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Introduction

Judicial review is the power of the court to review or scrutinize the actions of the legislative and the executive and the judicial actions. Judiciary has the power to interpret any law and order made by the legislature and executive and if it is found unconstitutional, then the judiciary can declare any law and order void. The power of the judiciary is to review the constitutional validity of law and an order passed by a legislature and executive known as “judicial review”. High courts and the Supreme Court both have the power of judicial review. Judicial review is part of the basic structure of our constitution. Judicial review is viewed as the power of the court to set up checks and balances between the legislature and executive.

Under the Indian Constitution, parliament is not supreme. We are following the rule of law, which means the constitution is the supreme law. This power is given to the court to examine the actions of the legislature, executive, and administrative arms of government and to ensure the constitutional validity of the law.

Judicial review has two functions;

Legitimate government action.
The protection of the constitution against the intrusion of the government.

History of judicial review

The concept of judicial review was first introduced in the United States Supreme Court. American Supreme Court has the power to review the law passed by Congress and executive orders.

In the case, Marbury v. MadisonPresident Adam belonged to the Federalist Party, which came to an end and President Jefferson came to power. On his last day, Adam appointed the judges of the Federalist Party. Jefferson was against this, so Madison, secretary of state, had not sent the appointment letter to judges. Marbury, one of the judges, filed the writ of mandamus in the Supreme Court. Court refused to entertain the plea and opposed the order of the legislature. Then the Congress and the US Supreme Court developed the concept of judicial review.

In India, judicial review was discussed for the first time in Emperor v. BurahIn this case, the Calcutta high court, as well as the Privy Council, adopted the concept of judicial review in the Indian courts.

Constitutional provisions for judicial review

The power of judicial review is given in the Constitution. The Constitutional provisions guarantee a judicial review. The Articles are:

Article 13(1) – All laws are in force before the commencement of the constitution is void if they abridge the fundamental rights.
Article 13(2) – The state shall not make laws which abridge the rights conferred by this part, and if any law made which contravenes this clause shall be void.
Article 13(3) –The law includes any ordinance, order, bye-law, regulation, and custom in India; force of law and the law in force includes laws passed by the legislature or competent authority in India which is pre-constitution and not repealed, any such law or any party shall not be operated.
Article 13(4)–This article shall not apply to any amendment of the Constitution made under Article 368.
Article 32 and 226 –A person can approach the High Court and Supreme Court to violate fundamental rights.
Article 251 and 254 –Conflict between the union and state laws, the state law shall be void.
Article 245–The legitimacy of legislation can be challenged in the court if the provision of law infringes fundamental rights.
Article 131-136–Court has the power to adjudicate disputes between individuals, individuals and state, state and state, state and union; the court is required to interpret provisions of the Constitution and interpretation given by the Supreme Court becomes the law of the land.
Article 372 (1) –Judicial review of the pre-constitutional legislation.

Grounds for judicial review

Constitutional Amendment

Review of the constitutional amendment done by the authority. All those amendments which are violating fundamental rights are declared void by the Supreme Court.

Administrative Actions

Illegality – The decision-makers have made decisions beyond their power or their acts and decisions are illegal. Their acts and decisions can be illegal if they fail to follow the law.
Irrationality –The authority should act properly. It should not be irrational and unreasonable. The court can raise the question if the decision that has been taken by an authority is unreasonable.
Procedural impropriety – This principle is a matter of procedure decision taken by decision-makers. This case should be decided and heard by people to whom it is delegated and not the other persons. The rules are:

Audi alteram partem.
Nemo judex in causa sua.

Public authorities should act fairly before decision-making. If they act unfairly, it would be an abuse of power.

Judicial pronouncement

Shankar Prasad v. Union of Indian in this case, the zamindars challenged the constitutional validity of the first amendment which is related to land reforms. The ground was a violation of fundamental rights under Article 13(2) of the Constitution. The court held that the amendment made under Article 368 is not a law under Article 13.

Golakh Nath & Ors v. the State of Punjab In this case, the constitutional validity of the 17^th amendment was challenged and it was heard by a special bench of 11 judges. The court held that Parliament under Article 368 has no power to abridge the Fundamental Rights. The court observed that Article 368 states the only procedure to be followed making amendments to the Constitution.

After this case, in article 13 clause 4 was included by the 24^th amendment of 1971 which States that any amendment made under Article 368 is not a law under Article 13. Marginal note 368 has changed which state “power of Parliament and the procedure to amend the constitution”.

Kesavananda Bharati v. the State of Kerala, in this case, the 24th and 25th amendments were challenged. The court held that the legislature can amend the Constitution but cannot amend the basic structure of the constitution. The basic structure of the constitution is the supremacy of law, council, and democratic form of government, secularism, separation of power, and federalism.

Minerva Mills v. Union of India In this case, the court struck down clauses 4 and 5 of article 368 which were inserted by the 42^nd amendment. The court held that these clauses destroyed the basic structure of the Constitution. Judicial review has inserted the basic structure of the Constitution.

Conclusion

Judicial review has covered legislature action, executive action, and judicial decision. India has adopted judicial review from American Constitution. The Supreme Court can not apply for judicial review. It can be used when the question of rule of law is challenged in the High Court or either Supreme Court. The concept of judicial review is the basic structure of the Constitution and it has become part of the basic structure in the case of Minerva Mills v. Union of India. It is used as a check and balance to check the other two organs of government. Judicial review is not an extended power of the judiciary. Excess use of judicial power without checking validity may violate the separation of power.

The article has been written by Prachi Yadav, a 2^nd Year student from Mody University of Science and Technology, Laxmangarh, Rajasthan.

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

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Legislative Acts of death penalty

The death penalty is a process that provides punishment to an individual if she or he commits an act that is forbidden by law. It is also known as capital punishment. Capital punishment is an inherent part of the Indian judicial system.

Article 21 of the Indian constitution is a fundamental right of every citizen. It is given “right to life” and “right to personal liberty.” This means the right to live will not be taken away from any individual except due procedure established by law. The offenses punishable by death are heinous crimes.

The death sentence is given under Cr.P.C. Section 354(3) and Section 368 of Criminal Procedure Code, High Court has the power to give a death sentence.

Death sentence punishable in IPC and the other Acts those offenses are:

120B – Punishment of criminal conspiracy.
121 – Waging, or attempt to wage war or abetment of war-waging, against the government of India.
132 – Abetment of mutiny (in the armed forces), if mutiny is committed in consequence of that abetment.
194 – Giving or fabricating false evidence with the intention to procure conviction of a capital offence.
302,304 – Murder.
305 – Abets the commission of suicide to child or insane.
376A, Criminal law amendment Act, 2013 – In the rape case, if the victim died or incapacitated in persistent vegetative state caused by injuries.
396 – Dacoity with murder.

Capital punishment present as a penalty in legislative acts:

Army Act, 1950, Air Force Act, 1950, and Navy Act 1956 under section 34 of these Acts.
Under Section 32- A of Narcotics Drugs and Psychotropic Substance Act, 1985.
Under Section 4 of the Sati (Prevention Act), 1987.
Under Section 3(2) (I) of the Scheduled Caste and Scheduled Tribe Act, 1989.
Under Section 3(2) of the Prevention of Terrorism Act, 2002.

Earlier mentioned laws are not applicable in all cases. The death sentence is present in Section 53 of IPC. Punishment is rarely used.

Validity of the death penalty

The Supreme Court upheld the validity of the death penalty in ‘rarest of rare cases. In the case of Jagmohan Singh v. the State of U.P., the death penalty has been discussed first time in this case. The validity of the death sentence was challenged on the grounds of articles 19 and 21 because it violates the right given under Article 19(1) and 21. The second argument was that procedure prescribed under Cr. P.C. was only limited to findings of guilt and not awarding death sentences. The last argument was Article 14, which guarantees “equality before the law.” This means everyone is equal before the law. In this case, two accused had committed murder, one was sentenced to death, and the other was sentenced to imprisonment for life. The Supreme Court held that the choice of the death sentence is made according to the procedure of law. It was observed that the Judge can choose between imprisonment of life and death sentence based on facts and nature of the case.

In Rajendra Prasad v. the State of U.P., the Supreme Court held that the death penalty is a violation of articles 14, 19, and 21. The death penalty should be abolished or not as a matter of legislature. The court should not decide whether it should be abolished or not.

Criteria for rarest of rare case

This principle has been laid down in the landmark judgment in Bachan Singh v. State of PunjabThis case has overruled the decision of Rajendra Prasad. It held that the death penalty in case of murder is not unreasonable and hence not a violation of article 14,19 and 21 of the Constitution of India, because in clauses (2) to (4) of Article 19 is mentioned: “public order” that is different from “law and order.” The death penalty will be awarded in the rarest of rare cases. The precedents of this case were used to award a death sentence.

In Machhi Singh v. the State of Punjab, in this case, the court held that the death penalty is given in rarest of rare cases. The Supreme Court has given some guidelines for conviction of the death penalty. These guidelines included Manner of Commission of the order, the motive for commission of murder, socially abhorrent nature of the crime, the magnitude of the crime and, the victim of the crime.

Clemency Powers

The prisoner can submit a mercy petition to the President of India and the Governor of State. Article 72 states the President of India has the power “to grant pardon or commute or remit the death sentence.” Article 161 states the governor of a State shall have the power to grant pardon or commute or remit and suspend. If the death sentence has been given in the session court judgment, then it should be confirmed by the High Court. If the High Court has sentenced the death penalty then the accused can appeal to the Supreme Court. If the Supreme Court has sentenced the death penalty then he can file a mercy petition to the President of India. If the President rejects the “mercy petition” then the accused can file a petition under Article 32 of the Indian Constitution for judicial review of the rejection of the mercy petition. In the case, Kehar Singh v. Union of India Indira Gandhi was shot dead by Satwant Singh and Beant Singh. She was Prime Minister. Kehar Singh had planned the murder. His son filed a mercy petition before the President of India but it was rejected. The court held that this case is the rarest of rare cases.

International Scenario

The death penalty is not only found in India but in many other countries as well. In recent years, 90℅ of the death penalty is found in Iraq, Saudi Arabia, and Pakistan, and China. According to an Amnesty report, 2,307 death sentences were passed in 56 countries in 2019. But some of the death sentences will be commuted. According to the Amnesty report, 106 countries have not allowed the death penalty. Eight countries have permitted the death penalty only for serious crimes in exceptional circumstances. In 142 countries, it has either been abolished in law or practice.

In India, many NGOs have supported the abolition of the death penalty. The main purpose of the NGOs is to stop inhumane punishment. The abolition of the death penalty movement was also supported by the United Nations during the drafting of the Universal Declaration of Human Rights (UDHRs). Russia has capital punishment but, it has not been used since 1996. Among the European countries, Portugal and Netherlands were the first countries to abolish the death penalty. Belarus is the only European country to practice the death penalty. It is found the practice of the death penalty is more in communist countries than in democratic countries.

Conclusion

The death sentence is a process provided by law. In India, the death sentence is given in the rarest of rare cases. Statutes and legislative Acts have provided the death sentence in certain cases. There are certain circumstances where less punishment has been provided to the accused like if he is a minor, pregnant woman, and co-accused. Now many countries are against capital punishment, and they have abolished the death penalty. If God has given life, then no one can take an individual’s life from him.

The article has been written by Prachi Yadav, a 2^nd Year student from Mody University of Science and Technology, Laxmangarh, Rajasthan.

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

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Introduction

The Consumer Protection Bill’s Chapter IV addresses “product liability,” a much-needed provision of the CPA of 1986. It refers to the duty of a product manufacturer or seller of any product or service to compensate a customer for any harm caused by a faulty product produced or sold or by a failure in related services. However, any damage caused by a violation of warranty terms, as well as any commercial or economic loss, would be excluded. A plaintiff may file a product liability lawsuit against a product manufacturer, a product service provider, or a distributor who significantly influences the product’s design, testing, or modification.

In the new Consumer Protection Act of 2019, the concept of product liability was added. The obligation of a product producer or seller of any product or service to compensate a consumer for any harm caused by a defective product created or sold or a deficit in connected services is known as product liability.

The old Act only addressed physical injuries, but the new Act also addresses mental anguish or emotional distress caused by a product. For example, if a product does not harm one but harms one’s property, and as a result, he suffers emotional distress, he can file a claim against the product’s manufacturer. And if the product manufacturer were not included in the product’s sale, the manufacturer would be held responsible. This rule would also extend to e-commerce sites. The accident, death, mental anguish, loss of consortium, or any other harm should be caused by the faulty good. The manufacturer will be held to a higher level of responsibility. The damage must be genuine and exclude any financial loss. Looking at this new definition of product liability, we can see that the government is now pressuring manufacturers to produce decent goods so that customers are covered, which is a significant change in the new Act.

Product Liability Law In USA ( Comparison between USA and Germany)

Product liability issues should be considered by German enterprises selling their products in the United States. Manufacturers, distributors, suppliers, retailers, and others who make commodities available to the public can be held liable for damage caused by those products under US product liability law. Manufacturers, dealers, suppliers, retailers, and those who produce goods available to the public may be held liable for accidents caused by such products under U.S. product liability law. The manufacturer or someone else in the supply chain may be held accountable if a faulty or unreasonable unsafe product harms a buyer, consumer, or bystander. Product liability cases brought by individuals or groups of individuals can be expensive and time-consuming.

Types of liability:

The claims of the consumers are based on (i) negligence, (ii) warranty violation, or (iii) strict liability.

The specifications in the production process become more stringent as the risk of bodily harm increases. The customer must establish a manufacturer’s breach of duty as well as the cause of specific harm.

A warranty is an express or implicit agreement between a manufacturer or distributor and a customer regarding the suitability of the goods. Express warranties can be established using a salesperson’s comments, literature included with the goods or promotional materials. If the vendor fails to fulfill the terms of the promise, argument, or representation regarding the product’s quality or form, the warranty is breached. Implied warranties exist even if no such claims are made. Unless the seller expressly rejects this, a seller implicitly warrants that a commodity is merchantable and fit because he knows the buyer will utilize it.

Strict liability holds a manufacturer or retailer liable for any injury incurred by a faulty product that poses an unreasonable risk to the customer, client, or property. Unlike warranty statements, it makes no difference whether the customer or consumer has a link to the manufacturer. Unlike negligence claims, there is no requirement to show that the maker behaved with reasonable prudence plaintiff merely needs to show that the goods were faulty when they left the defendant’s hands and that the defect harmed the consumer, who must be a reasonably anticipated user.

Types of defects

The various kinds of defects are as follows ;

a. Manufacturing defect: The buyer must prove that the product was unsafe for its intended use due to construction or manufacturing defect.

b. Design defect: A design defect implies that the product was made correctly, but the design poses a risk to users. Because a design error is a problem in the manufacturing process, it usually affects the entire product line rather than a single piece.

c. Failure to warn: The manufacturer’s responsibility is frequently to warn the user about a potentially harmful use or to provide instructions on how to use the product properly. In most cases, such cautions are provided in the labeling or instructional materials. Furthermore, if a flaw is identified after the product has been sold, the producer must always notify consumers. In general, US legislation is significantly stronger than German law when it comes to product warnings. While German courts typically do not require a warning because the product’s intrinsic hazard is considered self-evident, American courts are more consumer-friendly.

Defenses

The manufacturer may raise a variety of defenses to avoid liability. For example, he could claim that the consumer tampered with or misused the product or assumed the risk. Also, contributory negligence or a lack of proximate cause of injury are two other common defenses.

Damages

In The United States and Germany, the various forms of liabilities and flaws are indistinguishable, and most of the differences in our practice are seen in the area of damages. Consumers who have been affected by a product can seek damages in the same league as those accessible in Germany. They may also be reimbursed for non-economic damages like pain and suffering, as well as monetary losses such as medical bills and property damage. Non-economic damages in the United States, on the other hand, are frequently significantly more significant than in Germany. More importantly, in the United States, punitive damages may be awarded. Punitive damages are meant to penalize the tortfeasor and dissuade him and others from engaging in similar activity in the future rather than to pay the harmed consumer. As a result, the manufacturer must engage in malicious, evil, or particularly reckless behavior. Punitive damages are not often (in fact, they are rarely) awarded, but when they are, they can be enormous.

Case Laws:

In India, product liability lawsuits have been decided using the doctrines of negligence and strict liability. Historically, however, statutes have been quiet on the issue of seller or manufacturer liability for defective goods and services.

Henningsen v. Bloomfield Motors

In Henningsen v. Bloomfield Motors, Inc (1960), An automobile was bought by the plaintiff from the dealership of the defendant. The plaintiff’s wife was involved in an accident after the steering failed ten days after delivery. The plaintiff filed a lawsuit against the dealer and the car manufacturer. A condition in the plaintiff’s warranty, according to the dealer, absolved the defendant of any liability for personal harm. For 90 days or 4000 miles, the guarantee only covered the repair of damaged parts. However, Henningsen was awarded monetary damages by the court. It was determined that the sale of any object included an implied warranty of safety. Furthermore, because Henningsen’s wife incurred damages, the defendant could not argue that it was not accountable. According to the court, the warranty covered “every anticipated use of the products.”

Liebeck v Mc Donald’s Restaurants

Sheila Liebeck was severely burned after spilling a cup of McDonald’s coffee in her lap. Liebeck was in the hospital for eight days. Her medical therapy lasted two years and included skin transplants.

Liebeck offered her a $20,000 payment to cover her medical bills and lost wages. The matter went to trial after McDonald’s declined to accept an offer of US$800. Liebeck’s legal team was successful in proving that McDonald’s was liable since its coffee was served at a scorching 180°F to 190°F temperature. Coffee was served at a lower temperature of 140 degrees Fahrenheit in other establishments.

In 1994, a jury awarded Liebeck $2.86 million in punitive damages as well as $160,000 in medical costs. The so-called “Hot Coffee Case” became the most divisive product liability case in American history. Finally, the trial judge decreased the final settlement, and the parties agreed on a discrete amount.

Conclusion

The Consumer Protection Act, 2019 is significantly more extensive and in accordance with global consumer protection laws than the previous Act of 1986. The implementation of a product liability framework is a good reform that will aid in the streamlining of product liability lawsuits. The buyer beware principle has clearly given way to the seller beware principle. Despite certain ambiguities, the new regime is expected to change India’s product liability legal environment. The ease of approaching consumer forums, combined with the strict rule, will only encourage consumers to test these provisions to new heights. Product manufacturers, sellers, and service providers will need to complete their due diligence correctly to meet various legislative requirements. A checklist of such requirements, backed by appropriate legal and technological guidance, would go a long way toward safeguarding their and consumers’ interests.

The article has been written by Shruti Bose, a student of Christ (Deemed to be University), Lavasa.

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

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Adoption abroad, which is also called transnational adoption, describes the process of a couple or individual adopting a child from a different country, taking full responsibility for their care and maintenance the same way their natural parents did. A surge in international adoptions occurred during the Second World War. As a result of World War II, a large number of children was abandoned, the underdeveloped and developing countries were unable to provide them with a safe home. The idea of international adoption was born as a means of providing children with a healthy and safe environment where they could develop their full potential. In addition, the countries signed the Hague Convention for Protection of Women and Children to provide a framework for inter-country adoptions and to enable various laws in their respective countries to enforce such adoptions. It motivates many to go for adoption legally. Concerning international adoption and child protection, India has ratified the Hague Convention. Following that, India made several amendments to its inter-country adoption law. The adoption process has become more advanced over time regarding both intra-country adoption and international adoption.

Inter-country Adoption and Indian provisions

Inter-country adoption refers a social tradition, whereby, a baby born into one family becomes part of another through adoption, removing old biological lines and establishing new, socially approved ones.[i] In India, adoption was governed by the Hindu adoption and maintenance act, 1956, before The Hague Convention and it does not provide for international adoptions. Adoptions of juveniles and abandoned children are covered by the juvenile justice act 2000. In India, inter-country adoptions had been governed by the guardians’ act, 1890, which requires prospective adoptive parents to apply to the government for the appointment as guardians of the child. The proceeding of appointing a guardian was to be conducted before the district court, which is only authorized to pass an order if it is in the minor’s favour. Later on, a series of developments had made in the laws on transnational adoption, especially in India by the impact of Hague convention guidelines and also through various precedents.

Hague convention

As one of the leading organizations in the area of private international law, the Hague Conference on Private International Law drafted the “Hague Convention on the Protection of Children and Co-operation” regarding International Adoption. The agreement entered into force on 1 May 1995, three years after it was signed on 29 May 1993. The Convention provides formal recognition of inter-county adoptions at the international and intergovernmental levels. The Hague Convention requires a central authority to regulate and control all inter-country adoptions and to serve as the principle for such inter-country adoptions. A subsidiary principle of the Hague Convention is that transnational adoption can only be employed when the children are at risk of abuse or neglect in their country of origin, and it is preferable to place the children locally whenever possible.[ii] Hague Convention Guidelines stipulate that the central authority responsible for adoptions should make sure that the child is of the right age and informed of the adoption and its consequences. A child’s consent is a crucial part and it must be reassured that it has not been obtained through duress or by compensation. The guideline emphasizes preserving the child’s origins, his medical history, and the true parents, but access can also be limited in exceptional circumstances. There are various guidelines provided by the convention to bring the uniform and standard set of rules regarding adoptions abroad to ensure the welfare of the child.

India and Hague convention

The Hague Convention on Protection of Children and Cooperation of International Adoption is ratified by India which leads to the adoption of the same principles as the Hague Convention. For instance, the principles like establishing a system of cooperation between the contracting states to ensure the safeguards are adhered to before a transnational adoption occurs[iii] were followed in India as well. An independent body under the Ministry of Women and Child Development was created and named “The central adoption resource authority (CARA)”. CARA examines transnational adoptions and establishes guidelines and frameworks with respect to adhering to The Hague Convention guidelines. CARA stipulates that any foreign couple wishing to adopt in India must be sponsored by a child welfare organization or social service agency that is recognized by the government. Inter-country adoption agencies should be affiliated with the respective state or union territory. The agency responsible for the placement of children under inter-country adoption is called a placement agency (PA) and all such agencies must be registered and recognized by the central adoption resource agency (CARA). CARA guidelines encourage intra-country adoption; however, a new guideline allows only three types of children to be adopted. They were abandoned, surrendered, and orphaned children under a legitimate agency. Even though there are various guidelines set up by the CARA with respect to the Hague convention, Judiciary plays a prominent role in dealing with the unspoken issues of inter-country adoption, especially in India.

Precedents and their guidelines

Among the most prominent lawsuits relating to inter-country adoptions Lakshmi Kant Pandey v Union of India[iv] stays above all. After examining the inter-country adoption process in India, the Supreme Court issued guidelines for inter-country adoption. “Essentially, adoption is the best non-institutional way of rehabilitating a child. For a child to grow best he must be placed in his own culture; therefore, inter-country adoptions should only be considered as a last resort when all other efforts to place him in his country have failed and the child’s welfare demands. In both cases, whether it be adoption within the country or outside the country, the interest of the child shall always hold the utmost priority and all orders thus passed shall be paramount to the interest of the child”. As a result of the guideline from the case Government of India establishes a regulatory agency, ‘CARA’ in 1989. Thus, the agency setup plays a key role in regulating inter-country adoptions, as well as all other adoption agencies across the country. The court further held that “It is preferable to place a child in international adoption before he or she reaches the age of three.” According to the Supreme Court, “The chances of a child becoming integrated into a foreign environment and culture are greater if he or she is adopted before the age of three”.

During the case of Craig Allen Coates v. State through the Indian Council for Child Welfare and Welfare Home for Children, [v] the SC Court observed that “no adoption can be approved unless clear and convincing reasons are provided for inter-country adoption and the Adoption Reform Act should enforce stricter guidelines on this point”. Here, the SC clearly points out that the motive behind the adoption will be considered as a prominent factor in allowing the adoption. It was brought with an idea to avoid child trafficking.

SC of India had also allowed direct adoption in certain cases. Taking into account the unique circumstances in the case of Mr. Tim Cecil v Unknown[vi], the court held that the Supreme Court of India permitted a direct adoption outside of any of the countries that had ratified the Hague Convention on Inter-Country Adoption.

In the recent case of Varsha Sanjay Shinde & anr. v. Society of Friends of the Sassoon Hospital and others[vii], it was held that once a couple has approved a child, the child cannot be shown to Indian parents, who simply because they are Indian Parents should be given preference over overseas Indians and foreign couples. Through all of these judgments, the Supreme Court makes it clear that the preference should be given to parents of Indian descent, even when adoption is inter-country so that the child can grow and prosper in its own culture and heritage.

Indian judiciary had timely taken effective steps in solving the procedural and also the substantial questions that had been unsolved by the guidelines. In all these cases the judiciary is given prominence to the welfare of the children. The welfare of the children post-adoption guidelines was framed by the judiciary and they play a vital role in resolving the latency issues that arise.

Conclusion

As stated in Lakshmikant Pandey’s case[viii] “Every child has a right to love and be loved, to grow up in a loving and caring environment, and to be protected from both material and moral evils, and only a family can provide this”. In India, inter-country adoption is a relatively new trend. Various amendments and actions have been taken by the government to ensure the enforcement of inter-country adoptions in India and to ensure adoptions in other countries are legal. The Supreme Court has also outlined rules that need to be followed while any inter-country adoption takes place. Where the adoption is based on love and care, many times it was misused. Child trafficking in inter-country adoption has been on the rise, and only a very few cases have been reported. It emphasizes the lack of laws and guidelines preventing such activities. Children are the treasure and they are needed to be protected.

[i] Soura subha ghosh, inter-country adoption procedure, supreme court guidelines- adoption laws in India, http://www.legalservicesindia.com/articles/adopt.htm, accessed on 24.07.2021

[ii] Hague Convention, Article 4

[iii] Hague Convention, Preamble and Article 1

[iv] 1984 AIR 469

[v] 162(2009) DLT 605

[vi] AIR 2011 MAD 247

[vii] 2014(5)ALLMR297

[viii] Ibid,4

This article is presented by Bharatee Preeya A.K., pursuing B.B.A.LL.B (hons) at Alliance University, Bangalore.

Edited by- Deeksha Arora

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Introduction

Sedition laws were enacted in 17th Century England when legislators accepted that only positive opinions about the government ought to be expressed, as negative and coercive opinions were inconvenient to the public authority and government.

The law was initially drafted in 1837 by Thomas Macaulay, a British history specialist. At first, Section 124A was not included in IPC when it was authorized in 1860. Sedition was, in this manner, made an offense in British India since the Government speculated on a Wahabi uprising. Wahabi movement was kind of a revivalist movement that tried to purify Islam by discarding the un-Islamic practices which were introduced into Muslim society through ages. The period of the movement can be marked from the 1820s to the 1870s. Accordingly, in 1870, Section 124A was added to Chapter VI of the IPC, which is dedicated to offenses against the State.

Sedition is a crime under Section 124A of the Indian Penal Code (IPC) which says- ‘whoever by spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India’ shall be punished with life imprisonment.

Three explanations added to the provisions recommend that while “disaffection” will incorporate disloyalty and all feelings of animosity, comments without exciting or attempting to excite hatred, contempt or disaffection, won’t establish an offense.

Remarkable Sedition Trials Of All Time:

The penal provision proved to be useful to curb patriot voices and demands for freedom. The extensive rundown of India’s national heroes who were categorized as accused in cases of sedition includes Bal Gangadhar Tilak, Mahatma Gandhi, Bhagat Singh, and Jawaharlal Nehru.

The first among the nationalist was the trial of Jogendra Chandra Bose of 1891. Bose was the editor of the newspaper named Bongobasi. He wrote an article condemning the Age of Consent Bill for posing a threat to religion and for its negative influence on Indians.

Bal Gangadhar Tilak was the main individual to be convicted for sedition in British India. The British government brought the charge, alleging that the articles conveyed in Tilak’s Marathi paper Kesari would incite individuals to thwart the government endeavors for checking the plague epidemic in India. In 1897, Tilak was alleged by the Bombay high court for sedition under Section 124A and was put behind the bars for 18 months. Tilak was held liable by a jury made out of nine individuals, with the six white jurors casting a ballot against Tilak, and three Indian jurors casting a ballot in support of Tilak. Afterward, Section 124A was given various interpretations by the Federal Court, which started working in 1937, and the Privy Council, which was the highest court of appeal situated in London.

The Privy Council followed the precedents set down for Tilak’s situation and decided that incitement to violation was not a prerequisite for the crime of sedition and that incitement of feelings of enmity against the government was adequate to set up charge under Section 124A.

Status of Sedition Law after Independence: KM Munshi moved an amendment to eliminate “sedition” that was mentioned in the draft Constitution as a ground to impose limitations on the fundamental right of freedom of speech and expression. Therefore, the word “sedition” was subsequently removed from the Constitution when it was adopted on November 26, 1949, and Article 19(1)(a) gave complete freedom of speech and expression. However, Section 124A kept on remaining in the IPC.

In 1951, Jawaharlal Nehru introduced the first amendment to the Constitution to restrict freedom under Article 19(1)(a) and authorized Article 19(2). The new Code of Criminal Procedure, 1973, repealed the age-old 1898 Code of Criminal Procedure, and eventually, sedition was made a cognizable offense approving the police to arrest without a warrant.

Sedition Law As A State-Protection Mechanism:

Area 124A of the IPC has its utility in battling hostility to public, secessionist and terrorist elements.
It shields the chosen government from endeavors to overthrow the public authority through brutality and unlawful means. The continued presence of the government set up by law is a fundamental state of the steadiness of the State.
If the contempt of court welcomes penal section, condemnation of government should likewise invite penal sanction.
Numerous districts in various states face a Maoist insurgency. Rebel organisations essentially run an equal administration. These gatherings transparently advocate the overthrow of the state government by revolution. Against this background, the nullification of Section 124A would be ill-advised only on the grounds that it has been wrongly summoned in some exceptionally publicized cases.

Sedition Law As Colonial Oppressive Tool:

Section 124A is a relic of colonial oppression and unnecessary in a democratic government. It is a limitation on the constitutionally guaranteed freedom of speech and expression.
Dissent and reasonable criticism of the government are fundamental elements of vigorous public discussion in a democratic government. They ought not to be built as sedition. Right to question, scrutinize and change rulers is basic to a democracy.
The British, who introduced sedition to mistreat Indians, have themselves abrogated the law in their country. There is no explanation, for what reason ought not India to nullify this part.
The terms utilized under Section 124A like ‘offense’ are ambiguous and dependent upon various interpretations of the investigating officers.

Reference To Landmark Judgements:

The problem emerging from different opinions of the High courts was at last settled by the Supreme Court through its judgment in the Kedar Nath case in 1962, which is viewed as the most definitive judgment of the Supreme Court on the interpretation of the sedition law. A Constitution bench upholds the legitimacy of the sedition law laid down in IPC, holding that the objective behind the crime of sedition was to prevent the government set up by law from being overthrown by some unscrupulous activities. In Balwant Singh and Anr Vs State of Punjab (1995), the Supreme Court dropped sedition charges against two men who raised slogans for an autonomous Sikh majority State outside a movie hall in the aftermath of the assassination of the former PM Indira Gandhi. The court decided in favor of the accused, calling attention to the fact that acts didn’t add up to sedition since the slogans didn’t prompt any unsettling influence, and was not prone to instigate any violence in the minds of the targeted group.

The Law Commission of India, in its report, distributed in August 2018, additionally saw that while holding the law of sedition was important to secure public trustworthiness, it should not be used as an instrument to check free speech.

Conclusion:

India is the largest democracy globally, and the right to free speech and expression is the heart and soul of a well-functioning democracy. The articulation or thought that isn’t in agreement with the strategy of the government ought not to be considered as sedition. Obviously, it is fundamental to secure public safety and integrity. So, the best option is to choose a mid-way that will actually solve the problem rather than ruthless and baseless arrests and detention.

The article is written by Sayani Das pursuing BBA.LLB (H) from Amity Law School, Kolkata.

The article has been edited by Shubham Yadav, pursuing B.com LL.B. from Banasthali Vidyapith.

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The Personal Data Protection Bill, 2019 was introduced in the Parliament on December 11, 2019, and is based on the draft law presented by the Ministry of Electronics and Information Technology, by a nine-member committee of experts led by Justice B.N. Srikrishna in July 2018. A significant Supreme Court judgment to the Bill is the K.S. Puttaswamy vs. Union of India, wherein a nine-judge bench upheld the importance of the right to privacy as guaranteed under Article 21 of the Indian Constitution. The Personal Data Protection Bill, 2019 aims to protect the privacy of individuals concerning their personal data and regulates the relationship between individuals and entities that process their personal data. At the same time, it aims to create a resilient digital economy by ensuring innovation through digital governance. Key provisions of the Bill are ‘Data localization and individual consent would be required for the processing of personal data. Data Protection Officer to be appointed by the Significant Data Fiduciary, and instituting grievance redressal mechanisms to address complaints by individuals.

Key provisions of the Bill

Applicability: The processing of data to be done within the territory of India by either the government, any individual in India or any foreign company having the data of people in India.
Data Fiduciary: Data fiduciaries are bound to have a transparent way of processing data, make sure the data is secured with the necessary safeguards, the data processed should have a lawful purpose, notice is supposed to be given to the individual whose data is being processed and the consent of the individual should be taken for the processing of data.
Consent: There are cases where the consent of the individual is not taken for the data processing. If the data is processed for any legal proceedings, by the government for the benefit of the individual, reasonable purposes.
Data Principal: The data principal has the right to know the information about the data fiduciary, right to erasure of data, make corrections in the data, restrict the data or remove the data (except the sensitive data)
Data Protection Authority: The Data Authority makes sure that the data is not being misused and the processing and usage of the data is in compliance with the provisions of the Bill.
Transfer of Data: Sensitive personal data can be transferred outside the territory of India with the consent of the individual. Whereas the critical personal data cannot be transferred outside the territory of India.
Exemptions: The Government has the right to remove any agency given in the provisions of the Bill, for the security and integrity of the country.
Penalties: Penalties up to five crores for violations.

Comparison to International Conventions

Comparing the provisions of the European Union’s General Data Protection Regulation (GDPR), Brazil’s General Data Protection Law and India’s Personal Data Protection Bill (PDPB).
The GDPR definition of Personal Data is specific to information used to identify an individual whereas the PDPB definition of personal data is broader including profiling and interpretation of the data with any other information is in accordance with it.
The GDPR ensures the basis for processing, whereas the PDPB does not provide a necessary basis for the processing of data.
The requirements for consent under PDPB are more flexible when compared to the GDPR, where there are certain contractual necessities to be fulfilled.
In cases where the users withdraw their consent of their data, it is not specified in the new 2019 bill whether the consent would be asked as the Bill fails to address such issues. Whereas GDPR has provisions to re obtain user consent in the transition plan.
There are over 10 lawful bases for processing the sensitive data under the GDPR, whereas the PDPB does not have such detailed provisions.
The PDPB allows the individual to ask the data fiduciaries to delete their data with them, but this does not include the personal data (name, email address, home address and phone number). Whereas, GDPR gives the right to the individual to ask to delete all data from the data fiduciaries.
The Bill does not give the individual a solid right on the ownership of their data, whereas Brazil’s General Data Protection gives assured ownership to the individuals on their personal data.

Criticism

Even though the copy of the data is within the territory of India, the encryption keys can still be not in the reach of the national agencies.
In every provision that gives the government power over the data, the term ‘national security’ or ‘reasonable use’ is used which is not defined in the Bill and is very vague.
Even though the Bill aims for transparency, the Right to Information Act cannot be used to know the processing of the data by the government.
No clear provisions on the implementation of the Bill.
No solid ownership right is given to the data principal over their data.
No obligations on the data fiduciaries to notify the affected individuals in case of data breach.

Advantages

Data Localization can help in investigations in law enforcement agencies.
Cyber-attacks can be kept on check.
Fake news, or wrongful propagandas that is a threat to national security can be kept in check.
Increase Data Sovereignty in the country.
Data localization can help in increasing tax on the internet bodies in the country.

Suggestions

Although this bill has some loopholes or flaws that need further consideration, such as not properly attending to the concern regarding the right to privacy, ambiguity about the functioning of DPA, etc. If the government really wants this bill to be successful, then you

need to relax your guidelines on cross-border data transfer, the operation of the DPA in the actual sense of the word to make it independent,
to include retired judges of the Supreme Court or the Supreme Court and persons with experience in the field of data protection in the DPA.
To give the individuals full ownership over their personal data, give proper clarification on the provisions and implementation of the Bill,
to re obtain the consent from the user and to give RTI Act precedence in circumstances of breach or conflict.
Government should give lawful and reasonable exemptions to its national security agencies such as the Central Bureau of Investigation (CBI), Research and Analysis Wing (RAW), Intelligence Bureau etc. so that they can use personal and non-personal data for detection of criminals and prevention of any cognizable offence.

The article has been written by Hiranmayi Rajeev, a 2nd-year law student at Alliance University Bangalore.

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

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“A market without consumers will be a night sky without the stars and moon.”

The Concept Of Consumer Protection

The consumer movement started in developed countries almost a century ago. An American businessman was once quoted saying, “God created masses of mankind to be exploited. I exploit them. I will do his will.” This, though may not be the approach of every business person, is by and large true and hence proves the need for Consumer protection. Consumer protection guidelines or consumer protection laws came up as an answer to the malignant exploitation which the consumers faced at the hands of sellers and businessmen.

Previously it was the buyer’s duty to carefully examine goods for any defects or deficiencies before buying them. This was a time when the maxim “Caveat Emptor” was followed, meaning “let the buyer be aware.” However, gradually it was noticed that since there was no way by which a consumer could know or identify any inherent defect in a product (due to reasons such as lack of knowledge), they were being taken undue advantage of by the sellers. This resulted in the consumer movement. Protests and campaigns worldwide finally resulted in the shift from “Caveat Emptor” to “Caveat Venditor,” meaning, “let the seller be aware. Thus the obligation slowly shifted from the buyers to the sellers.

Consumer Protection In India

The Government had enacted various legislations for protection of the interest of the consumers after independence including, The Prevention of Food Adulteration Act 1954, The Standard of Weights and Measures Act 1976, The Bureau of Indian Standards Act 1986, The Monopolistic Restrictive and Unfair Trade Practices Act, 1969. However, India still lacked comprehensive legislation benefiting the interests of the consumers. Consumer Protection Act, 1986 was the first step towards safeguarding the rights of consumers in India. It guaranteed some fundamental rights to the consumers, which are explained as follows:

RIGHT TO SAFETY

This right confers the consumers with the power to insist on the quality of goods before buying them. They have the right to be protected against the marketing of hazardous goods and services. Consumers must buy products marked with ISI, AGMARK.

RIGHT TO BE INFORMED

Consumers have a right to be informed about the quality, quantity, standard, potency, and price of the goods as a means of protection from unfair trade practices.

RIGHT TO CHOOSE

Access to a variety of goods and services at a competitive price also is a right of the consumers. In the case of monopolies, the consumers must be ensured of a good quality of product at a fair price and must be protected from any unfair advantages which the seller might try to take.

RIGHT TO BE HEARD

The consumers have a right to voice their grievances at consumer forums and receive due compensation for any damages incurred.

RIGHT TO SEEK REDRESSAL

The rights to a fair settlement in cases of a genuine grievance and protection against unfair trade practices or exploitation of consumers have also been guaranteed under this Act.

RIGHT TO CONSUMER EDUCATION

To successfully implement the goal of consumer protection, consumers must be made aware of their rights and ways in which they can exercise them effectively. Rural consumers need special attention in this aspect as they face the most exploitation on account of lack of awareness.

The same Act also introduced a three-tier grievance redressal mechanism. Unfortunately, people in India, less aware of their rights as well as remedies, could not utilize the provisions to their full advantage. To correct this problem, the Government has undertaken measures to educate the consumers about their rights. One such popular campaign was ‘Jago Grahak Jago’ in 2005, which aimed at creating awareness on consumer protection.

Throughout the last decade we have seen an evolution in the ways of trade. As online shopping portals became the go-to place for an increasing number of people, the Parliament realized the loophole in the present Consumer Protection Act, 1986, as it did not cover online transactions. The legislature’s objective was to leverage the power of consumer protection, which had previously been limited to products and services under the Consumer Protection Act of 1986, to include complaints and difficulties stemming from the expansion of virtual markets. The legislature, keeping in mind all the new provisions that needed to be added to keep pace with the digital age, scraped the old statute and enacted the Consumer Protection Act, 2019 which included new concepts such as e-commerce, product liability, mediation, and the establishment of a Central Consumer Protection Authority as an executive authority for settlement of all consumer grievances.

E-Commerce And Its Inclusion

Under Consumer Protection Act, 2019, e-commerce has been defined as “means buying or selling of goods or services including digital products over a digital or electronic network” Unlike the previous legislation, it includes all online transactions shielding customers of online shopping portals from getting cheated or online frauds. Liabilities such as maintaining a fair trade practice, reimbursing or compensating consumers in return for products, and correct and accurate advertising of products were placed on e-commerce entities and online sellers. Also, incorporating all e-commerce organizations under the Companies Act, 2013 was made compulsory through this Act.

The new Act has enhanced consumer rights by making e-retailers more accountable and creating a transparent redressal procedure, which has helped customers in making more informed decisions when purchasing products and services. Effective implementation of rigorous restrictions, as well as penalties and punishment, has acted as a catalyst in deterring the producers and retailers from using dishonest and exploitative practices. In addition to this, convenient grievance resolution mechanisms have encouraged more consumers to engage in online transactions and strengthened consumers’ confidence in e-retailers, finally resulting in the development of this sector and an increased flow in profits.

Product Liability Under CONSUMER PROTECTION ACT, 2019

Under Chapter VI of the Consumer Protection Act, 2019, the concept of product liability has been defined. It was not previously included in the 1986 act and is a new addition in order to make the product manufacturers, sellers, and service providers more stringently liable against any defective product sold or poor service delivered. This concept was developed based on the maxim of “Caveat Venditor” Under the following circumstances, and if any harm is suffered by a consumer, they can bring in liability action against the manufacturer or seller:

If a product contains any manufacturing defect or is defective in design
It does not conform to the express warranty
The product does not have sufficient information about the correct method of usage or any warning against any potential harm or injury that could be suffered on account of any incorrect use.
In the case of a service provider, if he was negligent in providing the service, which resulted in an injury to the consumer, or the service delivered was deficient and inadequate, he could be made liable.
A product seller can be made liable in cases where he had a substantial amount of say over designing, manufacturing, packaging, or labeling of the product that caused harm.
If a product seller altered or modified the product while selling it, then also he could be made liable.

One important point to note is that the liability of the product manufacturer is absolute under all circumstances. Even if he claims to have taken substantial care and there was no negligence on his part, he cannot escape his liability. In comparison, there are certain exceptions allowed to product sellers. In cases where at the time of the accident, the product had been altered or misused, the product seller cannot be made liable.

The Supreme Court, in a case, pointed out that in issues relating to Product Liability, the court will adjudge the matters based on the facts and the evidence presented in the court of law.

Mediation Under CONSUMER PROTECTION ACT, 2019

Alternative Dispute Resolution methods have become an increasingly popular method of settling disputes in the corporate sectors. Through the 2019 act, the Government allowed mediation to be used as a process for addressing the grievance of consumers. In the case of Afcons Infrastructure Ltd v. Cherian Varkey Construction Co. (P) Ltd, the Supreme Court ruled that all the matters related to commerce, trade, consumer dispute, or contract could be mediated. It is placed a duty on the State Government to establish mediation cells, the mediating officers of which, while moderating a case, must follow the principles of natural justice.

The guidelines to be followed in the process of mediation were laid down by the Supreme Court in the case of Bijoy Sinha Roy V Biswanath Das & Ors. According to the guidelines, if at any point while hearing the consumer disputes, the officer feels that such an issue can be effectively settled through mediation, then with the consent of both the parties, it can be referred for mediation.

Conclusion

The Consumer Protection Act, 2019, in its true sense, has made it easier for consumers to voice their dissatisfaction with products or services obtained and get remedies for the same. The inclusion of online sale services and the introduction of settlement dispute mechanisms such as mediation have made a positive impact. Also, the undertaking of campaigns to create awareness among consumers has resulted in an informed citizenry resulting in less exploitation of consumers.

The article is written by Debasmita Nandi, a first year law student of CHRIST (DEEMED TO BE UNIVERSITY), LAVASA.

The article is edited by Shubham Yadav, pursuing B.com LL.B. (4th Year) from Banasthali Vidyapith.

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Introduction

“We won’t have a society if we destroy the environment.”
Margaret Mead

The best gift that mankind possesses is not the economy, it’s the environment, the gift that mother earth gave, without repentance. Our environment is perhaps the main facet due to which survival is possible on this planet. Also, it is the only thing that makes life reasonable. Without it, we can’t endure even a single day.

India’s Biodiversity & Hotspots

India has an extraordinary abundance of biodiversity in its forests, wetlands and marine regions. It has a wide scope of natural surroundings going from tropical rainforest to snow capped vegetation and from temperate forests to coastal wetlands. India comprises fertile river fields and high plateau and a few significant waterways including the Ganges, Brahmaputra and Indus. India shows an incredible variety in environment, geography and topography henceforth exceptionally wealthy in biodiversity. The Ministry of Environment and Forest Govt. of India (2000) records 47,000 types of plants and 81000 types of animals.

This is about 7% and 6.5% individually of flora & fauna of the world. Around 5000 types of blooming plants have their origin point in India. India is observed to be the pivot of origin of 160 types of harvest plants and 320 types of wild members of cultivated yields. India has 372 mammal species (eighth most in world), 1228 types of birds (eighth in world), and 428 types of reptiles (fifth in world). India has in excess of 50,000 types of insect species including 13000 butterflies and moths.

There are 4 out of 36 biodiversity hotspots of the world situated in India — The Himalayas, the Indo-Burma region, Western Ghats, and the Sundaland. Hotspots will be regions that are very rich in species, have high endemism (species restricted to a specific region), and are under constant danger.

Concept of hotspots of biodiversity was instituted by Norman Myers in 1988. He recognized they needed regions for in situ protection. Certain regions in different parts of the world are known for their mega biodiversity of species. India contributes around 8% of worldwide biodiversity, in spite of the fact that it bears just 2.4 percent of the world’s land space. These regions are especially wealthy in floral riches and endemism, in blossoming plants as well as in reptiles, amphibians, butterflies and mammal species as well.

Classification of a Biodiversity Hotspot

To qualify as a biodiversity hotspot the region must fulfill 2 criteria:

It should have no less than 1,500 vascular plants as endemics — or, in other words, it’s anything but a high level of vegetation discovered no place else in the world. A hotspot is irreplaceable.

It should have 30% or less of its unique normal vegetation. In short, it should be threatened.

Steps taken to safeguard the Indian biodiversity & hotspots by government

The Central Government has legislated the Wildlife (Protection) Act, 1972. The Act, inter alia, imparts the formation of reserved Regions for the safeguarding of wildlife and furthermore imparts punishment for hunting of determined fauna prescribed in the Schedule I to IV thereof. Trade in rare and endangered species ought to be prohibited. National parks and sanctuaries ought to be made for the safeguard of wildlife.

Wetland (Conservation and Management) Rules, 2010 have been outlined for the safeguard of wetlands, in the States.

The Scheme of National plan for Protection of Oceanic Ecosystem additionally gives help to the States to the administration of wetlands incorporating Ramsar sites in the country. Wildlife Crime Control Bureau has been set up for control of illicit trade of wildlife, including endangered species.

Government of India is signatory to Convention on Biological Diversity (CBD). CBD was set up in 1992-93 after the Rio de Janeiro Earth Submit. (i) To preserve the biodiversity. (ii) To utilize the biodiversity and its components but in a reasonable way. (iii) Impartial dispensation of advantages of biodiversity.

Environmental courts & tribunals like National Green Tribunal were set up for the protection of environment & wildlife in India. Schemes & projects like Narmada bachao andolan, project tiger, green India mission, recovery of endangered species etc. were launched for safeguarding the biodiversity & hotspots in India.

Judicial Assistance/Pronouncements

The shortfall of an unmistakable law is moving a back-and-forth between clients of natural assets and administrative bodies. It is presently about time that the judiciary strides in to develop jurisprudence on manageable and even handed administration of biodiversity while protecting the Constitutional principles against arrest, search and seizure.

In the case of Rural Litigation and Entitlement Kendra, Dehradun vs. State of Uttar Pradesh, the two judge bench of J. Bhagwati & J. R. Mishra, Seat of Judges PN Bhagwati and Ranganath Mishra, presented the concept of “Sustainable Development”. An NGO named RLEK filed a case against limestone quarrying in the valley in 1987. It was expressed that the lasting resources of humankind are not to be depleted in one age. The natural resources ought to be utilized with imperative consideration and care so ecology and climate may not be influenced in a critical manner.

In case of, Indian Council for Enviro-Legal Action vs. Union of IndiaJ. Reddy held that the monetary expenses of forestalling or curing harm brought about by contamination should lie with the endeavors which cause the contamination by embracing the “Polluter Pays Principle”. The Court put forth a limit for the seaside states to formulate coastal administration designs and restrict industrial or construction within 500 meters of the Elevated Tide Line.

In the case of, Animal Welfare Board of India vs. A. Nagaraj and Ors., the Supreme Court banned Jallikattu & other animal races & fights, alluded that even these carried in the name of culture & tradition but these are illicit acts that the humans perform. Referring to Section 3 & 11 The Court declared these acts illegal & imposed fines under the Prevention of Cruelty to Animals Act, 1960.

TN Godavarman Thirumulpad vs. Union of India and Ors., Supreme Court held & set up a Compensatory Afforestation Funds Management and Planning Authority (CAMPA), to survey the afforestation endeavors, to direct the remuneration who endured because of deforestation, and to speed up exercises for safeguarding of forests.

In the Tarun Bharat Sangh vs. Union of India and Ors., Supreme Court passed the verdict that restricted/banned the mining activities that were taking place in the Sariska Wildlife Sanctuary & proved to be a great source for the protection of Sanctuaries from the mining activities.

Conclusion

As we progressively become clued-up of how significant biodiversity depletion has become, we are gradually making laws and treaties to safeguard these resources. This duty of protection needs the involvement of stakeholders and consumers. Essentially distinguishing species in danger cannot initiate protection. Individuals are to be taught in such a manner. They should preserve biodiversity.

The article is written by Ajay Kataria, from Dr. B.R. Ambedkar National Law University, Sonepat, Haryana.

The article is edited by Shubham Yadav, pursuing B.com LL.B. (4th year) from Bnasthali Vidyapith.

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Introduction

Section 148 of the Indian Contract Act, 1872 defines the term Bailment, that upon a contract when one person delivers goods to another for some purpose and when the motive is achieved. That bail was either returned or else disposed of according to the directions discussed earlier in the contract of the person delivering them. Thus the Law of Bailment involves the transfer of possession from one person to another. The title of ownership did not get affected in this case.” bailor” is the one who delivers the goods. And “bailee” is another person to whom goods are delivered.

Essential Elements of the Law of Bailment

Delivery of possession.
Delivery of Goods upon contract.
Delivery of Goods for purpose.

How Bailed goods delivered to the bailee

Section 149 of the Indian Contract Act states that when the bailee made delivery by doing anything which has the effect of putting the possession of the goods of any person authorized to hold them on his behalf. Then, bailment happens between the parties.

Delivery of possession is of two types.

Actual delivery- when goods possession is delivered from the bailor to bailee, then actual delivery happens.
Constructive delivery- physical transfer of goods does not happen here. Goods are remaining with bailor only, but something decided which has the effect of putting them in possession of bailee.

Duty of Bailor

Duty of bailor to disclose faults in goods bailed- Section 150 of contract act, binds the bailor to reveal all the defects of goods bailed which he knows. And if he is not doing so, he will be responsible for damage arising from such faults directly to the bailee.

Duty of Bailee

Duty of reasonable care

Section 151 of the act binds the bailee to take as much care of the goods bailed to him as a prudent man takes care of his goods.
Section 152 states that if the bailee has taken due care, he is not responsible for loss, deterioration, or destruction of goods bailed.

Duty not to make unauthorized use

Section 154 of the provides that the bailee is liable to compensation if he makes any use of the goods bailed that is not according to the conditions of the bailment.

Duty not to mix goods

Section 155 of the act states that if the bailee mixes the bailor’s goods with his goods but with the bailor’s consent, the bailor and bailee shall share an interest in proportion to the mixture produced.
Section 156 states that if the bailee mixes the bailor’s goods with his goods which is separable. Without the bailee’s consent, then the bailee is bound to give the expense of separation and any damage arising from the mixture.
Section 157 holds the bailee liable to pay compensation for the loss of the goods by mixing the bailor’s goods to his goods which cannot be separated and mixed without the bailor’s consent.

Duty to return goods bailed

Section 160 of the act provides bailee duty to return or deliver goods bailed according to the direction of bailor as soon as the time expired for bailment, or the purpose has been accomplished for goods bailed.
Section 161 states that on account of faults of Bailee the goods are not delivered at the proper time, then it is Bailee’s responsibility for any loss or destruction of the goods from that time.

Rights of Bailee

Right of lien – it gives the right to the bailee to retain goods or property until some charges due upon it or services rendered for its improvement to be paid by the bailor.

Two types of lien in bailment-

Particular lien
General lien

Right to sue the wrongdoer

Section 180 of the Act confers the right of the bailee to sue wrongdoers.

Landmark Judgments

Hutton v Car Maintenance Co. – In this case, the plaintiff company maintained the defendant’s car. The defendant does not pay some dues. Then the plaintiff’s company took the car into its possession and claimed a lien for expenses. The court rejected the claim.
Ram Ghulam v Government of Uttar Pradesh – In this case, police recovered some stolen ornaments from the plaintiff. But in the police station, they were again stolen. Plaintiff sued the government for the loss. The court dismissed the case.
Ultzen v Nicolas – In this case, a waiter took the overcoat of the plaintiff and hung it on behind the chairs. After having dinner, the plaintiff found that his overcoat was missing. He sued the owner for the loss of the coat. The owner was held liable.
Shaw &Co.v Simmons & Sons- In this case, the plaintiff consigned books to the defendant, a bookbinder. But the defendant failed to deliver them within a reasonable time. The defendant was held liable for the loss of the books.
Installment Supply (P) Ltd v Union of India – In this case, the court held that the Hire-purchase contract is not merely a bailment. But it has two aspects, bailment and an element of the sale.
Ashby v Tolhurst – In this case, the court held that the main essence of bailment is the transfer of possession of goods.
Jan and Son v A. Cameron – In this case, the plaintiff stayed at the hotel, his article stolen by someone. The court held the Hotelier liable.
Morvi Mercantile Bank Ltd v Union of India – In this case, the court held that Railway receipt delivery would amount to delivery of goods.

Conclusion

The position of bailment in India is clear from section 153 of the Contract Act. The law of bailment specifies the rights, duties, and liabilities of the bailee to avoid disputes between the bailor and the bailee. It forms a very vital part of the Indian Contract Act. Bailment is something people enter daily, even without realizing it. Its development with time has been crucial. Therefore, the laws should be dynamic but should also be rigid at the same time.

The article is written by Megha Patel, a 2^nd –year law student at The Mody University of Science and Technology, Laxmangarh, Rajasthan.

The article is edited by Shubham Yadav, pursuing B.com LL.B. from Banasthali Vidyapith.

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Introduction

Plea bargaining refers to negotiating an agreement between the prosecution and the accused, according to which the accused would plead guilty for a lesser punishment, or dismissal of other charges, in case there are multiple charges. This is supported by few people because it reduces the burden of the judiciary, by getting a confession from the accused. There are also a few criticisms regarding plea bargaining. The concept of plea bargaining is very common in the United States. There were always provisions in the Criminal Procedural Code for an accused to plead guilty, but not for plea bargaining. The concept of plea bargaining was made as a law, when the Criminal Procedural Code was amended by the Criminal Law (Amendment) Act, 2005, to include these.

Types Of Plea Bargaining:

There are three types of plea bargaining, which are discussed as follow:

Sentence bargaining: – in this type of bargaining, the defendant tries to get a lesser sentence for pleading guilty. It reduces the need to go into trial and gets over quickly when compared to a full trial.
Charge bargaining: – in this type of bargaining, the defendant agrees to plead guilty for a lesser charge, for dismissing a greater charge. It is the most common plea bargaining in criminal cases and it is also known as a plea.
Fact bargaining: – in this type of bargaining, the defendant agrees to certain facts, to prevent other facts from being introduced as a piece of evidence. This is usually not considered in a court, because it is considered to be against the rules of the criminal justice system.

Plea Bargaining In The US:

The concept of plea bargaining is used very commonly in the US, with nearly 90% of the criminal cases preferring plea bargaining instead of jury trials. But in the early times, plea bargaining was considered to be unethical and even sometimes illegal, because sometimes the plea bargaining might not be voluntary, or even a wrongly accused person could accept plea bargaining for a reduced sentence. In 1967, a report by the President’s Commission on Law Enforcement and Administration of Justice explained how widespread plea bargaining is and recommended it to be recognized.

The evolution of plea bargaining in the US can be seen in the following cases, to understand how they became an established and protected procedure. In 1969, in the case of Boykin v. Alabama, the US Supreme Court quashed the conviction of a man, who pleaded guilty to five counts of robbery and received five death sentences. This was because the trial judge did not ensure that the man pleaded guilty voluntarily. At present, the judges ensure that the plea bargaining was done voluntarily by questioning the accused in court. Following this, the US Supreme Court said that it is justifiable to award the accused who pleaded guilty with reduced penalties in the case Brady v. The United States and also said that the accused could also plead guilty even when they feel like they are factually innocent in the case North Carolina v. Alford. In addition, the Supreme Court in the case of Santobello v. New York, ruled that if the prosecutors break any of the conditions of the plea bargaining, then the accused is entitled to be provided with a proper legal remedy. The court also went ahead to say that plea bargaining is not just an essential part of a proceeding but is also highly desirable. Furthermore, the Supreme Court in the case of Bordenkircher v. Hayes held that the prosecutors may threaten the accused to bring additional charges against him, if he refuses to plea bargain, but those charges should be valid.

Plea Bargaining In India:

Like mentioned earlier, the concept of plea bargaining was introduced in the Criminal Procedural Code by The Criminal Law (Amendment) Act, 2005, which introduced chapter, XXIA, in the code, and came into force on July 5, 2006. As per this amendment, plea bargaining will be allowed for cases in which the maximum punishment is imprisonment for seven years; offenses that do not affect the socio-economic condition of the country and also do not include offenses committed against women and children below 14 years of age. Even before this amendment. The Supreme Court looked into the concept of plea bargaining in a few cases like, The State of U.P. v. Chandrika and Kripal Singh v. State of Haryana, in which the court said that neither the Trial Court nor the High Court has the power to overwrite the minimum penalties prescribed by law on the basis of plea bargaining. The Sakharam Bandekar case, in 2007, became the first case in India, where the accused requested plea bargaining for confessing to his crimes. The CBI opposed this by saying that the claims against the defendant were very serious corruption charges. The court took the views of the CBI and rejected the defendant’s plea and convicted him.

The Delhi High Court in the case of Pardeep Gupta v. Statedirected the Trial court to look into the provisions of Chapter XXIA of Criminal Procedure Code, reconsider the plea bargaining application of the accused, and said that it should be considered seriously. The Supreme Court has asked the States to consider plea bargaining to reduce a large number of pending cases before the court. Before the 2005 criminal amendment, the courts did not consider the concept of plea bargaining very positively, even after the amendment, only a very few times the court has looked into plea bargaining as a serious issue. The courts should really consider this as a measure to finish the trial quickly and reduce the pendency of cases before the court.

Criticisms Of Plea Bargaining:

The concept of plea bargaining has a few advantages like the case could be disposed of quickly, and that it is a hassle-free method, but it also has a few criticisms, which would be discussed now. For starters, plea bargaining should be made voluntarily, an accused cannot make a plea bargaining because of coercion, or because of any misrepresentation. If the court doubts that it was made involuntarily, then the court has additional work to check if it was made voluntarily or not. Furthermore, many feel that plea bargaining lets the offenders not get the punishment that they deserve. Finally, few people believe that the innocent accused sometimes agree to plea bargain as they feel like they are stuck and don’t know what to do.

Conclusion:

The concept of plea bargaining is not completely new in India, the courts have from time to time looked into this in certain cases, but most of it did not have a positive impact on it. But, along with time, the need for plea bargaining in India, was felt. But even when a change was brought, by the Legislature in 2005, it was not properly used by the people and the judiciary, too, did not work a lot for its proper implementation. Everything has a positive negative side; it is not right to judge plea bargaining based on its disadvantages alone and the concept of plea bargaining in India is only evolving and it will be improved only with proper and continuous usage. The US is one of the countries which use plea bargaining regularly. The Indian legal system is not yet ready to adopt plea bargaining like the US. But after a few years, India can try to implement it like that. The main reason for the implementation of plea bargaining in India is that India has more than half of the inmates who are under trial and a large number of pending cases before courts.

The article is written by Santhiya V., pursuing BBA LLB (Hons.) at Alliance University.

The article is edited by Shubham Yadav, pursuing B.com LL.B.(4th Year) from Banasthali Vidyapith.

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