https://indiankanoon.org/doc/1296255/
https://www.lawyerservices.in/Virsa-Singh-Versus-State-of-Punjab-1958-03-11
https://www.latestlaws.com/bare-acts/central-acts-rules/ipc-section-300-murder/#:~:text=Murder,-Next&text=Fourthly.,or%20such%20injury%20as%20aforesaid.

[1] Virsa Singh V. The State of Punjab on 11^th March [1958 SC]

[2] Emperor V. Sardarkhan Jaridkhan (1916) 18 BOMLR 793, 36 Ind Case 578

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This Article is written by Manav Sony from Amity University, Kolkata. The Article talks about certain constitutional provisions which are there for the protection and welfare of women.

INTRODUCTION

Each and every citizen at our country has been given certain rights in order to protect their interests and also to safeguard their moral values. It also helps them to protect themselves from any sort of violence which are put into the effect by the courts at our country which are subjected to certain limitations. Women are considered to be equal to men at our society. Women also deserve equal rights as compared to men. Each and everyone are treated equally in the eyes of supreme law. Out of all these certain fundamental rights, there is a right to equality that is given to each and every citizen which protects them from any sort of discrimination and also from any other gender equality issues which they might face due to poor mind of the society.[1] Women need certain important provisions so that they feel safe in the country and thus they can move freely anywhere. We do not have proper set of rules for the welfare of women. When rape convicts are held guilty, they are just given a small imprisonment punishment and not death penalty because we still don’t realise how women are important. They face oppression and are victim of various offences going on at our country. India is the leading country in crimes against women as compared to other countries. If we compare other countries with India, we can see that the other countries have quite stricter laws. If we look into countries like Saudi Arabia, Iran, USA, UAE and all other renowned countries, they have a stricter law and order.[2] If you commit any offence in these countries, either your hands are cut off or you are given instant death penalty. But in India, you have to wait for around 5-10 years and then only you will get justice and nothing else. This is the reason why India is lagging behind in protection of women’s rights. The Indian Judiciary needs to learn a lot from other countries so that women feel free at their own country. In this article I will be talking about some of the provisions which are there but still women are not satisfied with these provisions. We still witness rape and all other sort of crimes against women. We have to notice one fact that the constitution of our country not only grants equal status to women, but it also gives empowerment to the state for adopting the measures of positive discrimination which goes in favour of women. Within the entire stable framework of a particular democratic polity, our laws, policies, plans and even programmes have targeted towards women advancements in various dimensions. India has ratified in dimensions of international conventions and human rights instruments which commits to protect the equality right for women. There is a strong hope that soon we will be having stricter laws to protect the women.

Constitutional Provisions and Privileges

Talking about Provisions, our constitution has certain fundamental rights and among from that they also ensure equality before the supreme law and equally protects the law and also prohibits any sort of discrimination on the basis of caste, creed, religion, sex, colour etc. Articles 13, 15. 15(3), 16, 39(a), 39(c) and 42 of the Indian Constitution are really important under this aspect i.e. Welfare of Women.[3]

If we talk about the Privileges, there are some points that come under this regard which are enumerated properly as follows:

Equality before Law (Article 14)
The state has no right to discriminate anyone on the basis of caste, creed, religion, sex, place of birth etc. (Article 15(i))
The state should make certain important provisions which favours women and children (Article 15(3))
Equal opportunity for all the citizens on the basis of employment or appointment to any office under state (Article 16)
The state must direct their policy so as to secure men and also women equally on the basis of livelihood (Article 39(a)) and also equal pay (Article 39(d))
To promote immediate justice on the equal basis of opportunity and also provide free legal aid through any legislation or scheme if any (Article 39A)
The state should make certain provisions so as to secure just and humane work environment and even maternity relief (Article 42)
The state should promote with some special care regarding education and economic interests of the weaker sections of the society and also promote them from any injustices and all other sorts of exploitations (Article 46)
The state should take important steps so as to promote proper nutrition and a standard of living of its citizens (Article 47)
There should be promotion of harmony and spirit of common brotherhood and also remove illegal practices which is against the dignity of women (Article 51(A) (e))

Conclusion

In a world racked by violence, woman face rape, sex related abortions, dowry abuse, blame for not bearing child, wife-battering and cruelty against wife, adultery, prostitution, eve-teasing. Other forms of torture in the form of domestic violence and outside the domain of house and murder of woman by her husband or her in laws on the one hand within the four walls of the home and by the police or executive authority and other persons on the other hand either at workplace or otherwise but outside the home. Bangles, which are synonymous with women, have been quite often used as a metaphor for shackles not only in feminist literature, but also otherwise. Gender inequity has been a prevalent condition in all cultures surpassing all other differentiations. Male chauvinism as a state of mind is so well dissipated that gender stereotypes and sexism exist even in urban subcultures just as it does, more so, overtly in rural, rudimentary cultures. Gender dynamics have largely been deepened by simple dichotomies between the sexes and its associated products and practices. From tribal to agricultural to industrial societies to organized states the division of labour has primarily stemmed from physiological differences between the sexes, leading to the power resting with the men, resulting in the established gender hierarchies. We have been gifted with a history of discrimination, subjugation and suppression. In India, it is believed that women enjoyed an equal status as men in the Vedic Period. The education of women held considerable significance, especially from works of katayana and Patanjali, The Upanishads and the Vedas have cited women sages and seers. But the condition declined considerably afterwards. Historical practices such as Sati, Jauhar, Purdah and Devadasis, child marriage, are a few traditions reflective of the gender imbalance in Indian society. Though these practices are largely defunct now, due to legal reform, the essence of the dysfunctional gender equity still is rampant and manifested today through domestic violence, trafficking, dowry deaths, female infanticide, female feticide, sexual objectification and violence and sexual harassment at work place. Man and woman are equal parts of humanity having equal dignity and social and religious status.

[1] https://shodhganga.inflibnet.ac.in/bitstream/10603/71877/10/chapter%206.pdf. (last viewed 2^nd August, 18:02)

[2] http://www.legalserviceindia.com/helpline/woman_rights.htm. (last viewed 2^nd August, 18:44)

[3] http://mospi.nic.in/sites/default/files/reports_and_publication/cso_social_statices_division/Constitutional&Legal_Rights.pdf. (last viewed 3^rd August, 17:13)

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This case analysis is written by Tulip Das, currently pursuing BBA L.L.B(H) from Amity University Kolkata.

Case Number

42 Cri. L.J. 146

Judges

Braund, J.

Decided On

04/06/1940

Citation

AIR 1940 All. 486

Relevant Act

Sections 299, 300, 302, 304 and 309 of the Indian Penal Code, 1860.

Section 307 of the Criminal Procedure Code, 1973.

Facts

Mt. Dhirajia, a young married woman, lived in a village with her husband Jhagga and their six months old baby daughter.

The husband did not treat the wife well and threatened to beat her. There were frequent quarrels between the two.

He also objected to his wife visiting her parent’s house in Bhagatua and then later that night, Jhagga woke up and found his wife and the baby missing. He went out in pursuit of them and when he reached a point close to the railway line, he saw her making her way along the path.

When she heard him coming after her, she turned round in a panic, ran a little distance with the baby girl in her arms and then either jumped or fell into an open well which was at some little distance from the path.

The little child died while the woman was eventually rescued and suffered little or no injury.

Mt. Dhirajia was charged with the murder of her baby and with an attempt to commit suicide herself by the Sessions judge.

Procedural History

The case began when a mother jumped inside well with her six-months old baby girl, in panic, when she heard her husband calling her from behind, as she was leaving his house. The couple did not share a good relationship and the husband would even threaten to beat the wife. Although the wife was saved, the baby had died. The wife was held with the charges of attempt of suicide and murder of the child. The result of the trial for attempted suicide by the jury was that she was found not guilty. The learned Judge was unable to agree with the verdict of not guilty upon the charge of attempted suicide and he has therefore referred the case to the Allahabad High Court under Section 307 of the Criminal Procedure Code, 1973 with the recommendation that the jury’s verdict should be set aside and that the appellant should be convicted under Section 309, I.P.C., as well as under Section 302. In this way, the Allahabad High Court had before them the appellant’s own appeal against her conviction and the learned Sessions Judge’s reference recommending the Allahabad High Court to set aside the verdict of the jury and to substitute a conviction upon the charge of attempted suicide as well.

Issues Raised

Whether her act of jumping inside the pool was an attempt to commit suicide?

Whether she will be convicted of the murder of her own child?

Whether while doing the act she had the “knowledge” that she was likely to cause death?

Ratio Decidendi

Indian Penal Code, 1860.

Section 299. Culpable Homicide – Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Section 300. Murder – Except in the cases hereinafter excepted, culpable homicide is murder—

If the act by which the death is caused is done with the intention of causing death, or
If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or
If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Section 302. Punishment for murder – Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.

Section 304. Punishment for culpable homicide not amounting to murder – Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;

Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

Section 309. Attempt to commit suicide – Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both.

Criminal Procedure Code, 1973

Section 307. Power to direct tender of pardon – At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.

Judgment

The Allahabad High Court is of the opinion that Mt. Dhirajia had no intentions to kill the child and her act was a result of the panic that she was in. However, the charge of attempted suicide on Mt. Dhirajia was rightly acquitted. In this case, her actions were an act of committing suicide. So, she was rightly acquitted under Section 309 of the IPC. The Allahabad High Court was unable to accept the judgement given by the Sessions Judge and the verdict of not guilty passed by the jury stood firm thereby substituting the convictions under Section 302 for that under Section 304 of the Indian Penal Code.

It is obvious from the facts that this is not a case deserving severe punishment. It was also rightly pointed out that the woman did not know that such an act of hers would lead to the death of her child. The unfortunate woman had already been in prison for eight months and the Allahabad High Court deemed that the proper verdict would be that she should be sentenced to undergo six months’ rigorous imprisonment which, in effect, means that she will be released at once unless she is proven guilty of some other charges.

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This article is written by Shivani Kumari, a student at Lloyd Law College, Noida

Decided on

16th November 1896

Citation

(1896) UKHL 1

Bench

LORD HALSBURY L.C., LORD WATSON. , LORD HERSCHELL. , LORD MACNAGHTEN. , LORD MORRIS. , LORD DAVEY.

Relevant law

The companies Act, 1862 (UK)

Facts

Aron Saloman had a business as a leather merchant in England. His family includes four sons, a daughter, and a wife. His sons wanted to become his business partners, so he converted his business into a limited company under the statute established by law. A. Salomon & co ltd purchased Mr. Salomon’s business for above market value making his two elder sons as director and his whole family as a subscriber of 1 share each. Salomon allotted himself 20,001 shares a total out of 20,007 shares. The price was satisfied by £ 10,000 in debentures, conferring a charge over all the company’s assets, £ 20,000 in fully paid up £ 1 shares, and the balance in cash. Eventually, within a year the company suffered loss and went into liquidation leaving nothing for his unsecured creditors. Mr. Saloman claimed the amount of the remaining company’s assets under his retained debentures. The company’s liquidators took an action against Saloman holding him liable to indemnify the company against the company’s trading debts.

Issue

1. Whether A. Saloman & co ltd was a company under the statute?

2. Whether the company was formed to fraud and sham the creditors?

3. Whether Saloman was eligible for the claimed amount?

Ratio

The sole guide for this case is the statute itself. The act provided that any seven or more persons with a lawful purpose can constitute a company by subscribing their names to the memorandum of association. The act also states that “No subscriber shall take less than one share” here the seven members are an actual living person and are holding the required share. So, undoubtedly this is a real company. The House of Lords further stated that the company does not lose its identity if the bulk of its capital is held by one person of seven other persons, it all depends on the will of the subscribers

Decision

After several sets of proceedings in lower courts, the appeal landed in the House of Lords. The court held that A. Saloman & co ltd was legally constituted and it was not the role of judges to read limitations into the statute in a manner that they considered preferable and the companies Act 1862 (UK) did not require shareholders to be independent of the majority shareholder. Mr. Saloman was awarded the amount under his retained debentures.

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