INTRODUCTION

When humans are traded for purposes like forced labour, sexual exploitation or slavery etc. illegally from one person to another, it is called human trafficking. Since such an act violates the movement of the person and also exploits him it becomes a crime. It is a heinous crime that has its roots in India from a very long time. Trafficking can take place not only inside the boundaries of the nation but also across the borders. There can be various motives behind human trafficking like forced marriages, organ donation, begging etc. But in order to eradicate this and to control the current situation, there is an urgent need to reform the laws and strictly apply them. Tragically, there is much more involvement of women and children in trafficking.

Trafficking and prostitution are not synonymous and have very different meanings. As per the current laws, prostitution becomes when a person has been commercially sexually exploited. Hence trafficking is a prior step to prostitution. People are moved from one place to another, hired and recruited for commercial sexual exploitation (CSE). Therefore, trafficking is the process and prostitution is the result. The rise in demand for commercial sexual activities leads to more cases of trafficking. As discussed earlier the motives behind trafficking can be numerous but the ITPA,1986 deals with only trafficking that lead to prostitution or commercial sexual exploitation. Under this act CSE in all forms is covered be it in a brothel, cars, massage parlour, bartending, tourist service etc. and the person in power has all powers to take action against these vicious acts.

ITPA at a Glance

To curb this problem the government in 1956 passed the act Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) which was later with amendments renamed as Immoral Traffic Prevention Act(ITPA) in 1986. However, this act only discusses the trafficking that leads to prostitution and not other crimes like child abuse, forced labour, organ donation etc.

The first section of the act lays down the measures for the illegality of prostitution and also for those who own the brothel or live on the earnings of that business etc. Another section talks about the act of persuading a child i.e. a person below 18 years into this heinous act of prostitution and can be punished for seven years or less. It also aims to deal with people who are not directly in that business like the transporters, keepers, managers etc so that every person involved in punished.

Definition of Trafficking

The glimpse of the definition of trafficking but the original definition of ‘trafficking’ is given under the Goa Children’s Act, 2003. Although it aims to focus on child trafficking since it is too wide it covers all areas. As mentioned in Section 2(z) child trafficking can be defined as “the procurement, recruitment, transportation, transfer, harbouring or receipt of persons, legally or illegally, within or across borders, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of giving or receiving payments or benefits to achieve the consent of a person having control over another person, for monetary gain or otherwise”.

Hence it can be clearly noticed as per the act that the following three are the essentials for trafficking:

1. Movement of person from one place to another– There must be movement of the victim from one place to another without his consent irrespective of the distance covered.

2. Exploitation of the aggrieved person- It is essential that the trafficked person must be sexually exploited to be covered under ITPA. Again, it can occur at any place like a brothel, building etc.

3. Exploitation must be commercialised- The victim is considered as a commodity for use of sexual exploitation. The convicts must get profit out of the same business. There can be more than 1 person and they may also share the profit with the victim.

Important Sections of ITPA

*As per the section 5 of ITPA the trafficker could be anyone be it a male or female and there is no age prescribed for it. Also, the place of movement could be anywhere. Even fir the attempt of trafficking the ITPA provides punishment.

*Also, it has been mentioned in ITPA that the consent obtained under threat, coercion, pressure etc. are not accountable to trafficking. The mens rea again plays an important part here.

*Trafficking is not a single-stage process. It includes a lot of people and places i.e. place of recruitment, transit, exploitation. There can be a lot of exploiters that include people at the brothel, a person in charge of brothel or dance bar, managers of the place, hoteliers etc. Some specific people are also included in ITPA like the keepers of the place used as mentioned in Section 3.1 of ITPA and person who detains the victim in those places as mentioned in Section 6, ITPA and the person who gives permission to use the place as mentioned in Section 3.2 ITPA and last that person who allows to use the public place as written in Section 7 ITPA.

*The ‘customer’ is that person who exploits the victim. He is due to whom there is demand for CSE and profit for the other parties. Also, those persons who directly or indirectly abet the exploitation of the victim in any are triable by the court under Section 3,4,5,6,7,9 of ITPA.

*The people who either live on the earnings of the brothel business or who are anyhow financially involved with the brothel can also be held liable under Section 4 ITPA.

*There are also various people involved in the conspiracy of human trafficking and they are punishable under Section 120 of IPC. As per the ITPA, all those who allow to use the place or who induces the person for prostitution or who live on earnings of this act are held as conspirators.

*It also aims to punish those who involve children in the prostitution and if any person is found with child in the brothel he can be punished for seven years extending to ten years with fine. And such a child would be kept with security.

CONCLUSION

The act, however, focuses on preventing such acts but also lacks somewhere that needs to be improved. The act of prostitution is not illegal but practising it in a brothel or within 200m of a public place is illegal. Hence this is a loophole that fails to recognise prostitution as a legitimate way of earning.

Also, the act fails to cover other areas of trafficking. The bill also does not mention the role and functions of the concerned authorities in detail. These are some of the issues in this act that needs to be covered up for better application

This article is written by Ishika Gupta pursuing BBA L.LB from Gitarattan International Business School.

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INTRODUCTION

In different countries and among people belonging from a whole different culture it has been agreed as a whole that there are certain acts that are allowed during a war and there are certain acts which are not allowed be it towards your enemy or your own troop and this idea evolved for thousands of years and laid the foundation stone of the Humanitarian Laws that we see today.

It is found in old texts of countries like India, China and many other countries in the middle east that there have always been certain guidelines or principles that were followed when enemy states used to go on a war against each other. Like in India, we find principles like one should not kill his enemy when he(enemy) does not possess any type of arms to protect himself in texts like Ramayana and Mahabharata. Apart from that in “On the Law of War and Peace” by the jurist Hugo Grotius, he laid down certain principles and rules to be followed during a war which included prohibition regarding the use of poison and poisoned weapons, rape and killing of all those in enemy territory – even women and children, and prisoners. Thus, the need to have a fixed codified law to honour the basic human rights and needs that cannot be curbed in any situation was felt by everyone.

History of International Humanitarian Law

Henry Dunant for the first time in 1862 came ahead and published Un Souvenir de Solférino as he was deeply moved by the battle fought in Solférino and it’s consequences along with proposing that nations at war during the wartime should mandatorily form some kind of relief societies or temporary nursing facilities to provide due care to the wounded soldiers and citizens. This exact incident first led towards establishing the International Red Cross in 1863 and then Geneva Conventions in 1864.

Although The first attempt to bring together existing laws and customs of war in a document, and to impose them on an army in battle, was the “Lieber Code” (1863). This was intended solely for Union soldiers fighting in the American Civil War, and as such did not have the status of a treaty.

In 1864 the first Geneva Convention “for the Amelioration of the Condition of the Wounded in Armies in the Field”, for the first time introduced the idea of having an International Humanitarian Law and also explained the need of having the same. The first Geneva Convention was a success as twelve nations came together agreeing on certain principles and rules to maintain during wartime along with agreeing to guarantee neutrality to medical personnel during war and signed the Convention. In that same convention, they also adopted a special emblem to mark this togetherness of the nations and this emblem, later on, became the symbol of the International Red Cross Society in 1870.

Development of International Humanitarian Law

After the first Geneva Convention, The Hague Peace Conferences in 1899 and 1907 led to The Hague Conventions which worked and implementations of various international treaties introduced in the previously held Peace Conferences to govern the conduct of war. There were many Principles or Rules or limitations on armaments among the countries at war during the wartime was put up as proposals and based on the votes of the countries present at the conventions they were included as terms in the international treaties between the countries at war, for example, a prohibition on the use of air bombs and chemical warfare was proposed as it the consequences of using such weapons was previously observed. In conclusion, these two Conventions laid down a basic practice of having meetings with representatives from multiple Nations and discuss the interstate policies and form International Laws to be followed by all the present nations. These Conventions, in reality, paved the way for the formation of the League of Nations after World War I in 1919.

World War I

Among the first notable policies that were signed in these conventions were, on 8 February 1928 the use of all kinds of a chemical weapon was permanently banned in warfare after observing the tremendous effect of mustard gas and alike weapons which were used in World War I, in the Biological Weapons Convention in 1972 and the Chemical Weapons Convention in 1993.

World War II

After World War II the governments adopted the four Geneva Conventions of 1949 rewriting the existing convention with the agenda of protecting civilians during warfare when they find themselves under the control of the enemy State. The Geneva Conventions of 1949 was adopted by every single Nation in the world and it was after the formation of the United Nations in the year 1945 the Protocols proposed, had a very broad acceptance and their provisions are considered as customary law to be implemented in the respective countries by the respective Governments.

Here we see a gradual shift of the main focus that these Conventions or the International Humanitarian Laws as at the beginning the sole agenda that they had is to ensure the lives of the soldiers who are actually fighting in the war for their country but after witnessing two world wars they realized that during warfare not only the soldiers get exposed to the potential threat from the enemy state but also the lives of the civilians gets heavily affected by it. So they decided to focus more on civilian safety and hence they introduced two protocols whereas Protocol I deals with international armed conflicts, Protocol II with conflicts of a non-international nature.

International Committee of Red Cross

ICRC was set up in the year 1863 after the first-ever Geneva Convention where the States decided that all the soldiers irrespective of what country or side they belong to in a war if wounded should be taken care of and also laid down a set of ten articles explaining the rules regarding the same.

ICRC has always been the torch bearer in the fields of International Humanitarian Law and has always been closely attached to it. It was ICRC who after every world event like world wars or natural calamities used to go to the respective governments and urged them to make the changes in the policies to be better suited to the people in the society with their current mindset. When the focus of the International Humanitarian Law changed from the safety of the soldiers to the safety of the civilians it urged the governments to expand their reach of the International Laws so that the issues like civilian safety, the safety of prisoners of war, sea borders during warfare gets covered.

The red cross and red crescent emblems of the International Committee of the Red Cross were enshrined in the Geneva Conventions in 1864. But in order to make the protection they represent more easily acceptable to a diverse global audience, an additional emblem – the red crystal – was introduced in 2005.

The Aftermath

After the two world wars and an era of cold wars between the prominent nations on earth when gradually the condition started settling in the Humanitarian Laws also changed its approach. w.

Later in !980s it was realized that it is not enough to only make International Laws to protect basic Human rights but it is very important to aptly implement them in each country and make the people in each country aware about the International laws so that people actually follow it. It was important for the civilians because in wartime they should be aware of the rights they have but also it was very important to make the military of each nation to be aware of the laws as only then they would refrain themselves from doing anything forbidden in the International Humanitarian Laws even to the citizens of the enemy states during warfare.

Conclusion

In this article, it is decided how and why the concept of having an International Humanitarian Law evolved for the very first time and its development till today’s era. Humanitarian Laws are ever-evolving as the rights of Humans are ever evolving depending on the circumstances they are facing. But that does not mean that the efforts of the Geneva Conventions or The Hague Conventions went in vain as those conventions provided us with the basic format and the procedure of having the modern International Humanitarian Laws as per the needs of the changing society and humans.

This article is written by Sagnik Chatterjee, who is currently in IInd Year pursuing BA.LL.B, from Symbiosis Law School, Pune.

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INTRODUCTION

Competition is the act of the sellers individually seeking to acquire the patronage of buyers in order to achieve profits or market share. The Monopolies and Restrictive Trade Practices Act, 1969 was replaced by The Competition Act, 2002 which was enacted by the Parliament of India in 2002. Its purpose is to govern Indian competition law. It has been amended twice after its enactment i.e. The Competition (Amendment) Act, 2009 and The Competition (Amendment) Act, 2007. The two major characteristics of the Act is the structure it gives for the formation of the Competition Commission, and the instruments it provides to avoid anti-competitive practices and to develop positive competition within the Indian market.

Objectives of the Act

The Act seeks to bring the legal structure and instruments to assure competition policies are met and to avoid anti-competition practices and provide for the penalisation of such acts. The Act safeguards the free and fair competition which protects the freedom of trade, which in turn protects the interest of the consumer. The Act seeks to prevent monopolies and also to prevent unnecessary intervention by the government. The major objectives of the Competition Act, 2002 are as follows:

to provide the framework for the establishment of the Competition Commission
to prevent monopolies and to promote competition in the market
to protect the freedom of trade for the participating individuals and entities in the market
to protect the interest of the consumer

Prohibition of certain agreements under The Competition Act 2002

No enterprise or association under this Act shall enter any sort of the agreement for the production, deliver or supply, production, distribution, storage, acquisition or control of products or services which might cause any sort of appreciable adverse effect on the competition in Indian markets. Any such an agreement which is entered in contravention of provisions as contained in subsection (1) shall remain void.

Any agreement which shall directly or indirectly determine the purchase or sale prices of goods and/or services or limits or controls the production, supply, markets, technical development, investment or provisions of such services or good, or shares the market or source of production by way of allocation of the geographical area of market or type of goods or services or a number of customers in the market or directly and/or indirectly results in bid-rigging or collusive bidding, shall be presumed to have an adverse effect on the competition and shall stand void under The Competition Act 2002.

Here the term bid-rigging means any sort of agreement between the business enterprises or any business entity who are engaged in identical production or trading of goods or provisions of service and which might affect the elimination or reducing the competition for bids or adversely affect the manipulation of the process of bidding.

Any such agreement among the person or business body at any level of market in respect to production, supply, distribution, storage, sale or trade of goods or services including tie-in arrangements, exclusive transfer agreements, exclusive distribution agreements, denial to deal and resale price maintenance shall be taken into the account of subsection (1) of The Competition Act 2002 and is taken into account to have an appreciable adverse effect on the competition in markets in India and shall be considered void under The Competition Act 2002.

Abuse of dominant position

The abuse of a dominant position is prohibited by Section 4 of the Competition Act. Under this provision of The Competition Act 2002, no enterprise must be permitted to abuse its dominant position. By this, we mean that if an enterprise is directly or indirectly imposed of any unfair or discriminatory means to condition in purchase or sale of any sort of goods or services or in prices in purchase or sale of any sort of goods and/or services or by any means limits or restricts the production of goods or services and the market thereof and/or limits or restricts any technical or scientific developments relating to the goods or services to the prejudice towards the consumers. Or indulges in any means or practices which can end in denial of market access or makes any conclusion of contracts which are subject to acceptance to other parties of any supplementary obligations in their nature or per its commercial usage or in connection to the topic of such contracts. Or used the dominant position in any other relevant market to enter it, then it will have considered the abuse of its dominant position to alter the competition.

Remedies

Remedies contrary to AAEC agreements and abuse of dominant position were provided by the Competition Commission of India. Upon a review and enquiry into the alleged practices the Competition Commission may pass the subsequent orders:

Direct the discontinuance of such practices
Impose a penalty that’s lower than 10% or the turnover of the preceding three financial years; within the case of a cartel the penalty shall be 10% or three times the turnover of every financial year and shall continue for the period of continuance of such practices
Direct the modification of such an agreement or abuse so as to decrease its adverse effect upon the competition of the market
Pass any order that it may so deem fit.

Competition commission

The Competition Commission of India is organized under the Competition Act, 2002. It is a legal body whose power is to govern and enforce the Competition Act including penalties. It was established when the need for a healthy competitive environment became necessary following liberalisation under the Vajpayee government.

The Commission is composed of a chairman and a minimum of 2 board members and a maximum of 6 board members. These members are required to have a minimum of 15 years of experience in their respective fields. Its goals, duties and powers are specified in the Competition Act, 2002. Its main duty and object are to ensure that the Indian markets maintain a healthy and fair competitive environment and is granted the power to ensure such an environment and penalise any acts adversely affecting its duties.

Regulation of combination

Under the Competition Act 2002, the regulation of combinations refers to the procurement of one or more enterprises within the market by one or more person with the help of a merger or amalgamation of enterprises where —

The parties to the acquisition, whose control, shares, voting rights or assets have been acquired or being acquired jointly, be it either in India or outside India.

The Group to which the enterprise whose control, shares, assets or voting rights are acquired or being acquired after the procurement is either in India (with assets useful more than four thousand crores or turnover of more than twelve thousand crores), or outside India (with assets of value more than two billion US Dollars or of turnover more than six billion US dollars).

Acquisition of control by a person over an enterprise when such person already has direct or indirect control of another such enterprise which is engaged in the production, distribution, trading of similar or identical or substitutable goods or services, the enterprise over which the control has been acquired along with the enterprise which is already in control of the acquirer, be it in India (of assets more than one thousand crores or turnover more than three thousand crores), or outside India (of value more than five hundred million US dollars or turnover more than 15 million US dollars).

No person shall enter such a combination which may cause or is likely to cause an appreciable adverse effect on the competition within the relevant market in India and all such combination can be deemed void under the provisions of the Competition Act 2002.

Conclusion

Thus, The Competition Act 2002 is a comprehensive and meticulously carved out to meet the requirements of the new era of the market economy, which has dawned upon the horizon of the Indian economic system. It is in simultaneity with other sets of policies like liberalized trade policy, relaxed FDI norms, FEMA, deregulation etc, that would ensure uniformity in overall competition policy. It’s just a matter of time when the Act is made effective and CCI becomes functional, which would, in turn, help realize our aspiration to catch up with the global economy. However, the Act is a true reflection of changing the economic ambience of our country and is well equipped to encourage fair competition and take care of encroaching market practices, facilitate domestic players vis-à-vis outsiders, safeguard the interests of consumers and thus, ensure vibrancy and stability in the Indian market.

This article has been written by Parul Sharma, pursuing BBA LLB from Centre for legal studies Gitarattan International Business School GGSIPU.

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INTRODUCTION

In recent times there are several movements that have been initiated to give victims of criminal cases certain rights in the court proceedings. As compared to justice in a broad sense, social justice is a newer concept, especially when dealing with the rights available with the victim. The main agenda of social justice is to protect the rights of the victim and make him exercise his rights freely.

To fulfil that agenda Criminal Victims Rights Act (CVRA) was introduced to take into consideration the victim’s right before and during the criminal proceedings.

Challenges in exercising the rights

One of the major concerns of the victims is regarding their employment while they are summoned in the court of all. Its remedy is provided on the state to state basis. Some states prohibit an employer from terminating the victim while he is attending the court’s proceedings. While some states do not grant such relief to the victim and they leave it to the employer to decide the course of action.

It is also said that the victim has the right to attend those proceedings at which the defendant has the right to present. But in certain cases, the victim’s right is limited to the extent where he himself is a witness. This limitation is set by the rule in order to prevent the witness from getting influenced by the testimony of other witnesses during the court proceeding. This is not an absolute rule; it applies as per the discretion of the judge.

The victim is also given the advantage of having a support person present with him during the proceedings, for him to be able to exercise his rights properly. The support system could be anyone, he can be a family member, an advocate or any trusted person by the victim. This right of the victim also obliges the state to provide a victim, who does not have a support person, with a support person or an advocate to represent the victim.

In the majority of criminal cases, the state is also required to reimburse the victim of the loss he has to incur because of the criminal act. It is irrelevant whether the person who has committed the crime is convicted or not.

The victim is guaranteed the right to be heard in the court proceedings. Along with that, the court facilitates an arrangement of “victim-offender mediation” setup. Wherein the victim or the other members of his family who have survived meets the offender or the convict to discuss the future course of action.

Protection of Privacy of the Victim

Privacy of the victim is a major concern when it comes to criminal cases. There always lingers the fear in victim of harassment or revenge by the offender. This is one of the major obstacles in the criminal cases which hinder the victim from attending the criminal procedure. The victim may restrain themselves from providing any details related to them or the offender because of the fear of retaliation. The victim will always be anxious about as who could have access to his personal details. The court provides the victim to protect his privacy by not providing his personal information to the third party. His name, identity, place of employment, phone number, etc is kept at high privacy.

Duty of the State

It is the duty of the state to make resources accessible and available to the most underprivileged non-state actors. The marginalised income division between the rich and poor is increasing at a fast rate. The rich are getting richer and the poor are getting poorer. There is a widespread population around the world who are experiencing extreme and absolute poverty. This prolonging and persistence existence in poverty is in itself is injustice. Those who are living in poverty are denied many fundamental rights. Even those who are stuck in the countries where continuous war and attacks are witnessed are also denied several fundamental rights as mentioned in the framework of Charter of the United Nations and also mentioned in Universal Declaration of Human Rights. The injustice has several faces including hunger, vulnerability, discrimination, poor health due to lack of medical facility. The increasing poverty is an indication of the rising refugees and other displaced victims of such circumstances around the world.

The non-profit organisation requires full-time work like any other organisation and is the least paid sector with negligible social benefits. India has a welfare nature of the state and its duty is to provide social welfare to its citizens. Despite the fact that India is facing extreme poverty and population challenge, it is able to provide and have a better health system in the whole world at an affordable cost.

The state with strong and weak legal protection towards victims has a huge role to play while determining whether the victim can exercise his right or not.

Notification of case events

The most fundamental right that any victim seeks is the right to be kept informed by the criminal justice system of the country. It is very essential for the victims to know that rights available with him to be able to fairly participate in the criminal proceedings. Certain core rights are guaranteed to victims, for instance, right to a speedy trial, right to apply for compensation, right to attend criminal justice proceedings, etc.

In addition to the core rights, a few more rights were given to the victims through the constitutional amendment. These include victims to be treated with fairness, respect and dignity, the right to attend the trial and other proceedings, etc. One of the most fundamental rights of the victim is a right to be heard during the court proceedings which has the potential to affect their interest. Certain amendments are also made to make the criminal proceedings more inclusive by introducing open-ended language to make the proceeding fair for the victim.

Conclusion

With the growing number of cases, it has become very essential for the court to keep in mind the rights available with the victim and the offender. There are certain rights which are absolutely essential and must be guaranteed to the victim. To make the court proceedings more reliable and to gain the faith of the people in the judiciary, courts and state must protect the victim’s right.

This article has been written by Nimisha Mishra, a second year student of NALSAR University of Law.

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INTRODUCTION

Human trafficking, also known as trafficking in persons or modern-day slavery, is a crime that involves the exploitation of a person for compelled labour or a commercial sex act. The initial consent by a person will be irrelevant if it was obtained employing fraud, deception or coercion. A child cannot consent to be trafficked. Transporting a child into exploitative conditions constitutes trafficking. Trafficked women are typically acquired by kidnapping, purchase, or lured with false incentives for jobs and a better life. Once caught up in the sex trafficking industry, women and children find themselves in situations of forced prostitution, sweatshop labour, or exploitative domestic servitude. Trafficking in persons should be understood as a process rather than as a single offence. It need not involve the crossing of borders it can occur within a country.

Reasons and Impact of Human Trafficking

POVERTY Makes people more desperate and vulnerable to exploitation.
DEMAND For commercial sex in Ireland; ‘sex tourism’, often involving children, in other countries
PORNOGRAPHY Desensitises people to sexual objectification dehumanises women and distorts men’s attitudes towards, and expectations of, sex.
PROFIT One of the most lucrative illegal trades, along with drugs and weapons.
GENDER INEQUALITY Sexual objectification of women and girls in our society. The ‘girl-child’ seen as less valuable in some cultures. Selling of girls by parents.

Impacts of sex trafficking on the victim

Lack of trust; anger; sadness; fear; insecurity; shame; guilt; confusion; depression; terror; a sense of helplessness; Post Traumatic Stress Disorders (PTSD) – flashbacks, reminders, poor sleep patterns, etc.
Sexually transmitted diseases
Pregnancy

Constitutional and Legislative Provision in India

Trafficking in Human Beings or Persons is prohibited under the Constitution of India

Article 23– Protects against exploitation, prohibits traffic in humans and beggar and makes this practice punishable under law.

Article 24– protects children below age 14 from working in factories, mines or other hazardous employment.

The Immoral Traffic (Prevention) Act, 1956 (ITPA) is the premier legislation for prevention of trafficking for commercial sexual exploitation.

Criminal Law (Amendment) Act 2013 has come into force wherein Section 370 of the Indian Penal Code has been substituted with Section 370 and 370A IPC which provide for comprehensive measures to counter the menace of human trafficking including trafficking of children for exploitation in any form including physical exploitation or any form of sexual exploitation, slavery, servitude, or the forced removal of organs.

Information Technology Act, 2000

The act penalises transmission of any such material in electronic form which is inappropriate and lascivious. This act also addresses the problem of pornography.

Section 67A– Punishes publication or transmission of material containing sexually explicit act in electronic form.

Section 68B– Punishes publication or transmission of material depicting children in the sexually explicit act in electronic form.

Juvenile Justice (Care and Protection of Children) Act, 2000

The law is relevant for children who are vulnerable and are therefore likely to be the victim of trafficking. It protects juveniles in need of care and protection.

Goa Children’s Act, 2003

This act is defined precisely in trafficking and it includes every type of sexual exploitation in the definition of sexual assault. Manager and owner of the premises are responsible for the safety of minors or children in hotel premises. There are strict laws on about the safety of children and publishing pornographic materials.

Protection of Children from Sexual Offences (POCSO) Act, 2012

POCSO Act, 2012, which has come into effect from 14th November 2012 is a special law to protect children from sexual abuse and exploitation. It provides precise definitions for different forms of sexual abuse, including penetrative and non-penetrative sexual assault, sexual harassment.

There are other specific legislation enacted relating to trafficking in women and children Prohibition of Child Marriage Act, 2006, Bonded Labour System (Abolition) Act, 1976, Child Labour (Prohibition and Regulation) Act, 1986, Transplantation of Human Organs Act, 1994, apart from specific Sections in the IPC, e.g. Sections 372 and 373 dealing with selling and buying of girls for prostitution.

State Governments have also enacted specific legislation to deal with the issue. (The Punjab Prevention of Human Smuggling Act, 2012).

Measures taken by the Indian Government

Intending to tackle the menace of human trafficking, Ministry of Home Affairs, Government of India has undertaken several measures such as:

Administrative measures and interventions

Anti-Trafficking Cell (ATC)

It was set up in the Ministry of Home Affairs (MHA) in 2006 to act as a focal point for communicating various decisions and follow up on action taken by the State Governments to combat the crime of Human Trafficking.

Advisories

To improve the effectiveness in tackling the crime of human trafficking and to increase the responsiveness of the law enforcement machinery, MHA has issued comprehensive advisories to all States/UTs:

Ministry of Home Affairs’ scheme

Ministry of Home Affairs under a Comprehensive Scheme strengthening law enforcement response in India against Trafficking in Persons through Training and Capacity Building has released fund for the establishment of Anti Human Trafficking Units for 270 districts of the country.

Strengthening the capacity building

To enhance the capacity building of law enforcement agencies and generate awareness among them, various Training of Trainers (TOT) workshops on combating Trafficking in Human Beings for Police officers and Prosecutors at Regional level, State level and District level were held throughout the country.

Judicial Colloquium

To train and sensitize the trial court judicial officers, Judicial Colloquium on human trafficking are held at the High court level to sensitize the judicial officers about the various issues concerning human trafficking and to ensure speedy court process. So far, 11Judicial Colloquiums have been held.

CONCLUSION

Human Trafficking happens in nearly every country in the world, developing or developed countries. We are now living in a world where human trafficking is the fastest-growing criminal offence. 75% of human trafficking is for sexual exploitation and are female. And over 50% of all its victims are children. These individuals are forced to work every single day without pay, under threat of violence, and they’re unable to walk away. It is a violation of the fundamental human rights of the victim and affects the normal functioning of people in society. It is a global issue that must be addressed by all. We should do our bit as individuals, families, communities and the larger society to fight and eliminate this evil in our society and the world.

This article is written by Gaurav Lall pursuing BBA LL.B. (Hons.) at United World School of Law.

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INTRODUCTION

Both Cheating and Forgery are considered as crimes against the property of a person. They might sound similar to a layman but they are not the same. But, before highlighting the differences, it is important to analyse the offences of cheating and forgery independently.

Cheating under the Indian Penal Code

Cheating is defined in Section 415, Chapter XVII of The IPC as –
“Whoever, by deceiving a person, fraudulently or dishonestly induces the person so deceived to deliver any property to a person, or to consent that a person shall retain any property, or intentionally induces that person so deceived to try and do or omit to do anything which he wouldn’t do or omit if he were no so deceived, and which act or omission causes or is probably going to cause damage or harm to a person in body, mind, reputation or property, is claimed to ‘cheat’.”
To hold an individual guilty of cheating as defined under section 415 of the IPC, it’s necessary to point out that he had the fraudulent or dishonest intention at the time of creating the promise with an intention to retain the property.
In other words, section 415 requires deception of a person

1. Inducing that person to:

(i) To deliver any property to a person, or
(ii) To consent that a person shall retain any property

intentionally inducing that person to try and do or omit to do anything which he wouldn’t do or omit if weren’t so deceived and which act or omission causes or is probably going to cause damage or harm to a person, anybody’s mind, reputation or property.

The second class of acts set forth within the section is that the doing or omitting to do anything which the person deceived wouldn’t do or omit to do if he weren’t so deceived. Within the first-class of cases, the inducing must be fraudulent or dishonest. With the second class of acts, the inducing must be intentional but not fraudulent or dishonest – Hira Lal Hari Lal Bhagwati v. CBI, 2003 (5) SCC 257

The ingredients of an offence of cheating are:

(i) There should be fraudulent or dishonest inducement of an individual by deceiving him,
(ii) (a) the person who is deceived should be induced to deliver any property to any person, or to consent that a person shall retain any property; or
(b) the person so deceived should be intentionally induced to try and do or omit to do anything which he wouldn’t do or omit if he weren’t so deceived;
(iii) In cases under (ii)(b), the act or omission should be one which causes or is probably going to cause damage or harm to the person induced in body, mind, reputation or property – S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241.

The following illustrations will help in further understanding the nuances of this section.

(a) A, falsely pretends to be within the government officials, and intentionally deceives Z, and thus dishonestly induces Z to let him wear credit goods that he doesn’t mean to pay. A, cheats.

(b) A, by putting a counterfeit mark on a piece of writing, intentionally deceives Z into a belief that this text was made by a particular celebrated manufacturer, and thus dishonestly induces Z to shop for and buy the article. A, cheats.

(c) A, intentionally deceives Z into a belief that he means to deliver to Z a particular quantity of indigo which he doesn’t intend to shall deliver, and thereby dishonestly induces Z to advance money upon reliance of such delivery. A, cheats; but if A, at the time of obtaining the cash, intends to deliver the indigo, and afterwards breaks his contract and doesn’t deliver it, he doesn’t cheat, but is liable only to legal action for breach of contract.

Forgery under the Indian Penal Code (IPC)

Forgery is defined in Section 463, Chapter XVIII of The IPC as –
“Whoever makes any false document or false electronic record or a part of a document or electronic record, with intent to cause damage or injury, to the general public or a person, or to support any claim or title, or to cause a person to give up property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud could also be committed, commits forgery.”

The Supreme Court within the case of Sheila Sebastian v. R. Jawaharaj, (2018) 7 SCC 581 had observed that Section 464 defines one among the ingredients of forgery i.e. making of a false document and so as to sustain a conviction under Section 465 (Punishment for Forgery), first it’s to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should even be satisfied.

The Ingredients of an offence of Forgery are:

Section 464 explains what constitutes a false document. As per the section, an individual is claimed to form false document or false electronic record –

1.First. – Who dishonestly or fraudulently –

a. Makes, signs, seals or executes a document or a part of a document;

b. Makes or transmits any electronic record or a part of any electronic record;

c. Attaches any electronic signature on any electronic record;

d. Makes nay mark denoting the execution of a document or the authenticity of the electronic signature,

With the intent of causing to be believed that such document or a part of a document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of an individual by whom or by whose authority he knows that it had not been made, signed, sealed, executed or affixed; or

Secondly. – Whoever, in the absence of lawful authority, by dishonesty or fraud, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it’s been made, executed or affixed with electronic signature either by himself or the other person, whether such person be living or dead at the time of such alteration; or

Thirdly. – Who by dishonest or fraudulent intentions causes a person to sign, seal, perform or alter a document or an electronic record or to affix his electronic signature on any electronic record being aware of the fact that such person due to his unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he doesn’t know the contents of the document or electronic record or the character of the alteration.

2. Fraud. – The Supreme Court within the case of India Bank v. Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550 had held that forgery is that the false making of any written instrument for the aim of fraud or deceit. So, fraud is an important ingredient of forgery.

The following examples will help in further understanding the offence of Forgery.

(a) A, signs his own name to a bill of exchange, intending that it’s going to be believed that the bill was drawn by another person of an equivalent name. A has committed forgery.

(b) A, draws a bill of exchange upon a fictitious person, and fraudulently accepts the bill within the name of such a fictitious person with the intent to barter it. A commits forgery.

Difference between Cheating and Forgery

From the above analysis, we get the subsequent differences between the offences of Cheating and Forgery.

Cheating is roofed under Section 415-420 of the IPC. Forgery is roofed under Section 463-477 of the IPC.
Cheating carries a punishment of seven years and/or fine. Forgery carries a punishment of two years and/or fine
Cheating could also be caused by oral statements or documents. Forgery is usually caused on a document
In cheating, the wrong-doer deceives an individual and obtains property or other profit whereas forgery could also be committed by drawing a sum of cash from a checking account and other properties, to say it as of right basing it upon the concocted or forged documents
Cheating may cause damage or harm to the body, mind, reputation or property. Forgery may cause damage or harm to the title deeds and property only
The offence of cheating is related to the ‘offences against property’ while forgery is an offence associated with ‘documents and property marks’
Cheating relates to entire property while forgery relates to the title of the property and is indirectly related to property
Cheating can be said to be committed with or without the awareness of the owner of the property that he is being cheated, by inducing the owner of the property, who delivers the property to accused. Forgery is said to be committed without the owner being aware
Cheating is considered to be a wide offence which incorporates forgery under its ambit while forgery is often committed for the aim of cheating

The author, Nadeem Siddiqui, is a 2nd-year student of B.L.S. L.L.B. at Government Law College, Mumbai, Maharashtra. He is currently interning withLexpeeps.in.

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This article is written by Mohit Bhardwaj. A 2nd year Law student, currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University. In this article, the author discusses the defence for negligence i.e. Contributory negligence. To substantiate the concept, reference is made to all the statutes covered by the topic, with relevant illustrations and case laws.

INTRODUCTION

The expression Contributory negligence means an act of negligence in which both the defendant and the plaintiff are contributors. In other words, Contributory negligence means failure to take reasonable care of one own self.

Contributory negligence is the plaintiff’s failure to exercise reasonable care for their safety. A plaintiff is a party who brings a case against another party (the defendant). Contributory negligence can bar recovery or reduce the amount of compensation a plaintiff receives if their actions increased the likelihood that an incident occurred. Often, defendants use contributory negligence as a defence.

For example- A bus driver(defendant) is driving his bus at a very fast speed and one of the passengers of that bus is waving his hand outside the window of the bus and he (plaintiff) got injured due to some object on the road by this action the plaintiff also contributed in the negligence so he will not be entitled to get compensation from the defendant.

Generally, in case of negligence, the defendant is held liable for his wrong act but if the plaintiff contributes in that act by not taken the due care and caution which he could have taken. Hence he is liable for his own loss and can not recover damages from the defendant.

Important points

Plaintiff has contributed to the negligence of the defendant
Negligence of the plaintiff in not avoiding the consequences arising from the negligence of the defendant
Here plaintiff is considered to be the author of his own wrong.

CASE LAWS

In the case of Shelton Vs L & W Railway(1946), while the plaintiff was crossing a railway line, a servant of the railway company who was in charge of crossing shouted a warning to him. Due to the plaintiff being deaf, he was unable to hear the warning and was consequently injured. The court held that this amounted to contributory negligence by him.

Understanding Contributory Negligence

Determining fault in an accident may be a critical aspect of insurance. An insurance policyholder may file an insurance claim seeking compensation for a loss or event that’s covered under the insurance policy. Insurance companies litigate to ensure that they are only liable for damages caused by their insured clients. As well, defence lawyers of the insurance companies typically plan to limit responsibility to the littlest extent possible.

Reviewing actions that led to an accident, insurers and therefore the courts determine the way to assign fault. The determination of fault will ultimately lead to deciding how much the insurer must pay as a result of the insurance claim. Insurers seek to pay as little as possible for a claim so as not to affect the company’s profitability.

In some cases, the party initiating a claim for damages may be found blameless. For example, if the insured’s property is up to code but damaged by a catastrophic event, the policyholder is likely to receive full compensation up to the coverage limit. In other cases, the individual filing a claim may be found to have contributed to the damages. As an example, a claim for property lost to fire after the insured was informed of faulty wiring but chose not to repair it may be considered negligent. Courts must decide how much damage was caused by the policyholder’s behaviour–which is the essence of contributory negligence–and payment could be reduced or denied.

The plaintiff is not entitled to recover from the defendant if it is proved that-

1)The plaintiff by the exercise of due care could have avoided the consequence of the defendant’s negligence.
2)The defendant could not have avoided the consequence of the plaintiff’s negligence by an exercise of ordinary care
3)There has been as much want of reasonable care on the plaintiffs part as on the defendants part and the former cannot sue the latter for the same.

The burden of proving negligence rests on the defendant within the first instance and within the absence of such evidence, it is not binding on the plaintiff to prove its non-existence

State Laws

Some states allow contributory negligence if it’s a substantial factor in producing the plaintiff’s injury. State law determines how this negligence impacts a victim’s ability to receive compensation after an accident or loss. Some states allow the reduction of benefit if the victim is partially responsible, while others deny payment if the victim has any fault in an accident.

Contributory Negligence vs. Comparative Negligence

Comparative negligence is employed to assign fault or blame during a claim by determining what proportion fault lies between the defendant and plaintiff. With negligence, the fault is assigned, and damages awarded proportionately supported the degrees of determining negligence. The amount rewarded in an insurance claim might be calculated as follows: Plaintiff’s recovery = (Defendant’s % of fault X Plaintiff’s proven damages).

While Contributory negligence reduces the quantity of compensation a plaintiff receives, Comparative negligence looks to assign financial responsibility in the proportion of the parties involved in causing the incident. Most U.S. states have adopted Comparative negligence over Contributory negligence either by statute or judgment.

Example of Contributory Negligence
As an example, let’s say a construction worker subject to long-term exposure to asbestos develops lung cancer. Subsequently, he dies, and the family files a lawsuit against his employer for not employing proper safety measures according to industry standards. The defendant argues contributory negligence citing that the deceased worker smoked 10 packs of unfiltered cigarettes daily for over 20 years, which could have caused or contributed to his cancer. After determining fault and awarding damages, the court reduced the amount payable by the defendant based on the plaintiff’s negligence in protecting himself from lung cancer.

CONCLUSION

Thus this defence of negligence should be distinguished from several other doctrines often applied in negligence cases: the assumption of risk, which relieves the defendant of an obligation of due care toward the plaintiff when the latter voluntarily exposes himself to certain dangers; last clear chance, which allows the plaintiff to recover albeit contributorily negligent—if the defendant had the last clear chance to avoid the mishap.

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This article has been written by Parul Sharma, pursuing BBA LLB from Centre for legal studies Gitarattan International Business School GGSIPU. In this article, she has tried to explain Cyber Pornography.

INTRODUCTION

Cyber-crime is a very broad term which includes the offences that are related to computers or the computers network for the use of communication and to send the information to another person easily and quickly. The use of internet and computers are getting people more closure in the modern society for business and e-commerce purposes, hence we understand that there are many advantages for the utilization of computers and internet and our society cannot even function properly without them.

Cyber-crime is defined as a crime in which a computer through which crime is committed like in hacking, spamming, etc or is used as a tool to commit an offence like in child pornography, etc. Cybercriminals might use computer technology to get personal information, business secrets or use internet technology for exploitative or vicious purposes. Criminals might as well use computers for the purpose of communication and storage of data or document. These people are usually referred to as hackers and cyber-crime is also called computer crime.

The Internet gives the facility to the people to connect worldwide i.e. to communicate with any person irrespective of any place, time. the internet and the computers do not bound any person with the territorial limits and give access to any person in any of the jurisdiction. It allows the people to think of and share their creativity, views and take knowledge about anything they are interested in. The way in which people share their ideas, communicate, do online transactions is one of the big reasons that the internet will continue to contour the world.

These kinds of freedom also enable computer experts to indulge in other unlawful cybercriminal activities such as hacking, bugging, cheating, fraud, etc. With the regular use of the internet in the mould of websites and blogging, people engage themselves in chatting on the internet without knowing the other person. There are many elements that have given birth to the sources concerning the society where Pornography has been a major issue in society.

Porn today is more freely and widely available on the Internet than ever before. The younger generation is, therefore, able to access it very easily and quickly than ever. This leads to the mentality of unemotional sex. And the reason behind is that we have grown up in a culture where parents feel flustered, they aren’t comfortable to have a healthy conversation about sex with their children. Well, then it’s time to open up and come out of the comfort zone to talk about the most this silent topic i.e. Pornography.

Pornography

Pornography is defined as the sexual portrayal of persons, in either words or images, created with the basic, direct aim and reasonable hope, of evoking significant sexual arousal on the part of the consumer of the material.

There hasn’t been only one definition of the law of the word pornography applied all over the world. The pornography or the pornographic material changes according to the vision and understanding of the people of various culture across the world and it has been a difficult task to define the material/content to be a pornographic content/material.

Basically, pornography is nothing but marketing of man or woman sex, shown as an object for those who get involved in sexual acts. Pornographers utilize the internet to sell their material to sex addicts and to the interested parties. Watching and keeping of these kinds of materials is illegal in India. Nowadays pornography has become a kind of a business to the society as people indulge themselves to gain the economic benefits from them.

They even put the hidden cameras and violates the privacy of the society ex: hotels, paying guest, hostels, changing rooms in the shopping complex etc. It has been a market for near about $1 trillion. Pornography existed since the pre-historic time as it was seen in the painting or rock arts.

Therefore, with emerging of time, there was an invention of photography which gave rise to pornography. The very first law which criminalized pornography was the English Obscene Publications Act 1857. The Act was applied to the UK and Ireland, and it made the sale of obscene material a statutory offence and gave the courts power to seize and destroy offending material. Pornographic film production commenced after the invention of the motion picture in 1895. Sexually explicit films exposed the producers and distributors to prosecution.

Pornography is the literature of art which have the portrait of sexuality emphasizing upon emotions and feelings. Pornography is of 2 types that is Softcore and Hardcore, where the pornography work is referred to as the hardcore content and the softcore pornography consists of nudity or partial nudity in sexual situations. Perhaps, both kinds of pornography involve nudity.

Child Pornography in India

Child pornography is an illegal act in India. Information Technology Act, 2000 & Indian Penal Code, 1860 gives protection against child pornography. Child refers to the person who is below the age of 18 years. The internet has been highly used by the abusers who reach out and abuse children sexually, globally. The internet has become a household commodity in India and its explosion has made children a feasible victim to the cybercrime.

As more homes have access to the internet, more children would be using the internet and more are the chances of falling victim to the aggression of paedophiles. The availability of easy access to the contents of pornography quickly and freely over the internet has lowered the inhibitions of the children.

Paedophiles attract the children by sharing pornographic material, and then they try to meet them for sex or to take nude photographs containing their engagement in sexual positions. Sometimes Paedophiles communicate with children in the chat room where they pretend to be teenagers or a child same age as theirs, and then they become friendlier with them to win their confidence and trust.

Then slowly paedophiles start sexual chat to help children shed their inhibitions about sex and then call them out for personal interaction. The Information Technology Act is a set of rules which made the transmission or creation of child pornography in electronic form illegal and even to surf it was made illegal. The phrase electronic form covers websites, graphics files, SMS, MMS, digital photographs etc.

The punishment prescribed for the offence of publishing, creating, sharing, downloading or browsing any electronic portrayal of children in obscene or sexually explicit manner is imprisonment for 5 years and 10 lakhs fine. Section 67 of the Information and Technology Act deals with publishing obscene information in electronic form.

Sec 67 and Sec 67A doesn’t apply on any book, paper, pamphlet, drawing, painting, writing, representation or figure in electronic form which is utilized for religious purposes or is in the concern of science, literature, art or learning. It is generally that it does not specifically define pornography or make it an offence, and does not mention child pornography. Section 67B lays down the punishment for involving in sexual explicates electronic or online contents that depict children. Inducement of children in sexual acts or into online relationships is also illegal.

The Act criminalizes online child pornography in the following situations:

Publication or transmission of any material portraying children in explicit sexual act or conduct by utilizing any computer source and communication device.
Where the user uses a computer or any communication source for watching or collecting or creating digital images or texts or promoting or downloading etc any material in any electronic form portraying children in an obscene or inappropriate or sexually explicit manner.
Growing, engaging or inducing children in online relationships with one or more children for and on a sexually explicit act or in a manner which might offend a reasonable adult on the computer resource.
Progressing abusing children online.
Recording in any electronic form is also abuse or that of pertaining to sexually explicit activities with children.

Obscenity

It has not been defined under any law/statute which penalizes, prohibits, publishing, importing, emailing, exporting and selling such obscene material or matter. The Court has the duty to analyse whether the alleged obscene content consists of obscene matter which is likely to intrigue the people and corrupt those minds who are open to such influences.

Section 292 deals with the selling of obscene books, magazines etc. Whoever sells, shares or publicly exhibits or in any manner distributes, or imports or exports any obscene book, paper, pamphlet, art, painting, drawing, representation or figure or any other obscene object which is in his/ her possession.

This section, tells that the knowledge of obscenity is not essential for the constitution of an offence. It provides punishment on first conviction with imprisonment of either description for a term which may extend to 2years and fine of 2,000 rupees, and in the subsequent conviction with imprisonment which may extend to 5 years and also fine which may extend to 5,000 rupees. Excluding the physical contact, demanding or requesting for sexual favours, displaying pornography or making sexually coloured remarks shall constitute grounds for sexual harassment and he/she shall be punished with imprisonment which may range from to 3years or fine or both, in first three cases and in fourth case imprisonment which may extend to 1 year or with fine or with both.

The punishment prescribed for the offence of any man who sees or captures the image of any women who is engaged in a private act within her private space is imprisonment of not less than a year which might exceed to three years and also with a fine and on 2nd conviction imprisonment not less than three years which might exceed to seven years including a fine.

If any person with the intent to induces a girl, who is a minor (below 18 years of age), to move from any place or force her to do any act, of which he has information that the minor girl will be forced to perform illegal intercourse with another person, shall be punishable with imprisonment which may exceed to ten years and fine for obtaining a minor girl. And if imports any girl of 21 years of age from outside the territory of India (now including Jammu & Kashmir) for the same will be punishable with 10years imprisonment and fine on such importation of girl.

In the leading case Avinash Bajaj v. State (N.C.T.) of Delhi ^[1], popularly known as Bazee.com case, an IIT Kharagpur student named Ravi Raj placed on bazee.com a listing offering an obscene MMS video clip for sale for Rs 125 per video with the username Alice-elec. Fortunately, bazee.com had a filter for posting such questionable content. Despite that the listing never took place with the description, Item 2787748- DPS Girl having fun!!! Full video + Bazee points.

An F.I.R was also filed against the bazee.com for selling such obscene material on sale. Avinash Bajaj, CEO of bazee.com was arrested by the police under Section 67 of the IT Act. Since Ravi Raj (the user who uploaded the MMS) absconded, Avinash Bajaj file a petition, seeking the quashing of criminal proceedings.

Legality of Pornography

Now let’s discuss the legality details of Pornography, our law doesn’t stop from watching pornography privately. All the law mentioned above prohibits its production, distribution, transmission, publication.

Section 67 of the IT Act 2000

Punishment for publicizing or spreading obscene material in electronic form
Imprisonment for 3years or fine of 5,00,000.
For subsequent conviction imprisonment for 5years and with 10,00,000 rupees fine

Section 293 of the Indian Penal Code (IPC) 1860

Sale, etc., of obscene objects to a young person
Imprisonment for 3years or Fine of 2,000 rupees
For subsequent conviction imprisonment for 7 years and also with 5,000 rupees fine.

Suggestions

Some of the suggestions that might be helpful are as follows:

Sex education should be made part of higher education syllabus.
Arranging sex education conferences and seminars at school, work pace and other forums for awareness.
Legislature needs to form a separate law/statute for the prohibition of pornography.

Conclusion

Cyber pornography has proven to be a threat to the whole world. It triggers the thoughts of sexual nature in an unhealthy manner in the young generation. This could be easily repressed by providing appropriate sexual education to the young generation. Pornographic content tends to influence the minds of the young generation in a manner which is unhealthy and not desirable by society as a whole.

The problem around the globe is how to restrict the children from cyber pornography and at the same time uphold the rights of adults to reach to such material. It is submitted that since the lawmakers struck down as unconstitutional, Governments all over the world can do very little to resolve. The Indian Govt. banned 800 porn sites by the year 2018.

Provisions laid down in legislation relating to cyberporn are punitive in nature. People are not given the freedom to learn and explore sexuality and due to lack of education and access to information from appropriate sources, they are the target of getting information from immoral and illegal sources. In the present situations, the best solution to this problem is education and the role of parents who must understand the responsibility of acting as teachers, friends and policeman to minor and adolescents as in many of the cases victims themselves do not have the knowledge of the ground they have been trapped into illegal acts

Citation

^[1]2005 (79) DRJ 576

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This article is written by Ishika Gupta pursuing BBA L.LB from Gitarattan International Business School. This article aims to classify the law into different heads and also tells the need for such classification.

INTRODUCTION

‘Lag’, a Teutonic word means ‘specific’ in general. Law has been derived from the same word. In simple words, a code of conduct which is specific in nature and regulates human relations and demeanour is the law. It is equally applicable to all the people of a particular state.

In a society, human beings do various activities for their livelihood, some of which are bad and some are good for the society and to control and regulate such behaviour that there is set of rules and regulations and such set is called law. Almost all aspects of life are regulated by law. Terms like human rights and fundamental rights are of great use when there are laws behind them to define, execute and implement them. If there are no such laws these terms will be meaningless. Symbol of the law indicates that justice should be impartial without and regardless of money, wealth, power and identity.

As per John Austin law as a whole is a set of those rules and regulations which are made by those men who are socially or politically of high status. In other words, a system which contains rules and regulation that the social and governmental bodies enforce in order to control human behaviour is the law. It is an amorphous set of regulations.

Need for Classification

To understand the law properly it is necessary to classify it. After classification, it becomes easy to understand the nature, scope and meaning of a particular law. The areas covered by that law can be easily identified and its enforceability can also be measured. The rules can be arranged systematically and not only it helps in the codification of law but also helps in understanding the relationship between different laws.

In India there are two main categories of law namely international law and national law, further, the national law is divided into public and private law and the chain goes so on.

Types of Law

Law can be classified into the following parts:

1. International Law and Municipal Law

International law is based upon the international agreement of treaties. It regulates the relation between different states and international persons. It tends to form a set of regulations and framework to guide states on various things like diplomacy, war, trade, human rights etc. For example, Mexico and the USA’s NAFTA is a matter of international law and so are many human rights.

Municipal laws are those which are enforceable within the boundaries of the country. it maintains the relations between citizens and also between citizens and the state. These laws can be based upon the parliamentary acts, customs or religious practices of the people of that place.

2. Public and Private Law

Public law governs the relationship between people and state. The objective of public law is to maintain the objectives of the state as mentioned in the preamble. The sources for public law include Magna Carta, natural law, bill of rights etc. Examples of public law can be constitutional law, administrative law etc. If there is any breach of law the aggrieved person may approach the court by PIL, writs etc.

Private law defines the rights and duties of people in regard to their day to day transaction i.e. it guides the legal relationship between private individuals. It is a part of the civil law system. The main objective of this law is to regulate the behaviour of individuals when they indulge with each other. The sources can be the customs, practices, traditions etc. Private law includes the law of torts and law of contracts etc. A suit can be filed if there is a breach of law.

3. Criminal Law and Civil Law

Civil law aims to regulate the relation between individuals, organizations etc. And if anyone is a victim and has suffered he is awarded compensation. In case of a suit, it is the plaintiff who is supposed to prove the offence. For instance, disputes between landlords, divorce proceedings, disputed related to property etc.

On the other hand, criminal law is involved in crimes and punishment for them. The main objective of this law is to punish for those acts which seem to be against the policy of the state. The burden of proof lies on the state. There are various penalty and in rare cases the death penalty. Crimes like theft, murder, rape etc. are covered under criminal law. In India, the Indian Penal Code is the statute for criminal law.

4. Substantive Law and Procedural Law

Substantive law is written or statutory law that regulates the relation between people or between people and state. It basically tells how the facts of the case are to be handled, as well as how to charge the particular case. It is the substance of the case that is to handle. It can function by itself and fate of the case is decided by it only.

Procedural law, on the other hand, sets the framework for the procedure of the case i.e. how the hearing will take place etc. It is a very detailed process that tells what step is to be taken next. For instance, it will decide whether a particular will go under trial or not. It needs other laws to be applied side by side.

CONCLUSION

Therefore, these are the various heads that law can be classified into and every type of law has emerged over a period of time. Since the needs of people change from time to time and the laws are made as per those needs. Hence the law must be classified properly and revised from time to time for better understanding. This also proves that a law that is convenient at present may not be suitable in future.

As per various jurists, the law is classified in order to avoid chaos or confusion in administration of these laws. As told earlier that law guides every aspect of human life and hence it is necessary that it is kept in order and understood properly so that people can apply it for the benefit of the society.

This article is written by Gaurav Lall pursuing BBA LL.B. (Hons.) at United World School of Law. The article speaks the difference between mistake of fact and mistake of law with illustrations and case laws. The provisions of IPC are also specified.

INTRODUCTION

General Defences are a set of defences, which are applied by the defendant in the Court to escape his liability in tort when the plaintiff brings an action against him. The defendant can claim the defence only if his actions fall under the specified set of conditions. If the defendant fails to prove the reason for the act, he cannot escape from his liability. There are some specific defences which are available for the wrongful acts:

Volenti non-fit injuria, or the defence of ‘consent’
Plaintiff, the wrongdoer
Inevitable accident
Act of God.
Private Defence
Mistake
Necessity
Statutory Authority.

Mistake, falling under the general defence of Torts, it can be classified into two sub-heads:

Mistake of facts
Mistake of Law

Mistake of Facts

Mistake of fact arises when any accused incorrectly interprets some fact that negates an element of the crime. This legal weapon can be used, where the accused succeeds to prove that he was mistaken to the existence of some facts or ignorant of the existence of such facts. It is a condition that such mistakes must concern to the fact, not law. Such a mistake must be reasonable and must be of fact and not of law. The legal maxim, “ignorantia facti excusati ignorantia juris non excusat” which means ignorance of fact is an excuse, but ignorance of the law is not an excuse. So it is a basic requirement to be secured under the sphere of this defence that mistake must be of fact.

Thus, it is cleared that an act will not be an offence if it is committed in an authentic manner by a person who by mistake of fact believes himself to be bound by law or who is bound by law. Such belief must be a mistake of fact not the mistake of law and that should be exercised in good faith.

Illustration

A visited B’s house with two boxes of sweets, giving it to B, A specifically mentioned that blue box is for him, whereas the red one is for C, his elder son. Afterwards, B consumed both boxes of sweets, here B cannot take the defence of mistake of fact stating that as both boxes were handed over to him, he assumed it to be his only. As, at the time of delivering the sweets itself, the conditions were specifically mentioned.

Miss X, used to get her Pomeranian dog to walk every morning. On one fine morning, while talking on the phone with her friend Miss X lost hold of her dog. While looking for her dog, she found another dog of the same breed, assuming it to be her own dog, she took it home. While later she noticed that the mark her dog had was not there and she mistakenly took another’s dog. Here, Miss X will not be liable as it was a mistake of facts.

At the same time, the mistake of fact cannot be used as a defence when it has been done knowingly, despite knowledge

Case Laws

In the case of Ayekam Angahal Singh v. Union of India, an auction was held for the sale of fishery rights, where the plaintiff made the highest bid of Rs. 40,000. The rent was 40,000 per year and the plaintiff sought to avoid the contract on the ground that he under mistake thought of Rs. 40,000 being the rent for 3 years, in this case, it was held that since the mistake was unilateral, the contract was not affected thereby the same could not be avoided.

In the case of Morrison V. Ritchie & Co., a statement was published by the defendant that the plaintiff had given birth to twins, even if the defendant had done it in good faith, he was held liable, on the ground that the plaintiff was married 2 months ago only and the defendant was held liable for the offence of defamation and element of good faith was held immaterial in this case.

Mistake of Law

Mistake of law is a legal principle referring to one or more errors that were made by a person in understanding how the applicable law applied to their past activity that is under analysis by a Court. It is no defence that the criminal defendant misunderstood or was ignorant of the law as it existed at the time. The burden is generally placed on individuals to be aware of the laws of their state or community, and thus this defence only applies in very limited circumstances. For instance, while a defendant will not be able to claim that he was not aware that murder was a crime, he may be able to argue that he was not aware of the uncertain traffic law. Specifically, the mistake of law can be used as a defence in four limited circumstances:

When the law has not been published;
When the defendant relied upon law or statute that was later overturned or deemed unconstitutional;
When the defendant relied upon a judicial decision that was later overruled; or
When the defendant relied upon an interpretation by an applicable official.

Additionally, the defendant’s persistence on any of these sources must have been reasonable, much like the mistake of fact. Thus, a defendant cannot claim that he was relying on a case from 200 years ago when it is recognized that there have been subsequent developments in the law.

Illustration

Mr S at crossing did not stop his car at a red signal. Traffic police charged him for breaking the traffic rules, here Mr S cannot plead that he was not aware of the law.

Case Laws

In the case, Grant v. Borg (1982), the person was charged under the Immigration Act 1971, for staying beyond the time limit by the leave. Here, he cannot apply for the defence i.e. mistake of law.

Provisions under IPC

“Ignorance of the Law is no excuse” but where the motive is an important ingredient, it can be used as a defence. Section 76 and 79 of the IPC deals with the general exceptions under chapter IV. Section 76 (Act done by a person bound, or by mistake of fact believing himself bound, by law)and Section 79 (Act done by a person justified, or by mistake of fact believing himself justified, by law).

CONCLUSION

In general, the mistake of fact can be used as a defence to escape the liabilities, taking the absence of mens-rea as one of the important essentials; it must have to be honest, reasonable and authentic in nature. The mistake of law is no defence to a violation of the law. It is presumed that all people know and understand the law of the land, except minors, lunatics or insane. There are few other rare exceptions to this rule.

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