Tag: #constitution

Indian Concept Of Justice

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The present article has been written by Aanya Gupta, pursuing BBA LLB from Vivekananda Institute of professional studies, GGSIPU , New Delhi

Introduction


The Indian Constitution deals with justice, freedom, equality, integrity, and dignity. The concept of justice depends on the interpretation of the constitution. The Constitution stipulates justice, namely social justice, economic justice, and legal justice, which are an integral part of the theory of distributive justice. The phenomenon of “distributive justice” is based on two important points: first, fair distribution is not only about resources and materials, but also rights, obligations, and responsibilities; secondly, justice is a phenomenon, not only for the people, who govern but also for those who govern. People who govern themselves. Article 14 and Article 21 of the Indian Constitution respectively mention “all people are equal before the law” and “the right to live with dignity”. This is the soul of constitutional governance; the constitution has the upper hand because it gives the people identity. Identity in society is everything to justice; we demand our identity, not just for justice. Many philosophers offer different concepts of justice. It cannot be said that the Constitution of India is based on one theory, but is the result of all jurisprudential theories. It requires real efforts for society, the individual, the law, the economy, and general development.

Justice is simple, but the world is complicated, so the application of justice in the world contains some complicated things. 2 When we consider questions of economic and social policy, justice will guide citizens to reflect. According to Amartya Sen in his book “The Concept of Justice”, the doctrine of political economy must include an explanation of the public interest based on the concept of justice. The theory of justice that can be used as a basis for practical reasoning must include methods for judging how to reduce injustice and promote justice, rather than merely aiming to describe a completely just society and practice as many of its main characteristics. theory. Justice in contemporary political philosophy. Justice is not a matter of reasoning at all; it is about being appropriately sensitive and having a proper sense of smell for injustice. The requirements of the theory of justice include playing a rational role in the diagnosis of justice and injustice. Faced with different theories of justice, the eternal dilemma is to find a tangled balance measure suitable for the ever-changing human affairs. The problem lies in the relationship between “justice” and “injustice”; what if the second is only the absence of the first?


Principle Of Natural Justice



The principles of natural justice are considered basic human rights because they try to provide justice to the parties in a natural way. Natural justice is another name for common sense justice. It is procedural, and it also aims to ensure judicial justice to the parties. The Supreme Court judge once said that the goal of natural justice is to ensure justice, or (negatively speaking) prevent judicial errors. It only operates in areas not covered by the law. It replaces the law and supplements it. 

 The principles of natural justice are:

1) Nemo Debet Esse Judex In Propria Causa, which means that no one can serve as a judge in his case. 

The first minimum requirement of natural justice is that the authority that decides the decision must act impartially and fairly. The judge must be fair. There can be many types of bias, such as monetary bias, personal bias, and official bias. The purpose of this rule is to ensure that the public has confidence in the fairness of the rewarding process.

 2) Audi Alteram Partem, which means to listen to each other. 

This principle means that the person must have a fair opportunity to defend himself. This means that no one will be convicted without being heard. In addition, it is very necessary not to try anyone without a fair hearing. Therefore, they will have the opportunity to respond to the evidence against them by providing all the facts and evidence that the court knows in their favor.

Constitutional Imperatives



ARTICLE 14
This article guarantees – equality before the law and equal protection of law within the territory of India. It binds the State to ensure that there is no discrimination being practiced in the nation. It includes the principle of the Rule of Law.

ARTICLE  15(1)
It prohibits discrimination on the grounds of religion, race, caste, gender, or place of birth. It is the duty of the state to make special provisions for women and children, and the advancement of any social and educationally backward classes of citizens, and Schedule Caste & Scheduled Tribe peoples.

ARTICLE 21
No person shall be deprived of his right to life and personal liberty except according to the procedure established by law.

ARTICLE 22
It gives special rights to arrested persons in certain cases which within its ambit contain very valuable elements of Natural Justice.

ARTICLE – 32 and 226

It collectively provides for Constitutional Remedies for violation of Fundamental Rights and Legal Rights. They can be exercised by issuing appropriate Writ, Direction, and Orders.


Conclusion


There is no value in linking the Constitution of India to a theory of justice because it is a combination of all methods of judicial jurisprudence. The constitution is an ideal and requires practical efforts for society, the individual, the law, the economy, and integral development. When we speak of the Constitution, we often speak of justice; because it is not only related to the development of people, but also the peace, security, and dignity of people; justice is important because it gives identity to people; an LGBT Issues Open space leads to a certain degree of legitimacy and requires more active rights, such as anti-discrimination measures and socio-economic benefits. Since Ward’s theory is consistent with article 15 and the article of the Constitution, we should apply an effective educational plan for balanced intelligence among people of different classes in society. Justice is fundamentally a matter of treating people equally and then trying to show that we must apply different standards of distribution in different situations. It includes a series of rights, such as freedom of expression and the right to vote that define citizenship, and the right to material resources that allow people to operate effectively as citizens in a political sense. Justice is not a fact, but an attitude to the facts that must be implemented to maintain the legitimacy of the constitution.

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Mercy Petition: Boon or Bane

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This article is written by Vishrut Gupta, a law student from Lloyd Law College. The article aims to explain to the readers about the Mercy Petition which acts as a lifeguard provision for a guilty person.

Introduction

According to the Cambridge dictionary, ‘mercy’ literally means- the act of forgiving someone more specifically when you have some authority. But, as the word enters the periphery of the legal world, it carries a different meaning altogether. When the punishment of a convict is remitted, it is done through a ‘mercy petition’. A mercy petition is an application filed by an accused or a convicted person to the president of the supreme authority requesting to remit/ reduce the death sentence. It is done usually in the case where a miscarriage of justice or suspicious conviction is done. This concept of mercy petition is followed in many countries such as India, the US, UK, Canada, etc. Different countries have distinct authorities to cater this mercy petition as per the provisions of their constitution but mostly it is addressed to the president of a country. In the US and India, mercy petitions are subject to the discretion of the president. If the whole sentence is canceled, it is known as ‘pardon’ and if it is remitted partly after or before sentence, it is known as ‘clemency’ or ‘mercy’.

Legal Provisions

Article 21 of the constitution of India ensures that no person will be deprived of his right to life. Mercy petition following article 21 and article 14, which talks about the right to equality, clearly has some essence of the human sentiments and protects the basic human rights of every prisoner where the convictions are suspicious. Article 72 of the Constitution says that the President shall have the power to grant pardons and reprieves of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. Similar power is given to the governors under Article 161 of the Constitution. The duration taken by the executive for disposal of mercy petition depends on the nature of the case and the gravity of the crime. It also depends upon the number of mercy petitions submitted to the court. The court, therefore, cannot set a time limit for disposal of even for mercy petitions. But, recently the Home Ministry has brought some essential changes in the laws on the mercy petition.

When Can a Mercy Petition be Filed? 

Mercy petition is the penultimate step for a prisoner. A convicted person cannot directly file a mercy petition. There are several other provisions to provide justice and if they don’t work, the person opts for the last option i.e. the mercy petition. The procedure and the steps involved before filing a mercy petition are:

  • A punishment is usually given by a trial court and if there is a suspicion in the conviction or miscarriage of justice is observed, an appeal can directly be filed in the High Court seeking justice.
  • If High Court does not entertain and dismisses the plea, the convicted person can file a review petition directly in the Supreme Court to seek remission in the sentence. If he faces another rejection, a curative petition helps.
  • Curative petition was first introduced in the case of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002). It works on the Latin maxim- “actus curiae neminem gravity” meaning that the court shall not be prejudice in its actions. The main objective is to prevent the abuse of power in due process and eliminating the miscarriage of justice. It is supported by Article 137 mentioned in the constitution of India.
  • If the curative petition also fails, the last resort of mercy petition opts which might help the convict or prisoner. 

Layers Through Which the Mercy Petition Passes

The petition is filed and submitted by the prisoner or his relative to the governor or president depending upon the case. It is then received by the Secretariat of the President. The Secretariat sends it further to the Ministry of Home Affairs for their recommendation. The Home Ministry discusses it with the concerned state and checks the details such as the background of the criminal and the gravity of the crime. The Ministry after consulting with the state prepares a report with suggestions and sends it back to the President. The President after going through everything grants the pardon/remission or dismisses the plea depending upon the facts and need of the situation. This is a very time taking process and sometimes it takes years.

Powers of President

  • Pardon: To cancel the whole sentence and conviction of the prisoner.
  • Remission: The nature of the sentence remains the same with the reduction in the punishment like decreasing the number of years of rigorous punishment.
  • Respite: Certain special situations lead to the change in the punishment such as critical health issues to the prisoner.
  • Reprive: The execution is delayed for some time to provide the guilty person the time to prove his innocence.
  • Commute: The nature of the punishment is changed to decrease the harshness of punishment like converting the rigorous sentence into simple.

Shabnam v. State of UP Classic Case

Shabnam, a postgraduate and holding the post of the government school teacher, along with Saleem, killed all the 7 members of her family including a 10 months-old infant. She was sentenced to death by the Amroha Court which was upheld by Allahabad High Court in 2013 and also the Supreme Court in 2015. While in jail, she gave birth to a child. She filed two mercy petitions citing the reason as for the care of her child, first to the then-governor Ram Naik and then president Pranab Mukherjee but both the petitions were rejected. It was being argued that the convict has the Right to Life under the provisions of Article 21 but the judge dismissed the plea by saying that the family members also had the same rights. The apex court laid down the following observations:

  • The accused must be provided with prior notice and the accused along with its lawyer must be present during the proceedings of the case.
  • The death warrant of the convict must prescribe the exact date and time of the execution instead of a range of dates.
  • There must be a reasonable gap between the date of issuing the warrant and the execution date of the sentence so that the convict gets a reasonable time to seek legal remedies and meet his family. 
  • The convict should be given a copy of the warrant.
  • Legal aid must be given to the convict during these proceedings. 

Mercy Petition: Boon or Bane

Mercy petitions are essentially required everywhere because it is one of those few provisions which ensure the convict a second chance and the right to live which is not only a fundamental right under article 21 of the Indian Constitution but also a human right that cannot be denied. It is acting as a boon in the judicial skeleton. It helps in eliminating the situation where the ignorance of the judiciary results in injustice to the convict leading him to go through trauma and ill-health. In cases where the miscarriage of justice is seen, a mercy petition cures the damage done. Sometimes, it is also said that the mercy plea after crossing several chains lands in the periphery of politics, and recommendations by the ministry are not genuine and the best for the prisoner thereby failing the purpose of the mercy. Time is another crucial aspect in the mercy petition’s disposal. But at the same time, the procedural discrepancies result to delay injustice. This can be seen in the Nirbhaya case where the convicts were hanged after 7 years. So, we can say that the mercy petition acts as both a boon and bane. There is an urgent need to formulate laws specifying the time limit to dispose of with the mercy petitions for quick justice because- “Justice delayed is justice denied”

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Righteous and Sinful Implications of Censorship in Media

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This article is written by Prateek Chandgothia, a 1st-year law student at Rajiv Gandhi National Institute of Law, Punjab. This article discusses the nuasances of censoring media due to the current circumstances prevailing in India.

In this electronic age with breakthroughs being achieved in the IT sector, media has been revolutionized and various modes of transmission of digital contents have been adopted. These include print media, television news channels, YouTube channels of news establishments, original movies, and web series on various OTT platforms like Prime Video, Netflix, etc. Social media has been transformed into another mode of digital content transmission. After the popular Digital India campaign, the Covid-19 pandemic has furthered this online transition of digital content in India. Liberalization of internet service providers and increased access to the internet in the post-jio era has also facilitated this transition. 

This online transition comes with a very substantial question of regulation, which is ‘censorship of media’. A recent event that transpired along the lines of censorship was an Amazon Prime original series named ‘Tandav’ which received backlash concerning one of its scenes which involved the 2 Hindu deities namely Lord Shiva worrying about the increasing popularity of Lord Ram.[ii] FIRs were registered across various states under the charge of hurting the sentiments of a particular community. The interpretation of the particular scene, although subjective, was censored and removed from the aired web series after instances of extreme backlash based on communal lines. Similar instances have been witnessed in cases of Padmavat[iii] and the advertisement of Tanishq jewelry[iv] which led to large-scale backlash based on communal lines. These events have sparked a public debate concerning the ‘censorship of media’.

Based on the above events, one might perceive censorship as a negative concept in contravention of the fundamental right of speech and expression. However, there have been proponents throughout history, who argued in favor of censorship which includes philosophers like Plato and Joel Fienberg. While Plato propagated censorship as a tool to protect children from ‘evil’ influences and to protect society, Fienberg propagated it as a weapon against bigotry. However, the proponents of censorship were not limited to philosophers or historians. The Hon’ble Supreme Court of India has stated that – “Film censorship is necessary because a film motivates thought and action and assures a high degree of attention and retention as compared to the printed word. The combination of act and speech, sight and sound in the semi-darkness of the theatre with the elimination of all distracting ideas will have a strong impact on the minds of the viewers and can affect emotions. Therefore, it has as much potential for evil as it has for good and has an equal potential to instil or cultivate violent or good behaviour. Censorship by prior restraint is, therefore, not only desirable but also necessary.”[v] The Apex Court promotes the concept of welfare censorship to this very day by disallowing the mention/ disclosure of a female plaintiff or petitioner in cases against her parents or family members and thereby, preventing the media houses from airing the name of the female on national television or printing it in newspapers. This kind of censorship is considered to deliver welfare and fair justice by eliminating the factor of risk to the aggrieved person.[vi] Based on such observations, one must conclude that censorship is a necessary evil.

Censorship in India, as a concept, has been in contention since the Independence in 1947. The first-ever censorship law was implemented in 1954 as the Cinematograph Act was enacted which established the Central Board of Film Certification and vested unto the members of the body, the power to eliminate offensive or politically subversive content.[vii] The grounds of censorship have evolved over the years, from Independence to the OTT era. In 1970, in the matter of K. A. Abbas vs Union Of India, the Hon’ble Supreme Court of India ruled that –“Cinematographic films in theatres were the most influential media of mass communication affecting the social mind and, therefore, the exercise of censorship under the Cinematograph Act was valid and necessary”.[viii] The press was brought under the ambit of censorship through the Press Council of India Act, 1978 which established the Press Council of India and gave it the power to receive and act upon the complaints regarding the violation of journalistic ethics or misconduct by a journalist or an editor for that matter.[ix]

The concept of freedom of speech and expression goes hand in hand with censorship. Various instances of misuse of censorship have been recorded throughout history. The sedition law has contributed to this misuse of censorship since independence. In a country like India, custodial harassment has been a major issue wherein waiting for the bail to be granted, can lead to long and unfair jail times which leads to grave violation of human rights. The emergency was implemented by the Indra Gandhi government which was 21 months from 1975-1977. It was one of the most censored eras post-independence[x] as censorship was used as a tool to suppress the voices of dissent. The press freedom was significantly curtailed as the media houses were forced to print and air news in favor of the decisions and policies of the government while refraining from reporting news that was critical of the establishment. Any similarity between a film or writing and the then political circumstances was censored. This included Gulzar’s ‘Andhi’ for its similarity to Indra Gandhi’s life and Amrit Nahta’s ‘Kissaa Kursee Ka’ which displayed political satire.[xi] A similar instance was witnessed in 2020 when Hotstar removed a single episode of the show ‘The Last Week Tonight with John Oliver’ for it being critical of the current Prime Minister of India, Mr. Narendra Modi.[xii] These instances have not been limited to India as the governments around the world have started to regulate the new OTT platforms. An episode of the show, ‘The Patriot Act’ by Hasan Minhaj was taken down by Netflix after it entered controversy for criticizing the crown prince of Saudi Arabi, Mohammed Bin Salman.[xiii] Singapore has also regulated the OTT platforms significantly as it witnessed the pulling down of at least 5 pieces of content from the streaming platforms based on the demands of the government.[xiv] In the present scenario, indirect censorship methods like paid advertisements are being used to influence news reporting and hampering journalism  standards. By way of paid advertisement, the government provides incentives to the media houses to refrain from reporting news that is critical of it.[xv] Thus, similarities can be drawn between censorship being implemented for vested interests during different times throughout history.  

Censorship as a concept must evolve and be implemented while keeping in mind the justified level of freedom of speech and expression. Moreover, it is of utmost importance to eliminate instances of censorship wherein a certain smaller group of people, especially the government exercise their power to unfairly censor a piece of information, movie, or web series to transmit favorable propaganda or suppress the voices of dissent. The type of censorship which fulfills these conditions might be considered as ‘soft’ censorship as it protects the rights and interests of individuals rather than encroaching upon the same. It is, therefore, fairly concluded that in the modern era of constant development in technology, censorship is a necessary concept which when used righteously can promote welfare, peace, and security while when used sinfully, can lead to grave harassment of individuals or groups of individuals.   

References

[i] Thelwell, K. (2020, August 8). How Jio Transformed Internet Access in India. The Borgen Project. https://borgenproject.org/internet-access-india/

[ii] Desk, E. H. T. (2021, January 27). Tandav row: All the controversies that have plagued Saif Ali Khan’s Amazon show. Hindustan Times. https://www.hindustantimes.com/entertainment/web-series/tandav-row-as-supreme-court-refuses-to-grant-protection-here-are-all-the-controversies-surrounding-saif-ali-khan-s-amazon-show-101611755000552.html

[iii] Joshi, N. (2017, November 25). What is the Padmavati row all about? The Hindu. https://www.thehindu.com/news/national/the-lowdown-on-the-padmavati-row/article20915252.ece

[iv] BrandEquity, E. T. (2020, October 29). Tanishq Ad Row: A closer look at the controversy. ETBrandEquity.Com. https://brandequity.economictimes.indiatimes.com/news/advertising/tanishq-ad-row-a-closer-look-at-what-the-controversy/78923587

[v] K. A. Abbas vs The Union Of India & Anr, 1971 AIR 481, 1971 SCR (2) 446

[vi] Jain, M. (2021, May 30). SC Directs Masking Of Identity of Petitioner-Girl Seeking Protection Against Parents In Entire Record, All Reports/ Copies of Proceedings. Live Law. https://www.livelaw.in/top-stories/supreme-court-sc-masking-of-identity-of-petitioner-girl-seeking-protection-174923

[vii] Bhatia, U. (2018, July 14). 100 years of film censorship in India. Mint. https://www.livemint.com/Leisure/j8SzkGgRoXofpxn57F8nZP/100-years-of-film-censorship-in-India.html

[viii] K. A. Abbas vs The Union Of India & Anr, 1971 AIR 481, 1971 SCR (2) 446

[ix] S. (2017, July 7). Regulation of media in India – A brief overview. PRSIndia. https://www.prsindia.org/theprsblog/regulation-media-india-brief-overview

[x] A. (2019, June 25). The darkest phase in Indira’s tenure as PM. The Economic Times. https://economictimes.indiatimes.com/news/politics-and-nation/democracy-interrupted-some-lesser-known-facts-about-emergency-1975-77/the-censorship/slideshow/69940335.cms

[xi] Bhatia, U. (2018, July 14). 100 years of film censorship in India. Mint. https://www.livemint.com/Leisure/j8SzkGgRoXofpxn57F8nZP/100-years-of-film-censorship-in-India.html

[xii] Staff, T. W. (2020, March 9). John Oliver Criticises Hotstar for Censoring His Show’s Episode on Modi. The Wire. https://thewire.in/media/john-oliver-hotstar-censorship-narendra-modi-episode

[xiii]Alexander, J. (2019, January 1). Netflix removes Patriot Act episode in Saudi Arabia following government complaint. The Verge. https://www.theverge.com/2019/1/1/18163918/netflix-patriot-act-hasan-minhaj-saudi-arabia-episode

[xiv] Staff, R. (2019, August 2). Social media sites block satirical rap video in Singapore after government complaint. U.S. https://www.reuters.com/article/us-singapore-socialmedia-idUSKCN1US0K8

[xv] Withnall, A. (2019, July 20). How Modi government uses ad spending to ‘reward or punish’ Indian media. The Independent. https://www.independent.co.uk/news/world/asia/india-modi-government-media-ad-spending-newspapers-press-freedom-a8990451.html

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IJLSI (ISSN 2581-9453) Constitutional Law Article Writing Competition: Prize Worth Rs. 8K, Register by Oct 20

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About IJLSI

International Journal of Legal Science and Innovation [IJLSI] is a referred scholarly peer-reviewed multi-disciplinary International journal bearing ISSN 2581-9453.

International Journal of Legal Science and Innovation intends to be a leader in facilitating a new kind of discussion in various fields of law believing that such engagement is transformative and that it is time for transformation in academia. IJLSI is indexed at prestigious databases, including MANUPATRA.

Themes & Issues

Students can write on any contemporary Constitution Law topic.

Eligibility

Open to all students enrolled in any undergraduate or post-graduate course. Graduate students, awaiting further studies can also participate

Registration Details

Registration amount is Rs. 200 for Single Author and Rs. 300 for Co-authorship.

Co-authorship is allowed to a maximum of 2 authors.

All the participant(s) must submit the fees and fill the registration form here.

Submission Procedure & Deadline

  • The essay must be submitted here by 31st October 2020.
  • Guidelines for Submissions
  • Any political or communal content and/or comment shall be disqualified with immediate effect.
  • All the entries must be typewritten and in not more than 1500 words excluding footnotes.
  • The submission must be made only in *.doc or *.docx format.
  • The submission should strictly follow the following rule
  • Font – Times New Roman
  • Font size – 12
  • Line spacing – 1.5
  • Alignment – justified
  • 20th Edition of Bluebook should be followed for citation.
  • The content should be the original work of the writer and should not have been given to any other competition or for any publication.

Judgment will be based on the following parameters:

  • Content
  • Uniqueness
  • Quality of language

The decisions of the judges will be final and binding.

Prizes

  • 1st Prize: INR 5000 + Merit Certificate
  • 2nd Prize: INR 3000 + Merit Certificate
  • Discounted Publication Opportunity for few Selected Candidates.
  • All participants will get participation certificates.
  • Various Discount Voucher as a prize.

Please Note: There is no provision of hard copy for this particular competition.

Important Dates

  • Deadline for registration: 20th October 2020.
  • Deadline for submission: 31st October 2020.
  • Declaration of the result: 7th November 2020.
  • Issuance of e-certificate: 20th November 2020.

Who shall apply?

  • Law students exploring their interests and trying to give an edge to their writing skills. Want to excel in their interpersonal skills like writing, communication. 
  • Someone who has prior experience of writing an article. 
  • All the law students trying to bring laurels to them. 
  • Knowing and not knowing about the topic doesn’t matter if you are willing to work hard and research a lot about your topic. 

Note: This is just a suggestion from our side to everyone reading. It has been seen that in this hard time, students are panicking and doing everything and anything just to add on to their CV/Resume, even the things that are not going to add so much value to their CV’s.  

Contact Information

For any further queries feel free to email us at editor.ijlsi[at]gmail.com.

Blogs published by Lexpeeps: For understanding purpose:

http://lexpeeps.in/category/our-blog/

                   For the official website link of IJLSI, click here.