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

INTRODUCTION

The word “equity” is originated from the Latin word “acquitas” which means ‘levelling’. Equity is the name that we give to the set of rules that traditionally reinforce the common law where the utilization of the common law would have operated too harshly. This was done to obtain what is consistently referred to as natural justice, or more simply speaking, fairness. A Court of Equity, Equity Court or Chancery Court is a court that’s authorized to practice principles of equity, as against the law, to cases brought before it. These courts began with petitions to the Lord Chancellor in England.

The literal definition of equity is “right as founded on the laws of nature, fairness, justice”. Equity, as defined by some of the jurists, may be quoted as under: –

Aristotle defined equity as the correction of the law where it’s defective on account of its generality. Sir Henry Maine stated that equity is a body of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the civil law by virtue of a superior sanctity inherent in those principles.

Henry Levy Ulman explained equity as a body of rules, the primary source of which, was custom or written law, but the imperative dictates of conscience and which had been set forth and developed within the courts of Chancery. Blackstone quoted equity, in its true and genuine meaning, is the soul and spirit of all law; positive law is construed and natural law is obtained by it. Hence, equity is synonymous with justice, in that, it’s the real and sound interpretation of the rule”.

The essence is to be given more importance than the form of a legal provision and the essence of equity as defined by the maxim is “equity will not suffer a wrong to be without a remedy”.

Origin

Equity is that system of justice which was administered by the High Court of Chancery in England in the exercise of its extraordinary jurisdiction. Every true definition of equity should be, to a greater or less extent, a history.

William II, who became the new ruler of England, brought a varied number of governmental reforms, and as a result, he also rebuilt the legal setup of England. Previously, the legal system of England constituted of county courts administered by the bishop and the county sheriffs, who exercised both criminal jurisdictions as well as civil jurisdiction.

William II also introduced the system of Eyre, where 4 judges, who were appointed by the King, performed their main function which was to analyse the activities of the county courts and hear cases of appeals. This system was utilized as a tool to centralize the control over the local courts, this, it provided a base for the development of common law in England. Although, the dawn of this system came with Henry II ascendance to power. He was considered as the portent of a common law system as he created a system of law, which was common to the whole of England. Some of the features of this system are as follows:

A practice was developed of sending judges from his own court i.e. a central court which was established at Westminster, to places around the country in order to decide the cases which were going on in local courts. These cases were decided by the judges, with the help of the local customs.

These cases were recorded and were filed in Westminster, at the permanent court and as time passed, these decided cases were used as a reference in other cases because of having similar facts. This principle of the law came to be known as precedents.

The local customs became the fundamental source of law as they were referred in trials to decide the points of law. A system of the jury was also developed where decided matters of law based on common law knowledge and local customs. Hence the completion of a centralized system of law with the practice of keeping a record of the decided cases for the purpose of future reference, where customs also played an important role to decide refined points of law together which gave birth to what is called “The common law”.

Equity under the Indian Legal System

In India, the doctrine of equity, which is common law, is still followed even after independence in 1947. Thus, the existing Indian legal system can be said to have a contemporaneous existence i.e. with the advent of the English in India. But as common law is based on the principles of equity, natural justice and good conscience, these principles and rules were embodied in the statute law and have been applied to the provisions made therein. The provisions of equity in Indian statute books might have their source in common law or equity or an adjustment between the two, is immaterial. Statutory recognition of the principles of equity are found in:

1. The Indian Contract Act, 1872

2. The Specific Relief Act, 1877

3. The Indian Trust act, 1882

4. The Transfer of Property Act, 1882

5. The Indian Succession Act, 1925

During the 1600s, when the enterprising English East India company invaded India for setting the trade interests, little did the Indian masses or even future rulers had the idea that they would change the whole face of the foundation of modern Indian society.

This change happened in various ways but the most crucial of those developments was to set up a new type of judicial system, which was initially based on the common law system which was followed in England. As the East India Company took over the territories which were given to them by the Mughals for the purpose of trading, they were acquired with the powers that governed all the people belonging to the English govt. and the company within these territories according to the English common laws given by the Crown.

But as the company won the battle of Plassey in 1757, the Mughal legal system was replaced by the English legal system. In the seventeenth-century admiralty courts were set up in the three presidency towns of the British i.e. Bombay, Madras, Calcutta.

Thus, these courts started to derive jurisdictions directly from the company rather than the crown to decide civil and criminal matters. In the 18th century, through a royal charter, Mayors were established, who derived authority from the crown. This was the very first step in the process of establishment of a uniform legal system in India. A system of appeals to the Privy Council, which is a body of advisors to the crown, from such courts was also initiated.

In the late eighteenth century, the mayor’s court was replaced with a supreme court in the presidency towns. This was the first attempt to form a totally separate and independent judicial system in India which was under the direct authority of the King.

The Chief Justice and subsequent Judges were appointed by the King in the court which had jurisdictions over civil, criminal, admiralty and clerical matters and was used to form rules of practice and procedure. Appeals from such courts were laid down to the Privy Council.

This court was expected to be a court of record and to hold jurisdictions as the court of Kings Bench did in England by the common law of England. And the local civil and criminal justice was left under the “Adalat system”.

Later by the mid-19th century, there was another act i.e. Letter Patents Act of 1862 by the crown, through which the High Courts were established in each of the presidency towns replacing the Supreme Court and were later established in other provinces too. These courts practised the same powers as the Supreme Courts and laid appeals to the Privy Council. The setting up of the Law Commission to review the Indian legal setup directed it to the coding of the laws, like the Indian Penal Code of 1862 which was drafted under the control of T.B Macaulay for the matters regarding crimes. The Evidence Act of 1872 and the Contracts Act of 1872 was anticipated by the same commission. Thus, all these developments helped in the creation of a judicial system in India, which was mostly based on the Common Law system of England.

Conclusion

Equity, in fact, plays an important role in the justice delivery system. In the modern hi-tech society with the digitalization of almost all systems, a computer device would be a nice replacement for a human being from the position of a judge because ‘feed the facts and laws into it and obtain a judgment with all accuracy’ would be a very good idea. But it would never be possible, however developed the digital world may be, for the simple reason that, to decide something, what is required is a mind, and a machine doesn’t have it nor will ever have also. To judge something, it requires conscience and to judge a case, it requires a judicial conscience. No doubt, there are so many things in the name of legal provisions, precedents, rules etc. etc. but what supersedes all is justice, equity and a good conscience which, again, stem from the dictates of conscience and each case is to be decided on its own merits for it is an undeniable cardinal principle of the entire legal system that ‘every case is a new case’

This article has been written by Tanya Gupta, a student pursuing BA LLB from Ideal Institute of Management and Technology and School of Law, affiliated to Guru Gobind Singh Indraprastha University, Delhi. This article focuses on the rule of harmonious construction and landmark cases related to it.

INTRODUCTION

Is it law really plays an important role in society? Every individual living in society must understand the importance of law. Law is that powerful tool which keeps a society peaceful and prevents conflicts between people by regulating their behaviour. The laws are enacted to regulate the society are drafted by Legal Experts and it is well anticipated that laws enacted will not be specific and contain some ambiguity. Judiciary plays an important role to remove and resolving these inconsistencies.

We all are well known aware that there are three wings of the government i.e. legislature, executive and judiciary. The role of interpretation of statues comes into play and is of utmost importance for the Judiciary to render justice correctly by interpreting the statues in the way in which the society demands.

Doctrines are” a rule, principle, theory or tenet of the law”. One of the doctrines is Harmonious Construction it is one of the principles of the interpretation of statutes. They follow the principle of a statute shall be read as a whole and should confirm benefits to the people.

Doctrine of Harmonious Construction

According to Salmond, “by construction is meant, the process by which the court seeks to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed.”

The Constitution of India makes a two-fold distribution of legislative powers:

With respect to the territory;
With respect to the subject matter.

Article 245, Constitution of India is related to the territorial jurisdiction and Art. 246 is related to the subject matter of lawmaking power of Parliament and State Legislature.

The list of legislation- Union list, state list and concurrent list enshrined under schedule 7 of Indian Constitution. The Union Government has an exclusive power to make laws on the subject mentioned in the Union List i.e. of national importance. The State Government has the power to make laws in subjects mentioned in the State List i.e. of local importance and for the subjects mentioned in the Concurrent List both Central and State government has exclusive power. But in the case conflicts arises Central law will prevail.

In a statue, when there are two provisions which are in apparent conflict with each other, they should be interpreted such that effect can be given to both. When there is a conflict between two or more statues or two or more parts of the statue then the doctrine of the harmonious construction needs to be adopted.

According to this rule, a statute should be read as a whole and one provision of the act should be constructed with the reference to other provision in the same Act so as to make a consistent enactment of the whole statue and to remove inconsistency or repugnancy.

It helps to bring harmony between the list referred in Schedule 7, Constitution of India.

In the case when it is impossible for harmonization between statues or between two or more provisions of the statues, then the court’s decision regarding the provision shall prevail.

Landmark Case Laws: Doctrine of Harmonious Construction

Principles of rules of Harmonious Construction: CIT v. HINDUSTAN BULK CARRIERS (2003)3SCC57

In this landmark case, the Apex Court laid down five principles of rule of harmonious construction:

1.Courts must avoid a head-on clash of seemingly contradicting provisions and they must construe the contradictory provisions so as to harmonize them

2. The provision of one section cannot be used to defeat the provision contained in another unless the court, despite all its effort, is unable to find a way to reconcile their differences.

3. When it is impossible to completely reconcile the differences in contradictory provisions, the court must interpret them in such a way so that effect is given both the provisions as much as possible.

4. Courts must also keep in mind that interpretation that reduces one provision to a useless number or dead is not harmonious construction.

5. To harmonize is not to destroy any statutory provision or to render it fruitless.

Raj Krishan v Binod, AIR 1954

In this case, two provisions of Representation of People Act, 1951, which were in apparent conflict were brought before the court. Section 33 (2) says that a government servant can nominate or a second a candidate in the election but section 123(8) says that a government servant cannot assist any candidate in the election except by casting his vote. The Supreme Court observed that both these provisions should be harmoniously interpreted and held that a government servant was entitled to nominate or a second candidate seeking election in State Legislative Assembly.

Venkataramana Devaru v. State of Mysore, AIR 1997 SC1006

In this case, Apex Court applied the doctrine of harmonious construction in resolving a conflict between article 25(2)(b) and Article 26(b) of the Constitution of India and it was held that the right of every religious denomination or any sections thereof to manages its own affairs in matters to religion [art. 25)(b)] is subject to a law made by State providing for social welfare and reform or throwing open of Hindu religious institution of public character to all classes and section of Hindus.

Conclusion

As there are three organs of the government legislature makes the laws; the executive implements the law and judiciary interpret the laws. There are three lists i.e. Union, State and concurrent list. As statues are drafted by legislature there is every possibility of the situation of inconsistency, ambiguity, repugnancy etc. In such situations, the rules of interpretation of statutes come into play and the provisions are construed so as to give maximum effect to them and to render justice to the situation at hand. The principle of harmonious construction plays a very important role in interpreting the statues and is used in an abundance of cases. It is a thumb rule to the interpretation of any statue. The judiciary should interpret the statues properly and rendered justice to the citizens of the country.

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The author i.e. Aviral Shrivastava is a first-year student of the Institute of Law, Nirma University. This article is being written with the view to erase the ambiguity regarding the nature of the constitution and is being illustrated in the simplistic view possible.

INTRODUCTION

India’s constitution has an illustrative history where it is described as a union of states, a Sovereign, Socialist, Secular and Democratic Republic with a parliamentary form of government and this parliamentary form of government which the constitution envisages is considered federal in structure with unitary features. It is the precedent or the foundational law of the country which ordains the fundamental principle on which the government (or the governance) of the country is based. It lays down the framework and principle functions of various organs of the government as well as the modalities of interaction between the government and its citizens.

Sudden discrepancies have aroused with regards to the nature of the constitution in the contemporary scenario where questioning relating to the true federalism is taking place. Though the Indian Constitution is quasi-federal in nature i.e. federal in structure and unitary in spirit but this notion has been slightly attacked when the pillars of federalism have started to vanish where the unitary spirit has overlapped the federal structure and this picture has raised the questions for the existence of federalism in India.

The thought of federalism is first to be surely known as it expresses a sort of government wherein the force is partitioned between the Centre and the corresponding states and which shows polarity or incongruity with a unitary government, where a balance is being implemented between the centre and state to cope up with the federal spirit of the

Solidly, in federalism, there is a two-level of Government with all-around doled out forces and capacities. The Central and the State governments work in coordination successfully keeping up parity and simultaneously acting autonomously. Consequently, this government political structure gives an established arrangement in keeping up solidarity and decent variety.

Federalism In India

While concerning the presence of Federalism, the essential substance which charms its place of presence is the way that federalism requests for the constitution of a country to be Suprema Lexa i.e. where it is considered as the incomparable rule that everyone must follow and its last translation is vested in the hands of an autonomous and solid court which is settled under the Article 131 of the Constitution of India which ensures the matchless quality of the constitution by shielding the balanced division between the centre and the states from the infringement from the unitary governments which is the most fundamental part for keeping up the bureaucratic standard as this pre-eminent power helps in administering the harmony between the centre and the states and along these lines building up an ideal request in the general public and furthermore for this situation the intensity of legal audit should be viewed as which sets up an equalization of forces between the centre and the states in the endeavor to forestall the upsetting of forces by any of the two.

It is well being noticed that the psychology behind federalism is a craving for an association without a unitary structure which is depicted by DICEY speaking to the unity of a state and the separability of its units yet this is no country on the world which totally satisfies the essential precincts of federalism.

It is relevant to take note of that in a nation there ought to be a harmony between the hypothesis and the use of law where the constitution goes about as the hypothesis and the government goes about as the application of law a few nations may have a federal constitution and some may have a federal government and accordingly, it brings a point that to decide the federal quasi-federal and non-bureaucratic nature of the nations it gets basic to watch or observe the federal formal constitution as well as its training is required to be found out.

With regards to India, it is important to note that it isn’t totally federal however having a unitary column installed in it where the conspicuousness has been given to the Union Governments and the division between the central governments and the states governments is appropriately adjusted by the text of the constitution where the constitutional provisions in India on the subject of the distribution of legislative powers regarding the matter of conveyance of federal powers between the Union and the States which are characterized under a few articles; the most significant being explicitly under articles 245 & 246 of the Constitution of India.^[1] The Seventh Schedule to the Constitution of India characterizes and indicates the portion of forces and capacities between Union and States. It contains three lists; i.e. 1) Union List, 2) State List and 3) Concurrent List.^[2]

Another fact which should be referenced is that due to these provisions the central government just as the state governments go about as free and juridical character which is corporate in nature and are given entire forces as for administration and legislation as indicated under the constitution where Article 245(i) comes to the scene which expresses that the Parliament can “make laws for the entire or any piece of the domain of India” and the state councils may correspondingly “make laws for the whole or any part of the territory of the State”,^[3] where the union is given powers under the Union List, states under the state list and thirdly Concurrent list where the centre and the states both are given the simultaneous jurisdiction and thus our nation follows the substance of federal principle with respect to the division of forces.

Another fundamental attribute to be noted here is that neither the centre nor the states have the ability to change or alter the provisions relating the union and the state’s division i.e. unless a particular majority is the available amendment couldn’t be validated just when as determined under Art. 368 of the Constitution of India in regards to the Amendment methodology where two-third of the majority has been proposed by the procedure for the ratification.

Where in instances of serious issues in the states if the country as in India has the provision to coordinate in such a circumstance by the method of interstate disputes resolution rather the Centre surpassing the constrained powers of the state yet by the interstate coordination and participation where the balance between the centre and the states are directed by shared acknowledgement or mutual recognition where under the Articles 261, 262 and 263 an Interstate committee has been set up concerning build-up common collaboration i.e. mutual cooperation and to support solidarity and decent variety and cop up with a significant prerequisite of a federal Constitution.

Reasons behind ambiguity in the federal structure

Seeing the fundamental federal feature of our constitution something else is likewise being noted in the present contemporary situation which as political improvements rotates around the Citizenship Amendment Act and the National Register of Citizens (NRC) have outlined a portion of the significant breaks in the federalism include where the forces and the privileges of the states are at risk.

With the introduction of outdated and unconstitutional rules, this principle has been abused as banning the collective assembly of more than four people shutting down the Internet in five states monitoring the students’ and young people’s social media activity; the incarceration of minors and the attacks on students and the young people damaging libraries in colleges have created a modern notion of the constitution in which certain obligations and unjust rules are imposed on states that have seriously eroded the federal pillar as this new image has shaken the equilibrium between the centre and its relationship between the state and which has not been officiated now and this has strongly been in derogation with Art. 245 and Art. 246.

Penal sanctions are also placed if the States are unable to comply with the Union’s clear and effective guidelines pursuant to Articles 256,257,353 and 360, which also contain emergency provisions, and if there is a violation on the part of the states, there are certain punishments which are formulated and these laws put greater weight on the side of the central government as compared with the states.

This causes a tussle between the state and the centre as could be illustrated as a fight between the Delhi Government and the Union governments where the federal structure could be well questioned as to the powers of the union government oversides or offsets the powers of the Delhi Government. And this violation of constitutional rights and values has also troubled the federal spirit where the independence of the states is not respected and is in contravention of the text of the constitution.

The law is also null and void by observing Article 13(2) which states that the State shall not make any law which removes or abbreviates any of the rights guaranteed under Part III of the Constitution, and to the extent of such contravention.^[4] It is well being noted that such a provision is not being gratified in the present scenario where the nature of the constitution is somewhat moulded so as to have a solid unitary structure but that is not giving the same independent powers to the state thus affecting the federal pillar of our democracy. Another important point to note is that Federalism specifies the point of equal status that substantiates the equal opportunities for the states as well as the centre, imbibing the legal and corporate status without any kind of the inequality present in them. Indians were once in many scholarly editions described as Homo Hierarchicus, a species of human who most intensely practised inequality,^[5] where there should be equality if not absolute but atleast there should be a balance in the powers between the centre and the state.

But observing the contemporary scenario seeing the new ruling government there is a clear observation that the laws made by the centre clearly support themselves rather than the state itself where the laws like CAA, NRC and NPR are without proper observance of the rights of the people.

Conclusion

It would be rightly concluded that the federal nature in our country is only present theoretically in our constitution and practically this is not followed by the governments because our unitary sphere is taking the larger part of the legislations in many sectors and thus causes the state to become dependent on the centre which snatches away their independence. It is also correctly stated that “our constitution will be both unitary and federal according to time and circumstances” and it, therefore, should be properly emphasised that, while the essence of the constitution is declared to be federal and unitary i.e. it is in fact quasi-federal which could also be substantiated as federal in structure and unitary in spirit.

Though it is being affirmed that the nature of the constitution is quasi-federal i.e. partly federal in nature but in the contemporary scenario it is pertinent to note that the federal pillar of our democracy is being shaken where the states’ rights are not being respected and they are trapped in a web of centres flawed laws which are in derogation with many of the human rights of an individual and the centre is playing a tyrannical role where the state’s recognition is not respected.

In the current pandemic situation, only a federal democracy could be able to cope up with such a situation as the proper relationship and a proper balance between the Centre and state relations is a very essential feature which needs to be noted as when such balance exists it definitely helps to make the implementation of such rules by the subjects of the state i.e. the citizens more suitable and apt.

^[1] SEVENTH SCHEDULE TO THE CONSTITUTION OF INDIA, WIKIPEDIA.

^[2] “SEVENTH SCHEDULE”. www.constitution.org.

^[3] India Const. art. 245 cl. 1.

^[4] India Const. art. 13 cl. 2.

^[5] The Guardian view on India at 70: democracy in action.

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This post is written by Anushree Tadge, a 3rd-year law student of ILS Law College, Pune, explaining the topic considered to be a taboo but still dealt with, through legislations- Cyber Pornography.

Introduction

Cyber Pornography is a global problem now. The government has been taking crucial steps to ban websites possessing pornographic content following the Courts. However, people have found ways and means like VPN, DNS Server Change, downloading search engines with inbuilt VPN activation, to continue watching cyberporn. Now, this becomes a very controversial issue because can there be any decision as to if a person should be punished for watching such content? Or are the service providers to be held responsible for possessing pornographic content? Are the laws stringent enough to regulate cyberporn?

Meaning of ‘Pornography’

‘Pornography’ is a Greek origin word, this can be divided into two “Porne” meaning prostitute and “graphos” meaning description. Pornographic content includes any video, pictures or other media that generally contain sexually loud acts considered to be indecent by the public.

The term pornography is used for the publication of the act instead of the act itself, and therefore, this does not cover the ambit of sex shows or striptease. People all over the world have been debating over whether pornographic content is just an artistic expression of the human body and sex as an act or is it an immoral act hurting people’s religious sentiments.

Concept of pornography has never been so broad as it is at this point of time. Pornography as a topic now been divided into softcore and hardcore pornography. The point of difference between the two being the depiction of penetration.

Cyber Pornography as a term means the publication, distribution and designing of pornographic content by using the medium of cyberspace. It is a product of the advancement of technology. Since the Internet has become so easily available in the modern times, people can view different porn on their devices, and even upload such content online.

Cyber Pornography

Internet covers pornography as much as 30 per cent of its total content. But the catch here is only 10% of this content is on the web, rest can be found on dark work and the deep web. According to the statistics of the year 2005, there were almost 2 billion searches for porn, the revenue generated through this industry is also quite a lot, it is the fastest growing industry and is estimated to generate approximately $60 billion in the year 2007. The U.S stands as a first ranker in the entire pornography industry. Almost $12 billion of the U.S revenue is spent on porn followed by the country, Australia, which extracts a total of $1.5 billion revenue from the industry. The easy availability to the Internet has helped a lot of people to view pornographic content even without any hindrance to their privacy and without even disclosing their identity to the site developers.

Legal Aspect

Various legislations are enacted so as to regulate Cyber pornography in our country, India, this includes the Information Technology Act of 2000, the Indian Penal Code, the Indecent Representation of Women’s Act and Young Person’s (Harmful Publication) Act. These are explained briefly below-

Information Technology Act, 2000

Cyber Pornography is not legitimised or even banned under the IT Act of 2000.

The IT Act restricts the production and even distribution of cyber pornography but it does not prohibit the viewers to view or download any pornographic content excluding child pornography.
Section 67 of the IT Act, 2000 makes the below listed acts punishable, the punishment being imprisonment for a term of three years and fine up to Rs. 5 lakhs

Publication, Transmission, Causing to be published or transmitted

The Intermediary Guidelines provided under the Information Technology Act put the burden on the Intermediary or the Service Provider to exercise accurate due diligence so as to ensure that their portal/ site is not being misused.

So, viewing Cyber pornography is legitimised in India as merely downloading and viewing of content does not lead to an offence. Although publication of such content online is illegal storing the same is not an offence but again, transmitting such cyber pornography via messaging, emails or any other kinds of digital transmission is an offence.

According to Section 67 (B) of the IT Act, 2000, any individual not attained the legal age- 18 years is a child. Child pornography is illegal and below listed acts are considered as an offence-

Publication or transmission of any material through electronic means that depict children engaged in a sexually explicit act or similar conduct.
Depiction of children in an obscene act or similar in a sexually explicit manner.
Normalising and encouraging child abuse online.

Although exceptions like media for religious education, for the study of sexology or even if a photograph of a child is utilised so as to explain the anatomy of a child won’t be considered as an offence.

Indian Penal Code, 1860

Section 292 of the Indian Penal Code, 1860 prohibits the sale of any obscene material or any sexually explicit content.

Section 292(1) states the meaning of “obscenity” and also states that any content will be deemed as obscene in case it is lascivious or as prurient or even if any part of such content has the intention to probably corrupt people.

Whereas Section 292(2) briefly explains what will be the punishment for sale, distribution, such materials. This would be applicable to any person who sells, distributes, hires, exhibits publicly or puts any obscene material into circulation. This will also cover the imports or exports of such obscene material. A person involved in receiving profits or advertising content from any such business shall also be held responsible. Offers to do or attempts to do any act which is prohibited under the section.

On the first conviction, a person may face rigorous imprisonment that may be up to 2 years and a fine up to ₹2,000.
On the second conviction of such person, he/ she shall be awarded imprisonment for 5 years along with a fine that may extend to ₹5,000.

Section 293 of the Indian Penal Code, 1860, provides for the punishment of a person who is involved in selling, hiring or distributing any obscene material to any other person who is of age below 20 years.

On the first conviction, a person shall be imprisoned for 3 years along with the fine up to ₹5,000, and
On the subsequent second conviction, imprisonment may extend to 7 years with a fine up to ₹5,000.

Indecent Representation of Women’s Act, 1986

Indecent Representation of Women’s Act, 1986 is a legislation which seeks to prohibit the representation of any women or any of her body part in an indecent manner such that any such representation will hurt the public morality on grounds like indecency, hurting of religious sentiments etc.

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

The latest and very popular ‘POCSO Act’ also regulates cyber pornography effectively. Actually, The POCSO Act, 2012 was specially enacted so as to prevent children from any kind of sexual offences. But the act also protects children from crimes such as sexual assault, sexual harassment, and child pornography. This act aims and works so as to protect the interests and well-being of minor children. The Act is gender-neutral and considers any individual below 18 years to be protected as a ‘child’ under this legislation. The provisions relating to ‘Cyber Pornography’ listed under the POCSO Act are explained below:

Section 13 of the POCSO (The Protection of Children from Sexual Offences) Act, 2012, defines the offence of ‘child pornography’, and explains it as whosoever, uses any child in any type/kind/ form of media for purposes of sexual gratification shall be considered as guilty of the offence of child pornography. Also, Section 14 of the same, POCSO Act, 2012, states the punishment for a person guilty of using any child for pornographic purposes.

Punishment for using a child for pornographic purposes in both POCSO Act, 2012 and the bill of 2018 is listed under-

Offence related to	Punishment under POCSO, 2012	Punishment under the 2018 Bill
Child Pornography	Maximum – 5 Years	Minimum – 5 Years
Child Pornography with sexual assault, penetrative, etc	Minimum – 10 Years; Maximum – Life	Same as Act
Child Pornography with extreme and harsh penetrative and sexual assault	Only Life Imprisonment	Minimum – 20 Years; Maximum – Life Imprisonment, Death Penalty
Child Pornography with other sexual assaults	Minimum – 6 Years; Maximum – 8 Years	Minimum – 3 Years; Maximum – 5 Years
Child Pornography with extreme sexual assaults other than above mentioned	Minimum – 6 Years; Maximum – 10 Years	Minimum – 5 Years; Maximum – 7 Years

According to Section 15 of the POCSO (The Protection of Children from Sexual Offences) Act, 2012, provides punishment for a person involved in storing pornography that involves a child, in any kind of form, in that case, he shall be awarded imprisonment up to a period of 3 years or fine or with both.

Conclusion

The regulations in India for cyber pornography are mediocrely stringent and readers should understand that such punishments are fine as ‘porn’ is still a very controversial topic, the most effective and safe method to curb such menace of cyber pornography and the other vices on the Internet is an attempt by the state so as to achieve social maturity by making people aware through education and even after so we live in a state where individual’s choice cannot be controlled, as to what a person wishes to see. Although child pornography resulting in sexual assaults is serious and cannot be neglected no matter what. Parents should be friendly and educate their children the same, that will be the best for under-aged kids curiosity to watch such content.

References

https://www.psychologytoday.com/us/blog/all-about-sex/201611/dueling-statistics-how-much-the-internet-is-porn.
https://pdfs.semanticscholar.org/d5ac/9d42834942df20b7224d4c45831cd487ce91.pdf
https://indiankanoon.org/doc/1318767/
https://www.itlaw.in/section-67b-punishment-for-publishing-or-transmitting-of-material-depicting-children-in-sexually-explicit-act-etc-in-electronic-form/
https://indiankanoon.org/doc/776798/
https://indiankanoon.org/doc/776798/
https://www.advocatekhoj.com/library/bareacts/childrenprotection/13.php?Title=Protection%20of%20Children%20from%20Sexual%20Offences%20Act,%202012&STitle=Use%20of%20child%20for%20pornographic%20purposes
The Protection of Children from Sexual Offences (Amendment) Bill, 2019; The Protection of Children from Sexual Offences Act, 2012: PRS
https://www.advocatekhoj.com/library/bareacts/childrenprotection/15.php?Title=Protection%20of%20Children%20from%20Sexual%20Offences%20Act,%202012&STitle=Punishment%20for%20storage%20of%20pornographic%20material%20involving%20child

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Nikhilesh Koundinya is a student of Symbiosis Law School, Pune. In this article, he has discussed the legal basis for a lockdown. He has examined the Epidemic Diseases Act and the Disaster Management Act at length with regards to the topic. To conclude he has looked at the factors to be improved so that we can better prepare for the next pandemic.

INTRODUCTION

“Unprecedented events call for unprecedented moves”. This statement has been the entire basis of the lockdown which began on 24^th March 2020 and is still continuing. The lockdown began as an initiative to counteract the Corona Virus which was named as a global pandemic by the World Health Organization (WHO). Before the lockdown, the prime minister imposed a Janta curfew on the country where people were restricted from coming out of their homes and which gave a flavour of how the next few months will turn out to be. In this article, we are going to be examining the legality of imposing a lockdown. An interesting fact about the lockdown was that after about a century the Epidemic Diseases Act was initiated to counteract the virus and provide steps to be taken by the government to impose the lockdown. Another act that played a key role was the Disaster Management Act (DMA) of 2005.

USE OF THE DISASTER MANAGEMENT ACT (DMA), 2005

The DMA 2005 defines a disaster as:

a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.

According to this definition natural disasters such as earthquakes or tsunamis are included but instances such as epidemics or a virus breakthrough aren’t. This essentially means that the state couldn’t have imposed a lockdown under this definition. But the state classified the epidemic as a notified disaster which opens up the opportunity to classify it as a disaster and also provide assistance to the victims and states under the State Disaster Response Fund (SDRF).

After announcing the lockdown, the government provided states with an action plan of how the lockdown would play out. This was done by the government pursuant to section 10 of the DMA which reads:

The National Executive Committee shall assist the National Authority in the discharge of its functions and have the responsibility for implementing the policies and plans of the National Authority and ensure the compliance of directions issued by the Central Government for the purpose of disaster management in the country. The section also provides for the steps to be taken by the central government to handle the situation which are as follows:

Act as the central agency for making disaster management pans and ensuring execution.
Inform different ministries of the plan ahead
Monitor the implementation of the plans etc.

There are many more initiatives and the authority responsible for executing these actions is the National Executive Committee which will be headed by the secretary to the government of India who has administrative control over the disaster management branch. This will also include officers from different ministries of the government including water, sanitation etc. who are going to be affected during the time of a disaster. The plan of action on how the executive committee will function and their powers and responsibilities will be dictated by the central government.

EPIDEMIC DISEASES ACT, 1897

In a situation where there is no explicit law in place, the diseases act made the lockdown legal as per section 2-A of the said act. Section 2-A of the act reads:

When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in the territories to which this Act extends and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.

Thus, the use of this act was extremely important with regards to the lockdown because as per this section there are two ingredients to be fulfilled

When the central government is satisfied that India is affected by an epidemic or a disease which cannot be controlled or which is spreading at a rapid pace. This was well satisfied as the Corona cases slowly started climbing in the middle of February.
There was no law or provision in place to handle such a situation because the last epidemic of this scale had occurred a century ago which was popularly known as the Spanish flu.

Hence with these two provisions being fulfilled the Epidemic Diseases Act, 1897 was used to impose the lockdown.

CONSTITUTIONAL PERSPECTIVE

There were many lawyers and jurists who pointed out that the term “Lockdown” has nowhere been defined under the Indian Law. Though there was no provision which defined this term the government was using the term as a means to restrict people’s freedom under article 19(1) of the constitution. But as seen above the imposition of the lockdown was under section 2-A of the diseases act which means there was a statutory basis for imposing the lockdown.

PROBLEMS WITH LAW REVOLVING AROUND EPIDEMICS AND DISEASES

The fundamental problem attached to any health emergency in the country is that the term “national calamity” has not been defined anywhere in any provision. There were efforts made by the government in 2001 to come up with a definition and insert it as a statutory provision but the committee responsible could not arrive at a decision. There is a growing need for this definition as it has been requested by the states a number of times. In fact, in 2013 when the Uttarakhand floods occurred the state government requested for enabling the provision. Another request was made in 2018 when the Kerala floods took place and the politicians in the government asked for the definition. Now the need has again risen for a definition and this should be the foremost objective of the government once the epidemic is resolved.

Another aspect is to revamp laws that were made more than a century/decade ago. The Epidemic diseases act and the Disaster Management Act need some categorization of a national fund. They also need to take into consideration new steps to be performed once there is a virus outbreak. There needs to be specific laws in place to administer medical treatment on patients and to provide medical aid in the times of a crisis.

“If all these steps are followed, we are looking at a situation where the world will live to see another day.”

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This article is written by Anurag Maharaj, student of law at Lloyd Law School, Greater Noida. He has tried to define the sources and framing of the Indian Constitution in this article.

INTRODUCTION

Constitution is the system of basic principles which governs a country, state, company, or the like. It is the backbone of our country’s democracy. Indian Constitution is the longest written constitution in the world containing 395 Articles, 22 Parts and 12 Schedules. India’s constitution was drawn up by a Representative Assembly. The Assembly, under the chairmanship of Dr. B.R.Ambedkar, formed a drafting committee to create a constitution for India. The first meeting of the Assembly was on 9 December 1946. On 26 November 1949, the Indian Constitution was adopted and came into force on 26 January 1950.

After ransacking all the world’s major constitutions, the Indian Constitution was formed. The sources of the Indian Constitution are:-

1. United States of America

● Impeachment of president:- Article 61 of the Constitution calls for the President of India to be impeached. The President may be disqualified from office for breach of the Constitution by impeachment. Impeachment proceedings may be levied at any Parliament house.

● Removal of judges:- Article 124(4) of the Constitution allows the President to remove a judge for proven misconduct or incapacity if the parliament approves a majority of the total membership of each house for impeachment and not less than two-thirds of the members of each house present.

● Fundamental Rights: Articles 12 to 32 of the Constitution of India include all the fundamental rights:- Basic rights are the fundamental human rights given to the country’s people in order to ensure them of an equal place in society.

● Judicial independence:- The idea of judicial independence is that the judiciary should be separate from other government branches.

● Preamble:– The Preamble is an introduction to the Constitution. It guarantees justice, freedom, equality for all Indian citizens, and fosters fraternity among the people.

● Judicial Review: The Judicial Review provision gives the judiciary an upper hand in interpreting the Constitution. Therefore, the judiciary can annul any order by the legislature or executive if that order conflicts with the country’s constitution

● Functions of president and Vice president:- The President of India, is the head of state of and the commander-in-chief of the Indian Armed Forces.

● Article 63 of the Indian Constitution states that “There shall be a Vice President of India.” The Vice President shall serve as President in the absence of a President by reason of death, resignation, impeachment or other circumstances. India’s vice president is now ex officio secretary of Rajya Sabha.

2. The United Kingdom

● Single citizenship:- India’s constitution grants the country’s residents single citizenship. The residents of the country are all citizens regardless of the states or territories in which they live.

● Legislative procedure:– Legislative proposals shall be brought in the form of a bill before either Parliament House of India. A bill is the draft legislative legislation that, when passed by both parliamentary houses and approved by the President, becomes a parliamentary act.

● Rule of Law: This essentially states that a State is governed by the laws of that country, not by the representatives or the citizens and it states that everybody is equal before the law; including the ones who make it. Article 14 of the Constitution of India codifies the rule of law

● Cabinet system:- A group of persons appointed by a head of state or a prime minister to head the government’s executive departments and serve as official advisers.

● Parliamentary form of government:- The President is the head of state, and the head of government is the Prime Minister. In such a form of government, a cabinet of ministers, headed by the Prime Minister, governs the country. The Parliament consists of two houses – Lok Sabha and Rajya Sabha.

3. IRAN

● Directive Principle of State Policy:- The Directive Principle of State Policy is stated in Part IV of the Indian Constitution, and it explicitly states that it is the State’s responsibility to follow certain principles in the law-making process. There are three major types of these concepts – Democratic Guidelines, Gandhian Guidelines and Liberal Intellectual Guidelines. Ireland is also borrowing the process for appointing members to the Rajya Sabha

● The method of the election of the head of the state i.e the President

4. Australia

● Article 108:- The joint sitting of both the houses in some cases.

● Concurrent list:- It includes the power to be considered by both the union and state government.

● Freedom of trade and commerce:– Trade and commerce freedom within the nation and between States. Sections 301 to 307 of the Indian Constitution set down the same provisions

5. France:- The Indian preamble borrowed from the French Constitution its principles of liberty, equality and fraternity. In the tradition of France’s Constitution, the Indian state came to be known as the ‘Republic of India.’

6. Canada

● Federal system with a strong central government.

● Power-sharing between the central government and state governments

● The advisory jurisdiction of the Supreme Court

● Appointment of State governors by the Centre

7. Soviet Union (USSR)

● A Constitutionally appointed Planning Commission to supervise the economic growth.

● The Fundamental Duty, given in Article 51 A(g):- Mentions the duty of the citizen to protect the environment.

8. South Africa :- Gave us the provisions of the amendment process and the election of Members of Rajya Sabha

9. Germany:- Gave us an immediate clause for the suspension of the fundamental rights.

10. Russia:- Idea of Social, Economic, and Political Justice in Preamble.

11.Government of India Act 1935

● Federal Legislature: The act stated that there should be two houses of the legislature, i.e. the Council of States and a Federal Assembly

● Provincial Autonomy:- Federal Legislature: The act stated that there should be two houses of the legislature, i.e. the Council of States and a Federal Assembly

Framing of the Constitution

India’s Constitution was adopted by a Constituent Assembly formed under the 1946 Cabinet Mission Plan. The Constituent Assembly formed 13 commissions to frame the Constitution. A draft Constitution was drafted by a seven-member drafting committee under the chairmanship of Dr B R Ambedkar on the basis of the reports from these committees. In January 1948, the drafting Constitution was released and citizens were given eight months. After the citizens, the press, the provincial assemblies and the Constituent Assembly had debated the draft in the light of the suggestions received, the same was finally adopted on November 26, 1949, and signed by the President of the Assembly. Thus it took 2 years, 11 months and 18 days for the Constituent Assembly to complete the task. And as I have discussed above the Indian Constitution is borrowed Constitution. The legislative system, common citizenship, rule of law, Directive state policy etc. all are borrowed features of the Indian Constitution. The Constitution of India incorporated the best features of a number of existing constitutions.

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Mansi Tyagi, is a student of Symbiosis Law School, Pune. In this article, she has discussed the rules and principles concerning the Delegated Legislation in India. Also, she has tried explaining the major issues with the same that needs to be tackled. And in conclusion, she has tried putting forth the contemporary situation regarding a valid delegated legislation.

What is Delegated Legislation?

Legislation, the law-making process, can be either supreme or subordinate. While supreme legislation is the one that flows directly through the sovereign; subordinate legislation includes every other organ as its maker other than the sovereign power. On one hand, as the name suggests, supreme legislation cannot be annulled or controlled by any other lawmaking authority, which is not the case with the subordinate legislation.

To get a simpler idea, the parliament in India is a supreme legislative body, while any other authority making law will be considered a subordinate source of legislation. Delegated legislation is one such important and emerging example of subordinate legislation.

What exactly means by the term ‘Delegated Legislation’?

Black’s Law Dictionary defines ‘Delegation’ as “the act of entrusting another with authority or empowering another to act as an agent or representative”.

Thus, Delegated Legislation comes down to how the Legislative authority entrust other departments of the government itself to make law instead. Also known as Executive Legislation, Delegated legislation refers to where, unlike its usual function of executing’ the law, the executive branch makes laws. A law made by a delegated authority is the same as an act passed by the parliament. Since time immemorial, there have been several reasons for the evolution of such a kind of legislation.

The concept of a Welfare state has multiplied the functions of a government, including those of lawmaking. The surging need for law has made the process way too lengthy for the lawmakers to do alone. And that’s where Delegated legislation came into existence. Not just it shared the burden of law-making subject matters, but also gave the legislative to elaborate and discuss on more delicate and critical issues.

Is it prospective or Retrospective?

One of the earlier issues regarding Delegated Legislation that was posed before the judicial authorities was whether it stood a prospective or a retrospective effect. However, instead of handling situations factually, the Hon’ble Supreme Court of India went ahead to lay down principles regarding the effects of such delegated legislation in the case of Federation of Indian Mineral Industries and Ors. v. Union of India and Ors. It laid down three basic principles concerning the subject:

(i) In the case of Hukum Chand v. Union of India, the first principle was laid down which stated that only if there was any express or implied authority from the parent statute, the delegating authority, i.e. Central Government or the State Government can make such delegated legislation into retrospective nature.
(ii) The 2nd principle was laid down in case of Panchi Devi v. State of Rajasthan where it was stated that originally a delegated legislation is always prospective in nature and thus no right or liability emerging out of it can have a retrospective effect.
(iii) Finally, in case of State of Rajasthan v. Basant Agrotech Ltd, It was held as the third principle that as far as the delegated law was regarded as a fiscal statute, a tax or fee could not be levied unto people in absence of an express provision. Only on the pretext that a delegated authority made the law, the imposition of fiscal duty cannot be made ipso facto.

What controls it?

The main purpose of a delegated legislation is to supplement and not to supplant the law. However, such legislation has its own inevitable evils. To safeguard such laws, there are certain ways through which delegated legislation can be controlled. These ways of control are divided into two, direct and indirect. While direct controlling includes control and supervision of Parliament; the indirect control includes the judicial control and review process. One hand the parliament always has the general control to alter any bill before its made into law. Also, after such laws are made by some other authority, the parliament always has the power to amend or repeal such law if it does not serve the purpose why the delegation was made in the first place.

On the other hand, the judiciary has the power to declare any law void that goes against the law of natural justice and good conscience. Also, the delegated law which is ultra vires in nature can be held repugnant by the judiciary without being able to annul or amend it. There are other indirect controls over a delegated legislation as well. This includes giving the delegation to a trustworthy authority to avoid any defect; publicize the law effectively to get a vigilant public opinion to avoid any arbitrariness, and; taking experts’ opinions on such laws to avoid any ‘blanket’ or vague legislation.

Benefits

After understanding the controls over delegated legislation, now we move on to another important question. ‘Why Delegated Legislation?‘

The contemporary societal needs have made the law-making procedure too complicated for any ordinary person. While it is a delicate issue at hand, there are certain benefits that make delegation the best possible way of making supplementary laws. Here are the reasons why delegated legislation works in India more efficiently:

Time-Saving – In a large democracy like India, the legislature is always burdened at the first instance. By enabling delegation to the executive to make subordinate law saves time for the parliament to instead work on more complicated issues.
Access to special expertise – In most of the cases, the members of parliament are unconnected to the fields they are making laws in, and it is possible for them to make bills defective at their outset. Delegation to departments having an expertise in the required field thus not only saves time on unnecessary defects but also makes the process faster since the time given for drafting bills is anyways inadequate.
Flexibility to law – In no case can the lawmakers anticipate the future contingencies that may arise and challenge the law which is in making. Delegating the law-making power to the department concerned can help to add details that might help in avoiding such unforeseen contingencies. Thus, such delegations allow ample scope to amend through swift actions in cases of emergency owing to its gap-filling details to the changing needs of the society.

Disadvantages

Despite the benefits like reducing workload and adding expert details, delegated legislation poses certain threats to the supreme authority of legislation that even the controls are inadequate to handle. Some of them include:

Legality – The most basic criticism that this legislative kind receives is its lack of legality. Firstly, the laws are supposed to be made by the people democratically elected. However, in such legislations, the laws are instead made by people not directly elected to the House of Commons, thereby contrasting the democratic setup of the state. Secondly, this, in turn, allows for expropriation of the legislative by the execution, thereby challenging the doctrine of separation of powers.

Accountability – In normal circumstances, the legislative is answerable for the defects and lacunas in the laws made. However, when laws are made by unelected delegators, the accountability drops down to a specific ministry, thereby eroding the constitutional role of the parliament. Also, in the process, it unveils the inability of the parliament to check upon the law owing to its lack of expertise on the concerned law.

Inadequate Publicity – A lawmaker is required to publicize the law to the general public in order to fulfil the principles of natural justice and good conscience. However, the problem with delegated legislation is that there is no mandate to make enough arrangements for its publicity for the general public. Also, even if the arrangements are made, the words used by the concerned authorities are too complex to be deciphered by the common public. This, in turn, is a major drawback for states where ignorance of the law is not an excuse.

Inadequate Control – Despite such delegation being authorized by the legislation itself, the control over it is lacking the expected vigilance. Neither the legislative have the time nor the expertise to keep a check on such laws. In the first place, such delegated legislations have to be laid down before the parliament for an informed approval. However, one of the major limitations to such delegation is there is no adequate control to ensure that the delegated legislation is closely surveilled upon, thereby checking upon the administrative authority making it. In other words, there is a lack of parliamentary check and control over the delegated legislation which in turn makes the executive wing creating it go uncontrolled.

To curb these demerits, prima facie the authority should be given to a trustworthy subordinate department and nothing less than that. At the time of sanctioning of such law, the delegating authority shall be consulted. Also, the publicity of such law should be unprecedentedly made on a more alarming scale allowing the public to give their feedback which can further be used to amend or revoke such law. Prior to its coming into force, all such laws should be completely checked and discussed upon by the legislative. In case, the law avoids such deliberate discussion, the judicial review and supervision control will thereby minimize any chance of them being defective.

What cannot be delegated?

While many rules, regulations or by-laws in India are a product of delegated legislation, there is still a circumference of scope within which only such delegation can be made. Not everything and anything can be delegated to the executive.

In the case of Delhi Laws Act, 1912, In re v. Part ‘C’ States Act, 1950, It was held that the parliament cannot delegate what construes ‘essential legislative features’ which basically means deciding upon the legislative policy and then converting it into binding regulations. Therefore, what can be delegated is only what comprises the ‘non-essential’ functions of the legislative. Also, it held that since India followed the English model of parliament, which thus made the executive accountable to the legislative, and thus the separation of powers didn’t exist in India. This in turn validated the principle of delegated legislation.

In the case of Ajoy Kumar Banerjee v. Union of India, The principle of Delegated legislation was laid down as, “This principle which has been well-established is that the legislature must lay down the guidelines, the principles of policy for the authority to whom power to make subordinate legislation is entrusted.” The most enchanting problem that the delegation of legislative powers faces is its validity. In the most controversial and infamous case of Delhi Laws Act, 1912, In re v. Part ‘C’ States Act, 1950, the three tests for a valid delegated legislation were laid down:

It must be a delegation in respect of a subject or matter which is within the scope of the legislative power of the body making the delegation.
Such power of delegation is not negated by the instrument by which the legislative body is created or established.
It does not create another legislative body having the same powers and to discharge the same functions which it itself has, if the creation of such a body is prohibited by the instrument which establishes the legislative body itself.

Only if these tests are passed by the delegation, will the delegation be valid.

It was in this case that the ‘Doctrine of Abdication’ was propounded by the judiciary.
It held that the parliament cannot completely abdicate itself by creating a parallel authority and can only delegate ancillary functions. Instead, it has to make sure that the executive only works as a subordinate authority and does not become a parallel to the legislative. Thus, when the delegated law is ultra vires, it ipso facto means that the legislature has abdicated its ‘essential’ functions.
The Court was also of the view that being a subordinate, its existence was subject to the legislature’s authority conferred upon it, and thus the legislative can dysfunction the same whenever it desires. Also, no delegated legislation can be held unconstitutional or repugnant only on the pretext that it was not made by the legislative but other authority authorized by it. Thus, even though politically it seems to elude the electorates’ trust, the delegated legislation does not become constitutionally invalid.

Conclusion

Sir Cecil Carr remarks, “The legislature provides the gun and prescribes the target, but leaves to the executive the take of pressing the trigger”. Delegated Legislation permits the executive to pass the law rather than the parliament. It is often argued that India follows the principle of ‘delegatus non-potest delegare’ meaning that there is a prohibition on delegation of power by the parliament since it is the one who itself has the delegation work from the supreme law to make laws for the state.

However, in the In re Delhi Laws Act case, the court took the view that delegation was a part of legislative functions, and since India doesn’t follow the stricter form of Separation of powers, this principle of ‘delegatus non-potest delegare’ does not apply in India. Thus, delegated legislation is a valid legislation unless limited by the guidelines lay down by the Hon’ble Supreme Court of India in the form of the three tests. As for the demerits such legislation poses, Dr. C.T. Carr has already suggested that the safeguards have to be exercised against the otherwise inevitable evils of the delegated legislation.

Delegated Legislation, if handled carefully, is a boon for any welfare state. Its features of being made by an expert ministry and having detailed technicalities, makes it a better version for having timely speedy laws as per the changing needs of the society.

References

Black’s Law Dictionary
Manupatrafast.com

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“Wars are not won in a day”

This Article is written by Shantam Patil pursuing BA.LL.B from HNLU, Raipur. In this article, he has discussed the legality of lockdown amid Coronavirus with the reference of Draconian Law, an Athenian law scribe under which small offences had heavy punishments.

Introduction

On 11th March 2020, a 123-year-old law (so-called draconian law) was implemented and came into force by the authority of the President and Government of India.

Karnataka was the 1st Indian State to implement this law. Then after many States like Maharashtra, Delhi and others also joined the league and were followed by many others. A series of drastic and rapid events then took place in our country. People ran to the shopping malls and grocery markets, causing a tremendous situation. A heavy police force was then deployed to control the situation. Resulting in many arrests and quarrels between the public and the authorities.

Finally, Prime Minister Narendra Modi came out and announced the total lockdown in India for 21 days on 24th March 2020 at 8 pm and it started functioning from the next day onwards i.e. 25th March 2020. All Economical and other beneficial activities stopped and there was no exchange. India shut its $2.9 trillion (£2.3tn) economy, closing its businesses and issuing strict stay-at-home orders to more than a billion people. Air, road, and rail transport systems were suspended.
Then the second lockdown was announced on until May 3rd and lastly the on 01st May the GOI extends nationwide lockdown further by two weeks until 17 May.

History

Historically it weighs very much important because it is the first-ever all-over nationwide lockdown after Independence of India. Many situations like this occurred in India and also people of India fought with that and survived. The first-ever known situation like this happened during the British regime over India in the year 1897. There was bubonic plague spread all over the city of Bombay (now Mumbai) and the British came up with the Epidemic Diseases Act, 1897.

It is a Pre-independence era, A 123-year-old law that was enacted on the 4th of February 1897. It was evolved by the British Council to tackle dangerous epidemic diseases and was used to prevent the spread of the outbreak of the bubonic plague in India, particularly in Bombay in 1897. This act gave draconian powers to the colonial government which allows British authorities to detain any person and at any time, also it allows for medical examination of the detainee.

While introducing the Epidemic Diseases Bill in the Council of the Governor-General of India in Calcutta for ‘better prevention of the spread of dangerous epidemic diseases’ John Woodburn, the council member who introduced it, himself considered the powers mentioned in it as ‘extraordinary’ but ‘necessary’. Woodburn emphasized that people must ‘trust the discretion of the executive in the grave and critical circumstances.’

This law proved to be very stringent for Indian freedom fighters and resulted in the arrest of many freedom fighters, one of them was Bal Ganga Dhar Tilak. He opposed this act and he used the term “Military Terrorism” in his newspaper Kesari for this pre-independence draconian law.
The Act has, since then, been invoked to fight dengue and malaria in cities like Chandigarh in 2015, cholera in Vadodara in 2018.

Current Scenario

Indeed, there is no doubt that this lockdown is completely legal and the Constitution of India provides for this. The Disaster Management Act provides for a National Disaster Management Act,2005. This is also the first time a nation was shut under the provisions of the Disaster Management Act,2005. This is also the first time a central government has issued directions of this magnitude to the states. The Disaster Management Act provides for a National Disaster Management Authority and section 6 of the legislation deals with powers of the authority from which the authority has issued the directions to the state and central governments.

Section 6(2)(i) of the Act authorizes the National Disaster Management Authority, headed by the prime minister, to take measures for “the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary”. The Act also provisions for a national executive authority, which exercises powers to issue guidelines that will be in effect during the lockdown. The Disaster Management Act also casts a duty on the states to follow the directions of the NDMA as mandated under Section 38 of the Disaster Management Act.

There are other acts also which the government can exercise in situations like – war, state emergency, and financial emergency. And these are: –
Article 352 of the Indian Constitution which provides that the President of India can declare emergency in situations like war, external aggression, or armed rebellion.

Article 356 of the Indian Constitution provides that the President of India can declare state emergency when he is satisfied that the state cannot further be carried out according to the procedure established by the law.
Article 360 of the Indian Constitution provides for the declaration of financial emergency by the President of India when he felts that there is financial instability.

Cause and Effects

For a country whose population is 1.35 billion and also stands 2nd in terms of population.

Certainly, the nation-wide lockdown has proven to be more useful for our country and has helped to tackle the Novel Coronavirus. The reason why we are doing a far better play in the case of positive coronavirus patients than other powerful nations is because of the lockdown imposed all over India by the Government of India.

Also, it has attacked the economy of India very badly and some sources confirmed that it may be possible that a situation like in 1929 happened to cause a major outbreak to the economy that can happen due to this crisis.
Many of the contracts made between two parties to a contract that requires physical attention and supervision shall become void because of the nationwide lockdown and curfew-like situation. This has been provided in Section 56 of the Indian Contract Act, 1872 the doctrine of frustration. It says that “An agreement to do an act impossible in itself is void. And the same has happened. People cannot leave their house and so they are unable to carry out the performance of the contract they may have made.

All the upcoming examinations which were going to be held are cancelled and the board results of Students are delayed due to coronavirus. This would cause a severe drawback in the academic performance of fellow students of the country. Many universities and schools have started online classes for their students. And the government is launching many e-platforms for education. But only the students living in the urban area would be getting benefits from this and people living in the rural area could not because of the poor internet connectivity issues.

Many NGOs, Communities, and Social institutions are coming forward to help and giving large amounts of donations to the people in need. The Government has also exempted common people from various taxes which they pay in a normal situation.

Conclusion

The Government of India is doing its best to stop the spread of Coronavirus in India by taking harsh measures like lockdown, the imposition of the Disaster management act, and Epidemic diseases act. Also, the Central government is cooperating with all the state governments to provide relief and provide assistance to the needy people. India has entered into the third phase of lockdown. This is the situation in which a country requires contribution from every citizen. This is the time that people have to unite and fight against this deadly virus. Now, the time has come that every individual unites together and contribute to fighting against coronavirus.

References

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This article has been written by Nidhi Chillar, Marketing Head and Co-editor at Lexpeeps.in

INTRODUCTION

Several categories of the Citizens have been defined under Part – II of the Constitution of India. A citizen of the state is a person who enjoys full membership of the state. The Citizens of the country are different from aliens and mere residents. Citizens have all the rights provided by the state which may not be available to aliens and residents. For example, in India, the aliens don’t enjoy all the Fundamental Rights, the right to vote is available to the citizens alone. Citizenship inheres only in natural persons and not in juristic persons, like corporations.

What is Citizenship

Citizenship refers to the state of being recognized as a citizen of the state. Citizenship ensures that the person is a member of the state. It further provides the social and political rights to the citizens. A citizen has the right to take part in the governance and administration of the state.

Difference between Citizenship, Nationality, Overseas Citizenship and Resident

Nationality

Nationality refers to the status of belonging to a particular nation. Thus, the person enjoys the nationality of the place where he is born. For example, a person born in India, automatically acquires Indian Nationality, however, in order to obtain the citizenship of a country, a person is required to apply for it, whereas, the nationality is automatically vested on a person, he need not apply for it. A national of one country may apply for the citizenship of a different country. Thus, one can change his Citizenship but can not alter his/her nationality.

Overseas Citizenship

Overseas Citizenship is granted to the people who are not ordinarily the citizens of the country. Thus, the person of India who migrated to other countries except for Pakistan and Bangladesh and has obtained foreign citizenship is awarded overseas citizenship. This should not be confused with dual citizenship. Overseas citizenship is provided only if the home country allows dual citizenship in some form or the other. However, the Overseas Citizens cannot enjoy all the rights which are provided to the citizen of the country for example

1. Overseas don’t have the right to vote.

2. He is not eligible to obtain an Indian passport.

3. One can not contest the elections of Lok Sabha, Rajya Sabha, Legislative Assembly or Legislative Council.

4. A person can not hold constitutional posts like President, Vice-President or the Judge of a Court.

5. He is not eligible to apply for government jobs.

6. He can not acquire the agricultural or plantation property but can inherit the same.

Resident

A resident is a person who resides in a country. A resident is not always the Citizen of the country. A foreign national residing in India can be termed as a Resident of India but not necessarily the Citizen of India unless he acquires Citizenship.

What are the different modes of acquiring Citizenship

Article 5, 6 and 8 of the Indian Constitution specifies certain methods by which a person can acquire the citizenship of India. These are discussed below:

By Domicile

Article 5 lays down two conditions for citizenship

A person must have the domicile in the territory of India before the commencement of the Act.
He must fulfil any of the three conditions given below:

He must have born in the territory of India, or
Either of his parents must have born in the territory of India, or
He must have been ordinarily resident in the territory of India for not less than 5 years immediately preceding such commencement.

‘Domicile’ refers to the intention of residing in a country for an indefinite period.

The domicile is of two types:

Domicile of Origin
Domicile of Choice

1) Domicile of Origin

Every person is born with the Domicile of Origin. The domicile of origin is received by him at the time of his birth. The basis of obtaining such domicile is the paternity or maternity. Thus, a child will acquire the domicile of the same country to which the father was domiciled at the time of the child’s birth. The domicile of origin continues until a person acquires the domicile of choice. Once the domicile of choice is suspended then he again obtains the domicile of origin. In the case of a posthumous child, the child will have the domicile of the country to which his father was domiciled at the time of death.

2. Domicile of Choice

A person can acquire the domicile of choice by fulfilling two conditions:

a) Residing in a particular place

(b) Intention to reside permanently or for an indefinite period.

It must be noted that a child whose parents are unknown gets the domicile of the country in which he is found. After the marriage, the wife acquires the domicile of the husband. However, the case is different if they are judicially separated. In India, a person can not have two domiciles.

Citizenship by Migration

Article 6 of the Constitution of India provides that any person who has migrated to the territory of India from Pakistan shall be the Citizen of India at the commencement of the Constitution of India. For the purpose of Citizenship, people have been classified into two categories:

Those who migrated to India before 19th July 1948
Those who migrated India after 19th July 1948

The people who have migrated to India before 19th July 1948 have to fulfil two conditions in order to obtain citizenship:

The person migrated to India or either of his parents or either of his grandparents was born in India as defined in the Government of India Act, 1935.
The person migrated to India has been ordinarily residing in the territory of India since the date of the migration.

The people who have migrated to India after 19th July 1948 have to fulfil the following four conditions

The person migrated to India or either of his parents or either of his grandparents was born in India as defined in the Government of India Act, 1935.
The person has applied for citizenship.
He has resided in India for 6 months
He has been registered as a citizen of India by the officer appointed by the Government of the Dominion of India.

Citizenship by Registration

Article 8 of the Indian Constitution provides that the persons whose parents or grandparents were born in Indian but residing abroad can obtain the citizenship of India by registration.

Persons Voluntarily acquiring citizenship of a foreign state

Article 9 provides that any person who has voluntarily acquired the citizenship of a foreign state shall not remain the citizen of India. The cases of voluntary acquisition of foreign citizenship shall be dealt with by the Government of India under the Citizenship Act, 1955.

Rights of Citizens

Certain rights are available only to the citizens of India and not the aliens or foreign nationals. These rights are:

Right to Vote
Prohibition of discrimination on the basis of race, caste, sex, place of birth. (Article 15)
Right to Equality of opportunity in matters of public employment. (Article 16)
Protection of Freedom of Speech and Expression. (Article 19)
Protection of language, script or culture of the minorities. (Article-29)
Right of minorities to establish and administer educational institutions of their choice.

Power of Parliament to make laws with respect to citizenship

Article – 11 of the Indian Constitution provides that the Parliament can make laws related to the acquisition and termination of citizenship and matters relating to citizenship. In exercise of this power, the parliament enacted the Citizenship Act in 1955. Several changes were made in the Act in 2003 and 2005 to introduce the concept of overseas citizenship of India.

References

V.N. Shukla, Constitution of India 44 (13th ed. 2017)
State Trading Corpn. of India Ltd. v. CTO, AIR 1963 SC 1811
Anmol Goyal and Sumit Gyal, Concept of Domicile, 1 JUSIMPERATOR, 5 (2017)
Pradeep Jain v. Union of India, (1984) 3 SCC 654
D.P. Joshi v. State of Madhya Bharat, AIR 1955 SC 334
Kulathil Mammu v. State of Kerala, AIR 1966 SC 1614
State of U.P. v. Rehmatullah, (1971) 2 SCC 113

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