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Human Rights

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Rights:-

Individuals’ positions in a state can only be defined by their rights. Individual rights are required for a person’s personal, social, economic, political, mental, and moral development. They are vital not only for man’s development but also for the development of society and social worth. A right is an individual’s claim as well as a political and societal acknowledgment. Rights have a moral character and are intertwined with responsibilities. One’s right implies one’s or another’s responsibility. Rights should be used for the greater interest of society. Moral Rights, Legal Rights, Civil Rights, Political Rights, Economic Rights, and Human Rights are the main categories of rights.

Human Rights:-

Human rights are defined as the rights that every person has the right to enjoy and have safeguarded. Some of the rights and concepts are universal by definition. Natural Rights gave birth to the concept of human rights. Human rights are a subset of traditional natural rights. Human rights do not discriminate based on race, religion, gender, or language. Fundamental rights are another name for human rights. Peace, progress, and humanitarianism are all linked to human rights. The welfare and advancement of an individual are the goals of rights.

Definition:-

Human Rights are defined as “rights relating to life, equality, and dignity of the individual guaranteed by the Constitution or enshrined in an international covenant and enforceable by Indian courts,” according to Section 2(d) of the Protection of Human Rights Act, 1993.

History Of Human Rights:-

The concept of human rights has a long and illustrious history. Religions and cultures have fought for rights and fairness throughout history. One of the UN’s founding treaties lists reaffirming faith in fundamental human rights as one of its goals. The United Nations General Assembly adopted the Universal Declaration of Human Rights in 1948. The basis for present international human rights law is contained in this paper, which was drafted by an international group chaired by Eleanor Roosevelt. Human rights law is continually changing, as are our perceptions and definitions of what constitutes basic human rights.

The Universal Declaration of Human Rights was adopted by the United Nations in 1948. It is a document that discusses basic human rights, which are rights that everyone has just because they are human. There were several issues before 1948, when there were no human rights, such as –

1. War/ Conflict

2. Violence

3. Discrimination and Racism

4. Arbitrary Arrest

5. Dictatorship, I.e., Absence of Democracy

Human Rights were created to address all of these issues. The right to life, the right to freedom, the right to justice, and the right to equality are all examples of human rights. Regardless of their differences, all humans are equal. Right to health care, right to marry and start a family, right to an education, right to work or find work, right to a home or shelter, right to freedom of expression, right to select religion, right to own property, and right to vote These are only a few of the fundamental rights that every person in the world has from birth to death. They can never be taken away from you, yet they can be limited at times.

Important Concept Of Human Rights:-

MAGNA CARTA – It is often referred to as the Great Charter. On the 15th of June, 1215, King John of England signed a charter of rights. It aimed to bring unpopular kings and a group of people together in harmony. It further said that church rights will be protected.

THE VIRGINIA DECLARATION, 1776 – The number of fundamental rights as specified in this proclamation. It also said that all men are born equal in terms of freedom and independence, as well as having some inherent rights.

UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948 – It was adopted by United Nations General Assembly. It is a document that sets out for the first time, Fundamental Human Rights to be universally protected. 

INTERNATIONAL COVENANTS, 1966 – The United Nations General Assembly adopted two covenants on 16 December 1966 

1. The international covenant on Civil and Political Rights (ICCPR) 

2. International Covenant on Economic, Social and Cultural Rights (ICESCR) 

INTERNATIONAL BILL OF RIGHTS – The International Bill of Rights is made up of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and two optional protocols.

Characteristics Of Human Rights:-

  • Human Rights are vital and necessary. 
  • Human Rights are inalienable.
  • Human Rights are associated with human dignity.
  • Human rights are unalienable.
  • Human Rights are required for the fulfilment of life’s purpose.
  • HUMAN RIGHTS ARE INHERENT IN ALL HUMAN BEINGS
  • Human rights are unalienable.
  • Human rights are in constant flux.

Human Rights Day:-

Every year on December 10th, Human Rights Day is commemorated around the world. The Universal Declaration of Human Rights was adopted by the United Nations General Assembly on this day in 1948. (UDHR).

The day celebrates the fundamental human rights that everyone has by birth, regardless of race, color, religion, sex, language, political or other beliefs, national or social origin, property, birth, or other position. They attempt to engage the general public with the UN Human Rights generalist call to action “Stand Up for Human Rights.”

Objectives Of Human Rights:-

The goal of Human Rights is to provide people a sense of security. To cultivate each person’s identity, self-esteem, and respect for the human dignity of all individuals. The basic goal of granting people fundamental rights is to foster diversity respect, understanding, and appreciation. It also aspires to promote democracy, social justice, and equality.

The present article has been written by Kiran Israni, 2nd Year Law Student of Baba Saheb Ambedkar College of Law, Nagpur.

The present article has been edited by Shubham Yadav, 4th year Law student of Banasthali Vidyapith.

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Bitcoin:- How It Functions As Property Law?

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Introduction:-

Bitcoin is very similar to real estate transfers in that it covers almost all aspects. The transactional characteristics, such as the Buyer and Seller, the price to be paid as “consideration,” and the endorsements, are strikingly similar. But it’s worth noting that Bitcoins are scarce, and they’re not particularly valuable. However, much like any other real estate transaction, Bitcoin transactions have public records. The Bitcoin Database is a public record that keeps track of all Bitcoin transactions. Anyone with access to a computer can see any Bitcoin transaction, just like when you go to the Registrar’s office to find out about title deeds. However, unlike property, where the government imposes a stamp duty to give credence to the validity of the transfer, there is no governmental monitoring or cooperation with the operations.

Bitcoin As ‘Property’ Or ‘Goods’:-

At the very basic level, what becomes the foundation for Bitcoin are the computer codes, thus, Bitcoin does not exist in physical/tangible form. Hence, the question that pops up is to regulate the Bitcoin transaction, could be deemed to be Movable property under the laws?

It is important to note that the Transfer of Property Act, 1882, is the main statute that governs the property elements. However, while this Act covers characteristics of moveable property, it does not define what constitutes movable property, which is crucial to determine if Bitcoin falls under its scope. The term “movable property” is defined in the General Clauses Act of 1897, and it is taken from there for all purposes. Movable property is defined in Section 3(36) of the Act as:

 “Movable property” shall mean property of every description, except immovable property.”

The scope of this term is quite broad, and it includes intangible properties as well. It is important to note that the term “goods” is defined as follows in Section 2(7) of the Sales of Goods Act 1930:

“Goods means every kind of movable property, other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale”.

As a result, Bitcoins might be considered goods because they are transportable property. However, the judiciary has not put much effort into determining whether the intangible property also applies in the virtual sphere.

Tata Consultancy Services v. State of Andhra Pradesh:-

However, in the case of Tata Consultancy Services v. State of Andhra Pradesh, the Hon’ble Supreme Court has opined that –

There is no distinction between tangible and intangible property in Indian law. A ‘goods’ might be either a tangible or intangible asset. It would be considered goods if it exhibited the following characteristics: (a) utility; (b) ability to be purchased and sold; and (c) ability to be transported, transferred, delivered, stored, and possessed. If a piece of software, whether customized or not, fits these criteria, it is considered good.

Given the current legal structure around the intangible property, it is possible to conclude that Bitcoin fits within this category.

American Law For The Property:-

Three tests are mandated in the American legal system for determining the existence of a property right, which are reprinted below:

  1. There is a specific definition of an interest;
  2. It is capable of exclusive possession or control; and 
  3. The putative owner has demonstrated a valid claim to exclusivity.

To begin with, the individual who buys Bitcoin has a valid stake in it, and the value of that interest can be assessed in terms of the country’s currency. Second, there is no doubt that the individual who purchases Bitcoins has exclusive control of them. It’s similar to real estate, where a person holding the title deeds can only deal with that property; similarly, there are credentials in Bitcoin. Finally, but certainly not least, a person has a legitimate claim to it because when Bitcoin is transacted, it is recorded in the network’s chain of transactions, which eliminates the possibility of a fraudulent transfer. 

Thus, it could be said under that the American Legal System, there is recognition of Bitcoin as intangible property.  

Bitcoin As ‘Commodity’:-

When Bitcoins are classified as intangible property, it’s important to determine if they also meet the criteria of a commodity. Similarly, the transportable property, or commodity, is not defined, and there is no legal precedent on the subject. However, according to the dictionary, it refers to “every moveable thing that is purchased and sold (excluding animals), a commodity of trade, and a movable article of value or something that provides ease or advantage, especially in commerce.”

In the matter of Tata Consultancy (Supra), Justice Sinha stated that the term “commodity” refers to commodities of any sort, as well as something useful or a commercial item.

As a result, Bitcoins fall under the definition of a commodity, as well as intangible property, under Indian law.

Crypto-Currencies As ‘Asset’:-

While Bitcoin transactions are still unregulated, the income and gains generated by Bitcoin transactions have been taxed by the taxing authorities. As a corollary, they might be considered an asset because they are taxed.

As a result, it could be claimed that the government is gradually moving toward regulating Bitcoin transactions.

Conclusion:-

There has been a steady increase in Bitcoin investment across India and the rest of the world. These investments’ fate is inextricably linked to the fate of Bitcoins. As a result, it is vital to preach on the Legal Aspects of Bitcoins and their Regulation. Based on the foregoing legal position and authorities, it may be determined that it is most appropriate for intangible property and commodities. However, before any judicial pronouncements by a court of law, the very minimum might be said.

The present article has been written by  Kiran Israni, 3rd Year Law Student of Baba Saheb Ambedkar College of Law, Nagpur.

The present article has been edited by Shubham Yadav, 4th year Law student of Banasthali Vidyapith.

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Journalists:- Frontline Workers During The Pandemic

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Media personnel are at risk during natural disasters and are supposed to consider as frontline workers availing them with vaccine drive and insurance benefits.

Personnel from central and state police organizations, civil defense volunteers, military forces, jail staff, revenue officials involved in surveillance, disaster management volunteers, and municipal workers, according to the center, are frontline workers.

Other kinds of personnel, such as government departments of banking, railways, and journalists, are also included as frontline workers in several Union territories and states. The federal government advises states to follow the guidelines set forth by the Ministry of Health and Family Welfare, but the health secretary says states can add new categories and are required to administer vaccines procured directly by the state government.

The people of the world are currently witnessing a unique way of media working and activistic activity. Media is the fourth pillar of democracy, acting as a bridge between the people and the government by identifying its flaws. This pandemic prompted many to look between the lines of one of the world’s longest written constitutions.

At this time, the population must share accurate information about current events, problems, and solutions. The media can help us get justice. Although the Supreme Court of India has established a mobile app for journalists to attend virtual hearings, they are not required to come out. In addition, the Supreme Court plans to release Indicative Notes on mobile apps and websites, which will aid in the compilation of judgments. However, fieldwork will be required to connect with citizens and solve problems. As a result, crowd exposure is unavoidable.

Because of the rise in Covid-19 disease across the country, many states have designated journalists as frontline workers, requiring them to get vaccinated first, ahead of others such as doctors, nurses, and police officers. It is critical to do so since fundamental rights apply to all citizens of the country, and media workers are no exception. Photographers, videographers, cameramen, technical workers, and editorial staff are among the frontline media professionals listed.

Frontline workers are those who work day and night to stabilize the situation, and I believe that, while others are battling for their rights, media professionals (newspapers, video, and audio sources) are left behind. Isn’t it true that they have a right to life? Well, the Federation of All India Medical Associations, The Editor Guild of India, The Kerala Union of Working Journalists, and others have addressed this issue, informing Prime Minister Narendra Modi about the inclusion of media professionals as frontline workers, which has received widespread support, including from Delhi Chief Minister Arvind Kejriwal. Journalists, like other frontline employees, are exposed to the public regularly and “cannot work from home.” They also engage with danger daily to cover public and pandemic concerns.

After the death of Vipin Chand, a 41-year-old visual media journalist in Kochi, the demand has grown even stronger. The Press Council of India had previously issued a statement. Furthermore, working without protection is difficult for them. According to the Geneva-based Press Emblem Campaign, India is one of the top three countries in the globe where journalists have died as a result of Covid-19.

According to the center’s new vaccine policy, 50% of vaccines are free, while the remaining 50% must be procured on their own. Both Biotech and the Serum Institute have taken a step back in terms of completing the order. To begin, the state governments of Tamil Nadu, West Bengal, Madhya Pradesh, Bihar, Uttarakhand, Odisha, Karnataka, and others declared journalists to be frontline workers and mandated vaccination for all, regardless of age. 

Conclusion:-

The media service is a smooth one that keeps people informed about current events. In addition, the Odisha government has announced an ex-gratia of Rs. 15 lakh for the families of journalists who died as a result of Covid-19, and Chief Minister Naveen Patnaik stated, “A total of 6,944 working journalists in the state have been covered under the Gopabandhu Sambadika Swasthya Bhima Yojana.” They would each receive a Rs 2 lakh health insurance policy.”

The journalist union, Mumbai Marathi Patrakar Sangh, recently filed a Public Interest Litigation (PIL) petition in the Bombay High Court, claiming that twelve states have declared journalists and other media personnel as frontline workers (Mumbai Marathi Patrakar Sangh v State of Maharashtra & Anr.).

The present article has been written by Kiran Israni, 3rd Year Law Student of Baba Saheb Ambedkar College of Law, Nagpur.

The present article has been edited by Shubham Yadav, 4th year Law student of Banasthali Vidyapith.

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The Maternity Benefit Act

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The Maternity Benefit Act 1961 was enacted to maintain stability in the employment of women working in factories, mines, plantations, shops, and other areas. It provides 12 weeks of paid leave to women employees before or after childbirth. 

The 44th session of the Indian Labour Conference (ILC) put a recommendation to extend the period of maternity leave from 12 weeks to 24 weeks. Later During the 45th and 46th sessions of ILC, The purpose for enhancement of maternity leave was taken into consideration and acknowledged. 

It aims to regulate the employment of women employees in certain establishments for a particular period before or after the baby is born. 

The Maternity Benefit Act originally provided a Maternity Benefit of 12 weeks. In 2017, the law was amended to extend the period to 26 weeks. 

What Is Maternity Leave?

Maternity leave is a period of leave from her work when the woman’s employer is pregnant or in other words, Maternity leaves in India is a paid leave of absence from work that allows women employees to take care of their newly born baby, and gives benefits of retaining their jobs at the same time. Maternity leave is a right of every working woman and no woman should be deprived of it. 

As per The Maternity leave Benefit Act, 1961 women employees get paid leave of 12 weeks after delivery for taking care of a newborn baby. In 2017, The Maternity leave Benefit Act was amended which brought a lot of necessary amendments in the act. 

What Were The Amendments Brought Under This Act?

PAYMENT: Payment is calculated on the basis of the average daily wage for the period of absence.

EXTENSION OF PERIOD: The Maternity Amendment 2017 has extended the period from 12 weeks to 26 weeks. The pregnant woman can divide her leave as post and pre-delivery.

Period of leave for women who are expecting before having 2 Children [Sec 5(3)]: 26 weeks

Pre–Delivery Period: up to a maximum of 8 weeks

Post–Delivery Period: remaining period out of 26 weeks.

Period of leave for women who are expecting after having 2 Children [Sec5(3)]: 12 weeks 

Pre–Delivery Period: up to a maximum of 6 weeks

Post–Delivery Period: remaining period out of 12 weeks.

ADOPTIVE MOTHERS: The period of leave is 12 weeks. The large starts from the day of adoption and is only applicable for the baby below three months of age [Sec5(3)].

COMMISSIONING MOTHERS: Maternity leave is of 12 weeks leave for the biological mother who imparts her egg to create an embryo which is then planted in another woman [Sec5(4)].

TUBECTOMY DURING PREGNANCY: In case of tubectomy, a woman is allowed to take 2 weeks to leave, from the date of tubectomy operation. 

Maternity Benefits And Indian Constitution:

Article 15 – Right to social equality.

Article 15(3) – The main objective of this article is to keep in view the weak physical position of women – “Protective Discrimination”

Article 16 – Right to social equality in employment

Article 21 – Right to life and personal liberty, therefore women employees must get all the facilities and assistance that she requires during pregnancy.

Article 39(d) – Right to equal pay for equal work

Article 39(e) – Right that health and strength of workers should not be abused

Article 41 – Provision for securing the right to work and to education

Article 42 – State shall make provision for securing just and humane condition of work and for maternity relief

Article 46 – Right to improvement in employment opportunities and conditions of the working women

Importance Of Maternity Benefits Act:

The fundamental purpose for providing maternity benefits is to preserve self-respect, to protect the physical and mental health of women, and to complete the safety of the Child. The main objective of the Maternity benefit is to protect the dignity of “Motherhood” and provide complete health care to women and their children. It also benefits to safeguard working women. 

Norms Under The Maternity Leave: 

The employer should ensure the health and safety of her employee. She must not get long working hours or difficult tasks, ten weeks before the delivery. She should not be involved in any work for 6 weeks after the delivery or miscarriage. Employers cannot discharge or dismiss a woman employee during her maternity leave.

Compensation Rules And Benefits Under The Act : 

A medical bonus is entitled in addition to maternity leave if free medical health care is not provided. Mother can further get a benefit of Rs. 6000 under NATIONAL FOOD SECURITY ACT, 2013. An additional paid-up leave of 1 month after 26 weeks of Maternity leave if women show proof of being physically or mentally unfit to join . 2 nursing breaks are allowed in between the working hours until the baby turns 15 months old.

Disadvantages Of The Maternity Benefits Act:

The Maternity Benefit Act is not applicable in establishments with less than 10 employees or in the unorganized sector. The act does not create a provision for paternity leave. The act puts the burden of crèche facilities and maternity leave on employers.

Different Schemes Implemented By The Central Government For Maternity Benefits:

  • Indira Gandhi Matritva Sahyog Yojana (IGMSY)
  • Rajiv Gandhi National Crèche Scheme For Children of Working Mothers 

Conclusion: 

The Maternity Benefit Act is a boon for working women as they don’t have job insecurity during their maternity period. Also, it provides a satisfactory duration of time for taking care of women as well as their child’s health. It also supports women and makes them economically strong. There are some loopholes that need to be filled like clarification is still awaiting for crèche facility, work from home, and accessibility of this act in unorganized sectors.

The article has been written by Kiran Israni, 3rd Year Law Student of Baba Saheb Ambedkar College of Law, Nagpur.

The article has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith.

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Double Jeopardy

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Introduction 

Every society has its rules and regulations to control crime and punishments for the violation of the law. Criminal Justice is the system of practices and institutions of government directions to control crime. Double jeopardy is also part of the criminal justice system. The double jeopardy concept came to the abolition of double conviction for the same offense. It is based on the legal maxim ‘Nemo debet bis vexari, si constat curice quod sit pro una it made causa’ means man cannot be punished twice if the court has convicted him for the same offense. This maxim is mentioned in Section 26 of the General Clause Act and Section 300(1) of CrPC. It also follows the “Audi alteram” that no person can be convicted for the same offense. The doctrine of double jeopardy is defined under Section 300 of CrPC. 

Under the Constitution of India

Double jeopardy is the fundamental right (Part III) under Article 20(2). Article 20(2) defines double jeopardy “no person shall be charged and punished again for the same offense.” The term prosecution has three essential components under this article. 

Three essential components of prosecution have: 

  • The person should be accused of an offence. The term an act or omission is punishable by law. 
  • There should be a proceeding and prosecution of the case before the court or judicial tribunal. The defence of double jeopardy is only for those cases that have been decided under the judicial tribunal.
  • When the tribunal accepts the administrative and departmental inquiry, these inquiries are not considered as proceedings of the court.

The Constitution of India is considered only autrefois convict and not autrefois acquit, which means the concept is for those a person is prosecuted and convicted by the court.

In the case, Maqbool Hussain v. the State of Bombay, the appellant came from abroad and brought some gold. He does not mention to the airport authority that he had brought gold. The customs authority impounded the gold under the Sea Customs Act. After some time, he was charged under the Foreign Exchange Regulations Act. The appellant contended that the second prosecution was a violation of his fundamental right, Article 20(2). The court held that the Sea Custom authorities are not a court or judicial tribunal. The prosecution under the Foreign Exchange Act is not a violation of Article 20(2). 

In this case, Venkataraman v. Union of India, the appellant, who was dismissed from her service after an inquiry by the Public Service Enquiry Act, 1960. Later, she was prosecuted under IPC and the Prevention of Corruption Act for corruption. The court held that the proceeding under the Enquiry Act did not amount to a prosecution. Hence, the second prosecution is not a violation of Article 20(2). 

Criminal Procedure Code

The concept of double jeopardy is defined under Section 300 of CrPC and its exceptions. 

  • Section 300(1) – It states that if any person is found guilty under the competent court and convicted for an offence, then a person cannot be acquitted for the same facts. The second trial against the person shall be for different facts or charges.  Illustration – if a person is convicted under Section 221(1) then in the second trial he cannot be convicted again for Section 221(2) of the same Act. 

This section does not include dismissal of a complaint or discharge of accusation. 

  • Section 300(2) – It states that if the person has committed many offences but was not tried in the first trial then he cannot be prosecuted for other charges in the second trial. It means that when a person is convicted in the first trial, he cannot be convicted under the same facts with another offence separately. Before the second trial of a convicted person then it is necessary to take the consent of the State government.
  • Section 300(3) – It permits the second trial of a convict in those cases where new facts came and those facts did not exist in the first trial. This section is applicable for a conviction not in acquittal offences. The case will be retried only in those cases where some facts relating to the case have not come before the court. 
  • Section 300(4) – This prescribes that after the new facts the person cannot be tried in the same court which does not have jurisdiction. The person shall be retried in a competent court which has jurisdiction. 
  • Section 300(5) – It states that if any person is discharged under Section 258 of CrPC (the court has the power to stop the proceeding of the case at any stage with judgment). The stoppage could be after recording the evidence of a witness, the decision of acquittal or release of the accused has the effect of discharge. A person shall not be tried again for the same offence without the consent of the court.
  • Section 300(6) – It states that Section 300 of CrPC shall not affect Section 26 of the General Clauses Act. Section 26 of the General Clauses Act prescribed that if the offence which is committed by the accused falls under two enactments then the accused shall be punished under one enactment. But the dismissal of the complaint and discharge of the accused is not an acquittal. Illustration – A tried for grievous hurt and was convicted. The injured person has died. Then he will be convicted for homicide.

Institute of Chartered Accountants of India v. Vimal Kumar Surana, in this case, the court held that if a person is convicted again for different laws, it cannot amount to double jeopardy. The defendant was charged under the Chartered Accountant Act. The court held that it did not mean he is convicted under the Chartered Accountant Act, so he cannot be convicted under the Indian Penal Code. The accused cannot take defense under Section 300 of Cr.PC because the accused is charged under two different laws.

Conclusion

The concept of double jeopardy protects the accused so that he should not be convicted twice. Double jeopardy is defined under the Constitution and Cr. PC. In the case, Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, the court held that clause 1 under Section 300 is wider than Article 20(2). Article 20(2) states only a person shall not be prosecuted twice for the same offense. Section 300(1) states a person shall not be tried and convicted for the same offense or same facts but a different offense. If a person is convicted twice for the same offense, it is a violation of the fundamental right. 

The concept intends to protect a person from multiple punishments for the same offense or to maintain the integrity of the justice system and to protect against the abuse of powers granted to criminal administration.

The article has been written by Prachi Yadav, a 2nd-year student from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

The article has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith.

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Lawful standards with respect to valid Acceptance in Contracts

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Introduction:

Section 2 (b) of the Indian Contract Act, 1872 characterizes acceptance in these words: When one individual to whom the suggestion is made means his assent thereto, the recommendation should be recognized. An idea when perceived changes into an affirmation. In the declarations of Sir William Anson, Acceptance is to offer what a lit match is to a train of hazardousness. It produces something which can’t be checked on or fixed. However, the powder might have been laid till it has become moist or the person who laid the train might have pulled out everything except a lit match stick.

Definition:

Section 2(b) of the Indian Contract Act, 1872, defines an acceptance as “when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted becomes a promise”.

Communication of Acceptance

Method of Acceptance: 

For the present circumstance of communication of acceptance, there are two factors to consider, the technique for acceptance and a short time later the situation of it. Permit us first to examine the technique for acceptance. Acceptance ought to be conceivable two, to be explicit 

Communication of Acceptance by an Act: This would consolidate communication through words, whether or not oral or created. So, this will join communication through calls, letters, messages, sends, etc 

Communication of Acceptance by Conduct: The offeree can moreover pass on his acceptance of the proposal through some activity of his, or by his direct. So say when you board a vehicle, you are enduring to pay the vehicle cost through your direct. 

Timing of Acceptance: 

The communication of acceptance has two sections. Permit us to explore 

As against the Offeror: 

For the proposer, the communication of the acceptance is done when he places such acceptance over the range of transmission. After this it is out of his hand to renounce such acceptance, so his communication will be done then. 

As against the Acceptor: 

The communication in the event of the acceptor is done when the proposer acquires information on such acceptance. 

Revocation of Acceptance: 

Section 5 moreover communicates that acceptance can be disavowed until the communication of the acceptance is done against the acceptor. No repudiation of acceptance can happen after such date.

Again, from the above model, the communication of the acceptance is finished against A (acceptor) on the fourteenth of July. So, till that date, A can renounce his/her acceptance, however not after such date. So actually, somewhere in the range of tenth and fourteenth July, A can choose to disavow the acceptance.

Lawful standards with respect to valid acceptance and related cases

  1. Acceptance must be given to whom the offer was made.

An offer can be acknowledged simply by the individual or people to whom it is made and with whom it’s anything but an expectation to contract; it can’t be acknowledged by someone else without the assent of the offeror. 

Law and order are evident that “assuming you propose to make an agreement with A, B can’t substitute himself for A without your assent.” An offer made to a specific individual can be legitimately acknowledged by him alone.

Related Case:  Boulton vs. Jones

  1. Acceptance should be absolute and unqualified: 

To be authentically amazing it’s everything except an absolute and unqualified acceptance of a large number of terms of the offer. Surely, even the littlest deviation from the states of the offer makes the acceptance invalid. Basically, a wandered acceptance is seen as a counteroffer in law.

  1. Acceptance should be communicated in some standard and sensible way, except if the proposal endorses the way wherein it is to be acknowledged:

In case the offeror suggests no strategy for acceptance, the acceptance ought to be passed on by some norm and reasonable mode. The standard techniques for correspondence are by catching individuals’ discussions, by post, and by direct.

Exactly when acceptance is given by words communicated or formed or by post or wire, it’s everything except an express acceptance. Right when acceptance is given by the lead, it’s everything except a proposed or gathered acceptance. 

Recommended acceptance may be given either by doing some fundamental show, for example, following the lost items for the announced honor or by enduring some benefit or organization, for example, stepping in a public vehicle by a voyager. 

If the offeror embraces a strategy for acceptance, the acceptance given properly will probably be a significant acceptance, whether or not the suggested mode is entertaining. Thus, if an offeror underwrites lighting up a match as a strategy for acceptance and the offer as necessities be lights up the match, the acceptance is reasonable and complete. 

Regardless, what happens if the offeree gets sidetracked from the suggested mode? The reaction to this inquiry is given in Section 7(2) which communicates that in examples of diverged acceptances “the proposer may, inside a reasonable time after the acceptance is passed on to him, request that his recommendation will be recognized in the suggested way, and not something different; regardless, if he fails to do thusly.

Related case: Brogden v Metropolitan Railway

  1. Acceptance must be communicated:

For a proposition to transform into an understanding, the acknowledgment of such a proposition ought to be conveyed to the promisor. The correspondence ought to occur in the supported design, or any such construction in the normal course of business if no specific design has been suggested. 

Further, when the offeree recognizes the proposition, he probably understood that an offer was made. He can’t convey acknowledgment without data on the offer. 

So, when a proposal to supply B with items and B is satisfying to all of the terms. He creates a letter to recognize the offer yet fails to post the letter. So, since the acknowledgment isn’t imparted, it’s everything except substantial. 

Related case: Powell v. Lee 

  1. Acceptance must be given inside a reasonable time and before the offer lapses and additionally is revoked:

To be really amazing acknowledgment ought to be given inside the foreordained time limit, expecting to be any, and if no time is determined, acknowledgment ought to be given inside a sensible time considering the way that an offer can’t be kept open uncertainty (Shree Jay a Mahal Cooperative Housing Society versus Zenith Chemical Works Pvt. Ltd.). 

Again, the acknowledgment ought to be given before the offer is disavowed or passes by reason of the offeree’s data on the death or franticness of the offeror. 

Related case: Ramsgate Victoria Hotel Co Vs Montefiore 

  1. Acceptance should succeed the offer: 

Acknowledgment ought to be offered to result in getting the offer. It should not go before the offer. In an organization, shares were circulated to a not applied for singular them. Henceforth, he applied for shares being oblivious to the past conveyance. It was held that the assignment of offers past to the application was invalid. 

Examples: a piece of offers past to application invalid

  1. Rejected offers can be accepted just, whenever recharged:

Offer once dismissed can’t be acknowledged except if a new offer is made. 

Related case: Hyde v. Wrench 

Conclusion: 

Assessment of offer and acceptance is a standard contract law method used to assess whether a two-party game-plan exists. An offer means that their capacity to surrender to explicit terms beginning with one individual then onto the following. Accepting there is an express or proposed course of action, a contract will be outlined. A contract is said to seem when the acceptance of an offer has been encouraged to the offeror by the offeree. 

when the offeree to whom the proposal is made, really recognizes the offer it will amount to acceptance. After a special offer is recognized the offer transforms into a guarantee. 

The correspondence of the offer will be done concerning the data on the person to whom the offer is made and the correspondence of the acceptance will be done when the acceptance is put in a course of transmission to the offeror. Thus, offer and acceptance are the central parts of a contract and in any case, it should be done dependent on one’s total opportunity and complete goal on shutting a legally definitive game plan. 

A legitimate acceptance should be in similarity with the accompanying standards. Without having great article end models before your eyes, it is hard to wind up the creative cycle on an incredible note. Acceptance should be clear and unambiguous. Finish the Contract on the Ground of the Offer, Fixing the Term of Acceptance. of the relative multitude of terms of the offer, and with no condition.

The article has been written by Vrunda Parekh, a first-year law student at United World School of Law, Karnavati University.

The article has been edited by Shubham Yadav, a fourth-year law student at Banasthali Vidyapith.

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Marital Rape In India: A Legal Analysis

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Introduction

Long years back, during the ancient era of 1900 BCE in Babylon, if a man forced his sexual pleasure on someone’s wife or daughter is sentenced to death on the grounds of vandalizing someone else’s property. And in other parts of the ancient world, the laws defined rape as a property crime against the husband or father than the woman herself. Later during the 17th century, the Qing dynasty or British Empire had started to state rape as a crime against the woman herself but it was on the grounds of violation of her sexual purity. Due to the growth of middle-class mentality and Victorian morality in the age of 18th and 19th centuries, the accentuation on woman’s virginity had started increasing and rape was thus termed as a threat faced by women outside her household and it was made as a responsibility for the father and the brother to protect her from that. And it was from this basis the Indian penal code of 1860 had got its origin where article 375 considered rape as a crime done against women. From considering women as a commodity to an individual, our law had moved a lot forward but still in all these aspects we consider rape as a threat from the outside. And it is considered as not possible in a marriage because at the end of the day the wife is a husband’s property and he has a monopoly over her to do whatever he wants. Even though rape is considered as a threat to the individuality of a woman, our law fails to view rape in a marriage as a threat to the individual but as a right of an owner over his slave. As the feminist movements all over the world are asking women to report rape cases even if the perpetrator is strong or influential.  But in India, it still continues to uphold a man’s right to rape a woman when they are married.

Definition Of Marital Rape

The word marital rape is defined as an act of forcing the spouse into sex without her consent. The lack of proper consent is an important aspect in the case of marital rape and no physical violence should be exerted over the spouse. Marital rape is considered a form of sexual abuse and domestic violence.

Social And Legal Status Of Marital Rape In India

Even though rape is considered as an attack over a human being’s individuality in our statute but the mentality towards rape in India considers it as an injury of the victim’s family honor. Domestic violence is a deeply established issue in India. The national crime records bureau’s “crime in India 2019” report discovered that in India 70% of women are victims of domestic violence. Domestic violence can occur in different forms. One such embodiment of domestic abuse is marital rape. In this 21st century, over 100 countries impeached marital rape but in India, it’s still legal for a husband to rape his wife. Even though lots of amendments have occurred in criminal law as a result of feministic movements like:

  1. The criminal law (second amendment), 1983
  2. Amendment to Indian Evidence act, 2002
  3. Protection of children from sexual offences(POCSO), 2012
  4. Criminal law (amendment) law, 2013

The non- penalization of marital rape undermines the rights and dignity of women as human beings. Rape which is referred to as a crime under article 375 in the Indian penal code, 1860 includes all forms of sexual abuse without the consent of the woman. The non- criminalization of marital rape in India originated from exemption 2 to section 375 where it exempts unwilling sexual relationship between a husband and a wife over fifteen years of age. This proves that in India the wife is presumed to deliver “implied consent” to have sex with her husband after their marriage. Our society still considers women as property over which a man first as her father then as her husband has a monopoly on and fails to accept a woman as an individual who is entitled to have agency or autonomy over her body and individuality. It’s not only the social mentalities that are demeaning but also the legal approach towards it is quite disheartening. 

“However brutal the husband is when two people are living as husband and wife can sexual intercourse between them rape?”

  • These are lines stated by our former honourable chief justice sharad arvind bobde while dealing with a case of marital rape. It is not a unique or a single case but there are multiple petitions filed regarding marital rape. In Arnesh Kumar Vs. state of Bihar [1], the Supreme Court stated that penalising marital rape can lead to the collapse of social and family systems. 

The all-India democratic women’s association had filed a PIL in Delhi court in January 2015 stating penalization of marital rape but due to the covid-19 pandemic, the PIL is getting delayed. A bill named “women’s sexual, reproductive and menstrual rights, 2018” was introduced by MP Shashi Tharoor in parliament but later failed to garner maximum support from the house. In India, we mostly consider rape as a threat to honor or chastity of the woman or her family and we fail to regard it as harmful to a person’s individuality and dignity. That is the reason behind the belief that getting the victim married off to the perpetrator can save a woman from losing her honor. The Supreme Court had asked the rapist to marry the victim while they were dealing with the bail request filed by Mohit subash Chavan, a technician with the Maharashtra state electric production company. He raped a 16-year-old minor who was his distant relative. This seems to be like romanticizing the relationship between a victim and a culprit. In any relationship, the key aspect is respect for each other. No one has authority over anybody. All these mentalities arise from our social conditioning where we are constantly conditioned as a woman is the responsibility of a man. All will get altered once we start respecting an individual’s personhood, choices, desires, and consent.

Legal And Constitutional Rights And Provisions Regarding Marital Rape

Most of the time the victims withdrew themselves from filing a complaint against the culprit because of the fear of breaking the marriage, societal pressure, children, etc. even though marital rape is not criminalized but it actually violates several existing rights of a citizen. While raping an unmarried woman is termed a crime, raping a married woman is considered to be legal. This shows an inequality among the individuals on the basis of their marital status thus violating the norms of article 14(right to equality). It also questions the purpose of article 375 where it promises protection and justice for women from sexual exploitation but it fails to protect a married woman from the consequences of marital rape where it is difficult for her to come out of such a relationship when the wife is both legally and financially bonded to her husband. The norms regarding marital rape also harm the real ideology of Article 21. In article 21, the constitution guarantees the right to health, dignity, privacy, safe living conditions, etc.  In the case of the state of Karnataka vs. krishnappa [2], the Supreme Court stated that sexual assault apart from the dehumanizing acts is an unlawful invasion into the right to privacy of the woman. The court also held that sexual intercourse without consent accounts for physical and sexual violence. In the case of suchita Srivastava vs. Chandigarh administration [3] states that every individual has the right to make decisions or choices regarding sexual activity and equates it with personal liberty, privacy, dignity, and integrity.  Under justice K.S. puttaswamy vs. union of India [4], the supreme court of India mentions the right to privacy where it also includes the ability to make intimate decisions. Under all these cases the Supreme Court had recognized the right to abstain from sexual activity for all women irrespective of their marital status. Now dealing with the remedies for marital rape, the possible remedy which can be provided is the protection of women from the domestic violence act, 2005. This act states forced sexual intercourse as an act punishable under Indian law. Section 498A deals with punishment of three years and a fine for cruelty committed against a woman by her husband or his relatives. However, a magistrate can’t punish a husband by stating he raped his wife. Still, the idea of marital rape is stuck in the patriarchal ideology. We need to walk a long way ahead to realize that consent is important in every relationship.

The Future Aspects Of Marital Rape

 For India as a developing country, marital rape still being legal is a great threat to its social development. From women considered as commodities with mere rights to individuals with equal rights and responsibilities, we had moved a lot forward. But considering a married woman as a husband’s property is more like going back to our old belief system. There are certain steps taken at both the global and national levels to protect and provide a safer place for every woman from their abusive spouses. The United Nations declaration on the elimination of violence against women had released their comment on harassment against women as:

“Any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life”.

UN committee on the elimination of discrimination against women (CEDAW) had advocated the Indian government to penalize marital rape. The JS Verma committee was set up as a result of the massive nationwide protests over the Delhi gang-rape case held on December 1, 2012.  The criminalization of a crime like marital rape can not only protect women from an abusive relationship but can also make society understand that marital rape itself is a crime and no woman is anyone’s commodity but an individual who has the right to live her life with dignity and choices.

Conclusion

Marital rape is a menace towards a woman’s dignity and criminalization of it will be a fight against the notion of marital sanctity that is based on the subjugation of women. It challenges the age-old rape culture that denies a woman her basic rights, dignity, respect, and autonomy over her own body.

The article has been written by Nourien Nizar.

The article has been edited by Shubham Yadav, a law student from Banasthali Vidyapith.

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A Comparative study of Emergency provision from Germany to India

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Introduction 

The Indian constitution was drafted in the mid-twentieth century which gave an advantage to constitutional makers, in so far as they could take cognizance of the various constitutional processes operating in different countries of the world and thus draw upon a rich fund of human experience, wisdom, heritage, and traditions. The emergency provisions are taken from the Weimar Constitution of Germany. After the second world war, the allied forces to safeguard their troops still stationed in Germany asked for the formation of emergency provisions.

Similarities between German and Indian provisions

To understand the reason for taking emergency provisions from Germany we first need to establish what are the provisions in particular taken from Germany. Firstly, like India Germany also has 2 houses namely the Bundestag and Bundesrat, secondly like state emergency in India there is an internal emergency in Germany and the national emergency is common in both countries. The situation of both the countries are not similar before the proclamation of emergency like for example India follows common law and Germany is a civil law country, however, once the emergency is proclaimed both countries place similar restrictions on their citizens and this is an important factor by which one can say emergency provisions are taken from Germany, It is not the before effect that matches between both the countries but it is what happens after the proclamation of emergency that matches. 

One can argue that the aftereffects of emergency are similar in all countries worldwide, but the statement holds negligible truth. Like in countries where dictatorship exists fundamental rights are also suspended like in the case of North Korea, Turkey, Russia. Where the top leader holds absolute power to change the terms during an emergency. In recent times there is an example of Myanmar where the military threw out the democratically elected government led by Au Su Khi and imposed a martial rule suspending all the rights of the citizens. Even the basic right to life is hindered and the military explicitly kills the protesting citizens. Other provisions from Germany include suspension of fundamental rights during an emergency, apart from this all the other provisions too are from the Weimar constitution.

Discussions by the drafting committee 

While discussing the draft Art. 275 (Art. 352) that dealt with the promulgation of emergency H.V. Kamath warned the assembly about the German experience where Hitler used emergency provisions to establish a dictatorship, however, Hitler invoked many of the provisions of the Weimar constitution such as Art. 48 of the Weimar constitution that provided for the president to notify all the actions to the parliament, this provision is missing in the Indian constitution as observed by H.V. Kamath. 

An interesting fact emerged in this course is that the idea of a financial emergency was not taken from Germany, but it is from the American constitution which was implemented during the great depression as observed by Dr. B.R. Ambedkar. 

During the debate between our constitutional makers for the emergency provisions, a total of 12 countries were taken into consideration where the UK was most referred to followed by the USA and Germany. If we say the emergency provisions are taken from Germany does not mean the whole of emergency provisions are from the German texts but it means that the national emergency and the state emergency provisions are only taken from the German texts.

Reason for the adoption of emergency provisions from Germany

Germany was the most experienced country among all in terms of dealing with armed rebellion, civil war, and internal security and because Hitler exploited the country’s emergency provisions a system of checks and balances was established by the allied countries in Germany to prevent any such chances of dictatorship. 

The revised provisions and the amendments suggested earlier implemented in the year 1968 in the Federal Republic of Germany constitution made it the most favorable constitution to take emergency provisions from. Also, these emergency provisions were accepted and appreciated by all the allied countries around the world so it was best suited for India to take a reference from this nation. Under any form of government, a state of national emergency is considered as “hour of the executive” where the executives can misuse the authority, this was a matter of debate in the Federal Republic of Germany since the mid-1950s which Germany with numerous debates in their little parliament had resolved. 

This also gives our constitutional thinkers a reason to refer to the German text as this stand was still unclear in most of the countries like the US. As emergency is such a sensitive matter only nations who had ample experience in dealing with it should be taken into consideration and Germany was one such country. Also, after the partition of India and Pakistan based on religion, chances of civil war could arise in India which the German people had already experienced, so it made sense to our constitution-makers to take ideas from Germany to tackle the situation if it arises. 

The article has been written by Aakarsh Chandranahu, a student at Alliance School of Law.

The article has been edited by Shubham Yadav, a 4th year law student at Banasthali Vidyapith, Jaipur.

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Should Capital Punishment Be Abolished In India

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Introduction

The prime rationale behind providing punishments is to make the wrongdoer pay the penalty for the wrong he did and to provide a message to society and deter them from committing the same. Capital punishment is an integral part of the criminal justice system also follows the same rationale.   But as human rights movements are increasing and the ideology of considering a person as a fellow human being rather than his gender, race, religion, caste, etc. the rationality of capital punishment is being questioned. 

Definition

The word “death penalty” interchangeably used as capital punishment means the state-sanctioned execution of a malefactor sentenced to death after conviction by a court of law for a criminal offense. The sentence that orders someone to be punished in such a manner is known as a death sentence and an act of carrying out such a sentence is called an execution.

Historical Background 

“If a man destroys the eye of another man, they shall destroy his eye”

  • These lines are the core doctrine of  the code of king Hammurabi

Of Babylon which originated at the age of 18th century that led to the evolution of capital punishment. The statute prescribed capital punishment for over twenty different offenses depending on the defendant’s societal status. The crimes which are now treated lightly like theft; perjury, etc. were subjected to capital punishment in the Hammurabi Code. Later, the notion of capital punishment was adopted by different ancient statutes like the draconian code of Athens where the death penalty was considered to be compulsory for all types of crime, the roman law of twelve tables where they imposed capital punishments through various methods like burning alive, boiling in oil, drowning, hanging, being thrown to a wild animal, etc. Soon after its introduction, there was a hike in the number of capital punishments held in the 17th and 18th centuries for crimes ranging from theft, cutting down of trees, marrying a Jew, treason, etc. As the punishments started getting more stringent and heinous the jurists had started considering the death sentence only for serious crimes. This led to early reforms in the statute of the death penalty in Britain. It was not only in the statute but also several religious texts have justified the idea of capital punishment:

  1. “Whosoever sheddeth man’s blood, by man shall his blood be shed” (Genesis 9:6) are the excerpts from bible that justifies capital punishment.
  2. In Islam, capital punishment is entitled for certain crimes like apostasy, adultery, murder, those who conducts war against Islam and spies.

Capital punishment for murder was penalized in India after the independence in 1947 by the imposition of a penal code. But during the British regime, it was during the period of 1931 the fingers started pointing towards the constitutionality of capital punishment when Mr. Gaya Prasad Singh, a member of the British parliament introduced a bill to scrap the death penalty for all the offenses prescribed under the Indian Penal code. But the bill was denied during that time at the parliament by stating the impossibility to enact the bill. And after Independence, the government had retained several criminal statutes including the penal code of, 1860 thus penalizing the death penalty. Later on, during the period of 1950 to 1980 there over 3000-4000 capital punishments occurred in India. But it was the 1980’s landmark case Bachan Singh vs. State of Punjab [1] that became a turning point in the evolution of laws regarding capital punishment.

Bachan Singh Vs. State of Punjab:

In this case, the bench was headed by justice Y.C chandrachud, justice A.gupta, justice N.untawalia, justice P.N.bhagwati, and Justice R. Sarkaria. The issue raised in the case is regarding the constitutionality of section 302 of IPC, 1860 under which capital punishment is provided, and about the necessity to follow the facts identified by the lower courts for awarding capital punishment under section 354(3) of CRPC. The judgment of the case states that: 

The court has dismissed the query against the constitutional validity of section 302 of IPC and 354(3) of  CRPC and has also stated that the death penalty can only be imposed in rarest of rare cases, which means that conviction for life imprisonment is the rule and death penalty is an exemption. In India, we all have the right to life under article 21 of the Indian constitution so, that capital punishment is only imposed on serious crimes like aggravated murder, other offenses resulting in death, terrorism-related cases resulting and not resulting in death, kidnapping not resulting in death, drug trafficking not resulting in death, treason, espionage and military offenses not resulting in death. Minors, pregnant women, mentally challenged people are excluded from the death penalty. Hanging and shooting are the two methods that are adopted in India for the execution of the death penalty.

  The first capital punishment was executed in September 1947 at Jabalpur central jail by hanging Rasha alias Raghu raj Singh and recently for Nirbhaya rape case by hanging four out of six culprits: Mukesh Singh, viny Sharma, Pawan Gupta, and Akshay Kumar Singh at Tihar jail. This was the first time where four convicts were hanged together on the same platform. Prior to this, the death sentence conducted in India was the 30th July 2015 hanging of terrorist Yakub Memon, who was convicted in the 1993 Mumbai blasts. Over 720 people were executed in India after Independence.

Current Status Of Capital Punishment Both Globally And In India

Global level:

There are over 58 countries that still follow the death penalty as a punishment. The convention against torture and cruel, inhuman, or degrading treatment or punishment stated that the execution or imposition of capital punishment will not amount to torture or inhuman. The death penalty was permissible under the international criminal law in Tokyo and Nuremberg tribunals which were formed during Second World War and from there onwards international courts exclude capital punishment as a permissible form of punishment.  The death penalty is permissible as a punishment under the international convention on civil and political rights (ICCPR) but at the same time, article 6 under the convention guarantees the right to life and also imposes certain safeguards that are supposed to be followed by signatories before considering the death penalty. The ICCR also consists of a second optional protocol for the abolition of the death penalty. It came to light in 1991 and it has 81 state parties and 3 signatories. Under article 37(a) of the convention on rights of children strictly prohibits the imposition of the death penalty on minors (under the age of 18).

At the national level:

From jag Mohan Singh Vs. the state of Uttar Pradesh [2] then in Rajendra Prasad Vs. the state of Uttar Pradesh [3] till the landmark case of Bachan Singh Vs. In the state of Punjab, the apex court stated that in India death penalty can only be imposed in the rarest of rare cases. In India, we highly value the life of a human being under article 21 of the Indian constitution and it was stated that a person will only be executed for a death sentence if it has a fair and valid reason. The case should require some uncommon nature which makes the life imprisonment inadequate and enables the court to take away a person’s right to live. In India, our constitution also provides the right to seek pardon and get free from the death penalty. The mercy petition can be accepted by the president and governor under article 72 and article 161 in the Indian constitution respectively.  9 presidents have accepted mercy petitions with Rajendra Prasad being the president who accepted more petitions.

The Arguments For The Death Penalty

The major   arguments that favor the idea of the death penalty are:

  1. The major argument arises from the concept of Hammurabi code, where it considers the man who deprived the right of another man no longer deserves the luxury of human rights.
  2. Certain crimes like rapes deserve heinous punishments like death penalty.
  3. Awarding death penalty to the wrongdoers will prevent the society from committing the crimes.
  4. Death penalty is given as a counter act of revenge by the victim’s family, which is a right that they deserve.
  5. It is a strong deterrent for criminals.

The Arguments Against The Death Penalty

  1. The common argument that stands against death penalty is that it takes an individual’s right to life.
  2. Many countries execute mentally challenged people who might not even know that they have committed a crime.
  3. In countries like Sudan and Iran death penalty is often used as a political device to execute their political propaganda.
  4. The people who are disadvantaged to have proper socio-economic background are denied proper legal aid and it tends to emerge as a great disadvantage and will not enable the justice system to follow its ideology of justice to all.
  5. There are high chances of a person proving to be innocent after the execution. In America, more than 184 prisoners sent to death row were later released from the row on grounds of innocence in 1973. The death sentence itself cannot ban fellow people from committing the crime

Alternatives For The Death Penalty

By providing value to the life of an individual and also providing the wrongdoer to understand his mistake and repent for the same, other alternative punishments are also provided.

  1. Life imprisonment: it is an effective replacement for death penalty. In this type of punishment a culprit is put behind the bars without the privilege of parole which means that a person cannot leave the prison until he dies. But there is also life imprisonment which provides the luxury of parole. Life imprisonment without parole does have a similar effect that of a death sentence where a person is denied from leading a free and independent life.
  2. Long term imprisonment: in this type of punishment, a culprit is sentenced for a fixed time period of 40 years. Its followed in several countries like:  Brazil, Colombia, Croatia, El Salvador, Nicaragua, Norway, Portugal and Venezuela 
  3. Release with restrictions: under this punishment the culprit is released with certain restrictions for life long or a particular period of time. any infringement of these restrictions will enable the system to send him back to prison
  4. Preventive detention: this is a type of detention where a person is detained for preventing him from committing a crime.it is mainly provided in case of serious violence or sexual assault where his release can be a threat to society.
  5. Indeterminate term of imprisonment: in this type of imprisonment, a person is sent to jail for a minimum duration but can be prolonged thereafter.

Conclusion

During the time where nirbhaya rape case was a burning topic, BBC had filmed a documentary named India’s daughter where they interviewed the culprits and their family members. In that documentary, Mukesh Singh, one among the six culprits, was asked the question of whether he repents for the crime he did and the answer was a blatant “NO”. He said that no good girl will go out after 9 pm and if rape occurs it’s the girl’s fault than the boy. The main motive behind punishment is to make the wrongdoer pay the penalty and at the same time, it should deter society from committing the same. Not only in the above-mentioned case but in many other crimes the culprit themselves fails to understand their own mistakes. Other than killing someone for taking another’s life capital punishment sadly gets entitled to an act of mere revenge. It fails to implement its major objective of deterring society from committing the crime. There are lots of social, psychological, and legal aspects that are connected with the commission of a crime. Unless we aren’t able to identify and treat and plunder the reasons for the commission of crimes at the `grassroots level, capital punishment won’t be a solution for it.

The article has been written by  Nourien Nizar, a first-year B.COM LLB (HONS) student of Government Law College, Ernakulam, Kerala

The article has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith.

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An Analytical Study of Juvenile Justice System in India

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Introduction: 

The Latin law best suited to the justice system at Juvenile Justice in India is ‘No Novi Spectrum’ which means there is nothing new in this world. There has been a global outcry since ancient times when Juvenile people should be treated fairly because there is a system of thinking – Young people often have a tendency to respond with great and long-lasting frustration associated with aggressive behaviors.

Over the past few years, it has also been observed that crimes committed by children under 15-16 years have increased dramatically. Typical tendencies or psychology after criminal commitment or the causes of crime are the early stages of life, strong manhood, upbringing, economic decline, lack of education, etc. It is a matter of shame that children under the age of 6-10 these days are being used as objects for illegal or illegal activities. Since children’s minds are chaste and deceptive, they can be seduced by small amounts of money.

Prior to the Juvenile Justice Act of 2015, 2000, and 1986, there was the Children’s Act of 1960 which was intended to give effect to the international response to the Juvenile Justice case in which they provided the same policy that protected the interests and rights of the Child. each.

But with the recent developments in the international community and the emergence of criminal involvement, Indian law enforcement agencies are forced to come up with new, progressive, and stronger laws for the system of children involved in the country. As a result, the Juvenile Justice Act of 1986 and then the Juvenile Justice Act of 2000, and more recently the 2015 Juvenile Justice Act was approved by Parliament.

Former Chief Justice of India, Justice V.K. Krishna Iyer said we need a disciplinary code because a child is the father of a man and if we neglect the development of children, then we will be guilty of many mistakes and mistakes related to leaving our children.

In the last few decades, the crime rate among children under the age of 16 has increased. The reason for the increase in crime is likely to be due to the child’s upbringing, economic situation, lack of education, and parental care. These are just some of the reasons. Sadly, children (especially those under the age of 5 to 7) nowadays are now being used as a tool to commit crimes as at this time their minds are clear and can be easily manipulated.

The horrific incident of the “Nirbhaya Delhi Gang Rape Case”  on December 16, 2012, shocked the entire nation and many negotiations were started between legal and civil society organizations. The main reason and issue for the debate was the involvement of the suspects, who had only six months left to reach the age of 18. The defendant’s involvement in the heinous crime of rape forced Indian law to introduce a new law which is why the Indian Parliament introduced a new law known as Juvenile Justice (Care and Protection), 2015.

The introduction of the Act replaced existing children’s laws and introduced some surprising changes. One of the most amazing changes is that a young person under the age of 16 to 18 should try as an adult.

Definition of Child and Youth under the Juvenile Justice Act, 2015 and various other laws

Generally, “child” means a person who has not yet reached the age of 18 and has not yet developed a sense of right and wrong. Nowadays, the penal code of many countries has adopted the principle of ‘doli incapax’  which means to know that an act committed there is a crime. The penal code also states that only a child between the ages of seven and twelve can be sentenced, provided that the act they committed is a serious offense and they are knowledgeable and have sufficient knowledge to understand the consequences of their action.

In terms of section 12 of Section 2 of the Juvenile (Care and Protection) Act, 2015 “child” means a person under the age of eighteen years. The law divides the word “child” into two categories: –

“A child of lawlessness” and

“A child in need of care and protection” 

A child who has committed a crime and is under the age of 18 on the day of the conviction is called a “criminal child”. The second subsection states “child in need of care and protection” means an advertisement for a child defined under Section 14 of the Act.

Children’s Act, 1960: Section 2 (e) of the Act says “child” means a boy under the age of sixteen years or a girl under the age of eighteen years. 

United Nations Convention: The UN Convention on the Rights of the Child, 1989 defines a “child” as a person under the age of eighteen unless a legal declaration applies to a child, the majority of which is acquired before that. 

Differences between juvenile  and Child :

A person under the age of full legal obligation and responsibility is a minor or a person under the legal age of eighteen years is minor. A child accused of a crime is not tried when he or she is older and sent to a child care center and a child is a person between the ages of sixteen and eighteen. A young person accused of a crime is a young offender and is being tried as an adult in the courts.

In a general sense, both words have the same meaning but still, the difference is at the level of impact in the eyes of the law. Less means young people and youth and a child shows an immature or sinful person.

History of Juvenile Justice System in India: 

In modern times, a specialized treatment program for juvenile offenders has begun worldwide, including many developed countries such as the U.K., U.S.A. The movement dates back to about the 18th century. Prior to this, child offenders were treated in much the same way as other offenders. And for the same reason, the General Assembly of the United Nations adopted the Convention on the Rights of the Child on November 20, 1989. This conference seeks to protect the interests of child molesters. The agreement states that in order to protect the social cohesion of the child, there will be no justice and no court cases. This Agreement guides Indian Law to repeal the Juvenile Justice Act, 1986 and to enact new legislation. Thus, Indian law came up with a new act called “The Juvenile Justice (Care and Protection of Children) Act, 2000.

Juvenile Justice, 1986, which repealed the previous Children’s Act, 1960, intended to provide guidelines contained in the Juvenile Justice Jurisdiction adopted by the UN in November 1985.  The above Act contains 63 Sections, 7 chapters, and extends to it. all over India expected from the Governments of Jammu and Kashmir. The main purpose of the Act was to provide for the care and protection, treatment, development, and rehabilitation of juvenile delinquency. The main objectives of the Act are:

This act has set the same framework for child justice in the country in a way that protects the rights and interests of youth.

It talks about equipment and infra – the structure of care, preventive treatment, development, and rehabilitation of young abusers.

It sets out the basic provisions for the proper administration and justice of criminal justice in the event of serious crimes committed by child offenders.

Juvenile Justice Act, 2000 :

 The Act was enacted in 2000 with the intention of protecting children. These proposals were amended twice – first in 2006 and later in 2011. An amendment was made to address the gaps and gaps in the implementation of this plan.

  In addition, the increase in child crime over the years and the horrific incidents of the “Delhi Gang Rape Case” have forced lawmakers to come up with a law. What is worse about this Act is that it contains incorrect provisions of the law and an ineffective youth program and has been a major factor in preventing child crime in India. This practice was soon replaced by the Child Justice (Care and Protection) Act, 2015.

Current Juvenile Justice Program in India:

Like other countries, India has made legal arrangements that deal mainly with the rights and protection of child offenders who want to address the problem of child abuse. The Juvenile Justice System in India is made on the basis of three main ideas: –

juvenile offenders should not be prosecuted, but should be dealt with in the best possible way,

they should not be punished by the courts but should have the opportunity to reform

Illegal child prosecution should be based on non-punitive treatment in communities based on social control organizations e.g. View Homes  And Special Homes. 

Juvenile Justice Act, 2015:

The Youth Justice Act of 2015 replaced the Juvenile Justice Act of 2000 because there was a need for a strong and effective justice system that focused on preventative and transformational challenges. The approach to Juveniles should be different from that of adults, there was a dispute in Parliament that Juveniles should be given more space to reform or repair or improve and that can only happen if there is a special justice system. Thus, the new initiative namely the Juvenile Justice (Child Care and Protection) Act, 2015 focused on a friendly judicial and judicial process.

Juvenile Justice and the Constitution of India:

The Constitution of India is regarded as the constitution of India. The Constitution provides for the rights and duties of citizens. It also provides for the provision of state-of-the-art equipment. The Constitution in the third section provides for the basic rights of its citizens in the same way that in its IV section provides for the Directive Principles of State Policies (DPSP) which serve as general guidelines in formulating government policies. The Constitution provides for certain rights and provisions especially in the welfare of children. As: –

The right to basic and compulsory primary education for all children under 6 to 14 years of age. (Section 21A)

The right to protection from any dangerous activity under the age of fourteen. (Article 24)

The right to protection from harm of any kind by an adult. (Section 39 (e)).

The right to protection from human trafficking and to forced labor. (Section 39)

The right to nutrition and a decent standard of living. (Article 47)

Section 15 (3) of the Constitution of India provides for the special powers of the State to enact any special laws for the upliftment and improvement of children and women.

 Conclusion:

Growing numbers of new crimes in India are related to the issue and need to be addressed. Although the government has put in place various laws and regulations to prevent child crime, the current laws do not create barriers for children and therefore the consequences are not productive and the legal purpose is not achievable.

The article has been written by Soumya Singh, a student at Amity Law School, Amity University Jharkhand, Ranchi. 

The article has been edited by Shubham Yadav, a student of Banasthali Vidyapith, Jaipur.

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