Tag: #IndianConstitution

INTRODUCTION

One of the most unprecedented crisis ever in modern human history unfettered its wings in the form of a virus transmission namely Covid-19. The pandemic shook all spheres of life ranging from regular personal issues to the most intriguing aspect of our life. The Legal field was no exception to this havoc and it too bore the brunt of the pandemic. It compelled the justice delivery system to turn its recourse from traditional instruments of justice delivery to modern ones. In order to cope with the complicated demand system and ensure speedy and accessible delivery of justice, the virtual courts evolved to the fullest. It would be necessary to observe that even though they were present before the pandemic, covid-19 caused their application. Even after the retrieval of the pandemic, the ever arching presence of technology-assisted tools such as video conferencing and virtual courts are like to stay long after given their immense benefits of time-saving, speedy trials, social distancing norms, and technical benefits. However, as we know everything comes at a cost, this becomes more relevant in this case where the queen card is technology.¹

TECHNOLOGICAL CONUNDRUM

Starting from the very conception, nearly all the aspects in this technology-driven process suffer from myriad glitches. In the present scenario of virtual proceedings, only lawyers and their respective clients can view the same. The general public is barred from participating in the process. This completely goes against the notion of open courts and access to justice because these ultimately erode the rule of law as the very credibility and transparency depend on the open and fair judicial trials. Moreover, poor audio-video quality, manipulation of testimonials and evidence, power backup and connectivity issues, irregular code of conduct by the stakeholders, difficulty posed in cross-examination of witnesses, and multiple other issues that have crept into the system have further accentuated the discrepancies and complications of the ongoing virtual process.

The words of Adv. Dushyant Dave who quoted, “Performance of virtual courts through the medium of video conferencing has been not only far from satisfactory, but utterly disappointing.” presents a stark contrast as to actual requirements of setting up the requisite infrastructure and the ground reality.

One of the pertinent questions that arise is how to retain the public trust and confidence in the ongoing convoluted circumstances when the very concept of open courts and access to justice have been endangered by the advent and ramifications of covid-19? One of the notable answers to this question could be the live streaming of cases in matters of constitutional and national public interest which had been laid down in the case of Swapnil Tripathi vs Supreme Court Of India². The case lays down the groundwork required for setting up virtual courts, thus, paving way for the establishment of online norms and infra for live streaming.

BRIEF FACTS OF THE CASE

In 2017, Swapnil Tripathi, a law student, filed a writ petition under Article 32 of the constitution and was joined by 3 others, seeking declaration for the live streaming of the cases of constitutional importance and affecting the public at large in a manner that is accessible for public viewing. It further sought guidelines for laying down criteria for determining the cases that qualify for live streaming and also chalking out the list of exceptional cases. In order to buttress his case, the petitioner relied on the case of Naresh Shridhar Mirjkar v. the State of Maharashtra³ wherein the court emphasized the efficacy of open trials for upholding the legitimacy, effectiveness of the courts, and enhancement of public confidence and support.

ISSUES RAISED

Whether there should be live dissemination of the cases with aid of ICT( information and communication technology) and, if they are to be introduced in India, then under what conditions?

DECISION

The decision was delivered by a 3 judge bench of the Supreme Court of India wherein Justice Khanwilkar delivered the majority judgment on behalf of himself and CJI Dipak Misra. Justice D.Y Chandrachud gave a different concurring judgment. The bench ruled that the cases of the constitutional and national importance of public matter should be live-streamed in a manner consistent with the guidelines as prescribed by the honorable Supreme Court of India.

HELD

The Judgement is held to be significant, for it opens the door that provides open access to justice, public information and ensures transparency of the judicial process. The judgment has opened the application of live stream even to the most bottom tiers of judicial institutions i.e. lower courts thereby enhancing the efficiency and effectiveness of the entire judicial ecosystem. The court held that the right to view the live broadcast of the above-mentioned cases flowed from the right to access to justice which is derived from Article 21 Right to life and liberty thereby underlining the concept of open courts. However, this right is not absolute and is subject to the provisions of model guidelines framed for this purpose. The SC shall hold the broadcast and archive rights exclusively. The court concluded that live streaming of cases would uphold the constitution values, infuse public confidence into the judicial machinery, and uphold the values of democracy and integrity. However, there is a compelling need to balance the administration of justice and the virtues of privacy and dignity of the stakeholders involved. The other benefits involve:

1. It would infuse radical immediacy of the court proceedings and espouse public awareness regarding matters of national importance.
2. It would reduce public reliance upon second-hand narratives and ensure the credibility of the system.
3. It would literally eliminate the space and the time constraints by removing physical barriers and decongesting the courtrooms, thereby, greatly aiding in keeping infections at bay.
4. It would drastically enhance the accountability and credibility of the judicial process, thus, promoting democracy.

CONCLUSION

While allowing such streaming, the majesty, integrity, and decorum of the courts as well as of the stakeholders involved, should not be compromised. Given in this unprecedented crisis of covid19 and the post covid world, live streams would be an imperative tool for the purpose of serving justice and fulfilling the notion of open courts thereby promoting technological prowess.

References:

1. https://lawtimesjournal.in/swapnil-tripathi-vs-supreme-court-of-india/
2. (2018) 10 SCC 628
3. 1966 3 S.C.R 744

This article is written by Riya Ganguly, 2nd year BBA LLB student at Bharati Vidyapeeth New Law College, Pune.

Introduction

Tort is a civil wrong, meaning it is a wrong committed against a person. Tort comes from the Latin word “tortum,” which means “crooked” or “twisted.” It is equivalent to the English term ‘wrong’ in this sense. There are two kinds of law: civil and criminal. Tort and contract law are two subsets of civil law. It’s essentially a violation of a legal obligation. It violates the legal rights of others. A tort happens when someone intentionally or carelessly harms another person.

Civilization and law coexist. It is not possible for one to exist without the other. If one thrives, the other develops as well, and if one declines, the other suffers. As a result, tort law was created to deal with everyday offenses.

The Tort Law can be traced back to the Roman precept alterium non-laedere. The maxim means “not to harm another,” implying that no one should be harmed by their actions or words. This maxim is similar to the maxims of honesty vivere, which means “to live honorably,” and suum clique tribuere, which means “to render to every man that which belongs to him,” or “to bring fairness to every person.” The development of tort law can be traced back to these three maxims.

What is Tort according to jurists?

Salmond defined tort as, “It is a civil wrong for which the remedy is a common-law action for unliquidated damages and which is not solely a violation of contract, trust, or other essentially equitable obligation.”

Winfield mentions, “Tortious liability comes from the breach of a primary legal obligation: this duty is owed to all individuals, and its failure is redressable by an action for unliquidated damages,” Winfield says.

The definitions of Winfield and Salmond are incompatible. The practical point of view is represented by Salmond’s definition, but the theoretician point of view is represented by Winfield’s definition. Salmond’s point of view is preferred by lawyers, but Winfield’s is preferred by students. Furthermore, Salmond’s perspective is narrower, whereas Windfield’s perspective is larger.

Application of English Law of Torts in India

In India, tort law is based on English tort law.
The English Law of Torts has a significant influence on Indian tort law, despite the fact that the act has been changed to reflect Indian legislation. When the British ruled India, they established their own set of rules and procedures for administering justice. Jimha, which means crooked in Sanskrit, was believed to be akin to “tortious of fraudulent conduct” in ancient Hindu law. At the time, the scope of British tort was limited.

Because the Indians were utterly uninformed of the English laws, they were found to be unjust and inequitable. It was difficult to administer Indians in the early days of British law since there was an English Judge who had to deal with a case in a foreign language. As a result, they resolved to draught an Indian Tort Law based on English concepts in order to avoid chaos. They chose to set up courts in India in the 18th century after studying the Indian laws at the time and obtaining the necessary approval.

Mayors Courts in the Presidency Towns of Calcutta, Madras, and Bombay were the first courts established by the British in India. These courts were subject to English statutes and Acts, which were then implemented in England.
The courts established that “justice, equity, and good conscience” were the guiding principles at the time. The Privy Council understood the phrase “justice, equity, and good conscience” to include norms of English law that are suitable to Indian society and circumstances. All of this meant that the High Courts of Bombay, Calcutta, and Madras adhered to the Common Law of Torts, while the other courts applied the principles of justice, equity, and good conscience.
Also, when looking at Indian decisions, Justice Bhagwati stated in M.C. Mehta v. Union of India,

“In a highly industrialized economy, we need to develop new ideas and lay down new rules that will effectively deal with new challenges that occur.” We cannot allow our judicial thought to be shaped by the law as it currently exists in England, or for that matter, in any other country. We are absolutely open to receiving illumination from any source, but we must first establish our own jurisprudence.” We can infer from the words that Justice Bhagwati recognized the importance of having one’s own law and how it contributes to the nation’s growth.”

The main purpose of Law of Torts in India

The primary goal of tort law is to provide compensation to people who have been injured. Though, in current times, the goal is to distribute losses among those who are connected in some way.

Furthermore, some authors argue that Tort Law is more concerned with punishing than compensating. For the purpose of Torts, everyone has their own point of view. The violation of a general duty is a common ingredient in both crimes and torts. Murder, robbery, burglary, and other major crimes are all under governmental supervision. The state has power over all common wrongs in Tort Law as well. Individual harm is thought to be equivalent to societal harm.
As a result, the primary goal of tort law is to punish wrongdoers and foster social peace.

Reasons for the slow development of Law of Torts in India

In comparison to other countries, India’s tort law is not well developed. Even the Indian Tort Law does not have a codified version. There are several reasons for India’s sluggish development of tort law, some of which are stated below:

1. The law is ambiguous. People face a great deal of uncertainty because the legislation is not codified and is still in its early phases of development. This is why only a small number of cases are filed under Indian Tort Law. Furthermore, there are few precedents, which adds to the vagueness of Tort law. The existing precedents are from English Tort law and cannot be applied to Indian law.
2. There is a general lack of political awareness among the general public. Because most people are unaware of their rights, tort law is rarely employed in the country. This issue arises as a result of India’s widespread illiteracy, which also causes people to avoid going to court to exercise their rights. People who carry out their responsibilities are given more weight than those who demand their rights.
3. Why do people disregard their legal rights? This is due to a lack of awareness of their rights and the country’s high illiteracy rate. Because of their illiteracy, people are unaware of their rights and are hesitant to seek redress through the courts.
4. Poverty continues to be a factor in India’s delayed development of tort law. The majority of India’s population is economically poor, and as a result, they are unable to afford the hefty costs of litigation. This is still a major reason to avoid bringing a Tort case.
5. The court system is also highly expensive. The cost of going to court and hiring a lawyer is extremely significant. As a result, rather than approaching the court, the poor man chooses to suffer the torture. The cases are likewise handled in a molasses-like manner. On the other hand, in England, the administration of justice is so cheap and quick that these types of cases are resolved in under a year. All of these issues contribute to the tort law’s delayed evolution.

The number of pending cases in India as of October 13, 2018, is depicted in the graph below.

The graph was created using data from the National Judicial Data Grid. Due to the sluggish evolution of Indian legislation, a considerable number of cases are still waiting.

Have Torts been Ignored in India?

The next stage will be to see if the Indian court system has disregarded tort law. Simply said, tort law has not been forgotten. The M.C. Mehta case, which established the absolute liability rule, the Supreme Court’s direction on Multinational Corporation Liability, recognition of Governmental tort by government employees, principles on the legality of the state, the evolution of the tort of sexual harassment, a grant of interim compensation to a rape victim, and award of damages for violations of human rights under writ jurisdiction are all examples of this.

Despite the fact that most areas of law, such as crimes, contracts, property, trusts, and so on, have been systematically organized, India’s lack of a torts code is notable. The work of Indian attorneys and judges has contributed significantly to the evolution of tort law. Tort reform has been advocated for about a century and a half, with the earliest support coming from Sir F Pollock in 1886, who drafted the ‘Indian Civil Wrongs Bill.’ The bill, however, was not brought up for consideration in the legislature.

The value of code cannot be denied, but it is vital to remember that tort law is still in its infancy, and codifying it would not only be difficult but may also stifle its progress. However, the lack of a code prevents torts from becoming the dominant mode of litigation. The evolution of tort law in India pales in comparison to that of other progressive countries, where tort law is substantially more mature.

As previously stated, codification of tort law at this time would be premature. A more prudent approach would be, to begin with, enactments in areas where case law is lacking. The subject of the government’s liability when it comes to torts committed by its workers is one of the first suggestions made by the Law Commission in this regard.

In the report of the commission led by MN Venkatachaliah CJ, the National Commission for Review of the Working of the Constitution (NCRWC) has also recommended a statute that makes the state liable for the torts of its employees (2002). The small volume of tort litigation in Indian courts, on the other hand, contributes considerably to why an Indian code on this branch of law may be premature. Currently, only a small percentage of tort lawsuits are ever brought to court. However, this is a catch-22 since until a code for tort law is developed, there will be few tort cases brought in courts because people have no means of knowing what they are getting into.

Concerns with Tortious Litigation in India

Despite the fact that India is regarded as a litigious country, the number of lawsuits filed is quite modest. This is because of the limits and roadblocks that have been placed in place, including prohibitive fees, lengthy delays, and inadequate harm grants. In recent years, there has been a notable increase in the number of cases completed, particularly in cases involving the administration. This is typically linked to India’s financial development and, as a result, increased awareness of legal rights.

Common law jurisprudence shaped the Indian legal system and was introduced to the Indian people in an uncommon way. Although the English tort law served as a model for its Indian counterpart, its application is still ambiguous and limited. Several decisions and cases involving defamation and contributions between joint tortfeasors plainly illustrate that India cannot and does not adhere to English common law.

The English tort law applied differentially to Presidency towns and the mofussil throughout the colonial era. Indian citizens are exempt from the champerty and maintenance statutes. In fact, only those provisions of English tort law that suit the local conditions in India have been upheld and are valid in India. Given this situation, determining whether a given English statute also applies in India is difficult.

It was also unclear whether a specific statute remained in force in India after being abolished or changed under English law. For such a question, there is no final answer. As a result, unless a judge decided otherwise, it was difficult to know whether aspects of English law were applicable in India. Tort law remained uncodified even after the Constitution took effect. Article 372 of the Indian Constitution states that legislation in effect immediately prior to the adoption of the Constitution remains in effect. Any rulings issued by English courts, on the other hand, are no longer required to be upheld by Indian courts.

These decisions may only have persuasive power at most. As a result, the state of tort law remains unchanged. Because English tort law cannot be applied generally to the Indian setting, Indian tort law as a whole remains ambiguous. Furthermore, there is still a discrepancy in the application of laws in Presidency towns against the mofussil.
Citizens do not have a clear knowledge of their rights and responsibilities before going to court. Lawyers are likewise constrained in how much assistance they can provide in this circumstance because many areas of the law are still uncertain. The judge presiding over the case also has a difficult assignment ahead of him.

It’s simple to understand why victims often accept the wrongdoings they’ve been subjected to without pursuing legal redress. Is there always a way to stand up for one’s rights? The explanation, according to Professor Northrop, could be found in the cultural contrasts between eastern and western nations. Compromise is encouraged in Eastern societies. Furthermore, Asian tribes have a reluctance to use Western, right-wing legislation to resolve their conflicts. As a result, when it comes to torts, there is very little litigation.

People have been skeptical of such sweeping generalizations for a long time, while also urging that we reconsider the need for tort law litigation in India and its repercussions. Such recommendations strongly propose that empirical research be conducted to evaluate the validity of such reasons, which are mostly based on sociological, civilizational, and cultural elements.

If there is one thing that is certain in today’s culture, it is that quality justice is not provided; rather, it can only be purchased at a hefty cost. This is not to imply that the court is corrupt; rather, it demonstrates how a common man cannot even imagine receiving proper recompense for the damages to which he is entitled. This is true because the adversary can always use his money or influence to get around our country’s complicated judicial structure.

The commoner, on the other hand, will face a chain reaction of procedural issues as soon as he approaches the judicial system with his grievance, which will absorb all of his money, willpower, and time. The aggrieved will be obliged to pay hefty lawyer’s fees, court fees, and other incidental charges just to file his claim in court. To the uninitiated, it may not seem true, yet his legal expenses in seeking to recover his losses might sometimes much outweigh the original amount of his claim.

Unfortunately for him, if he loses at the conclusion of the trial, he may be forced to pay even more money to the court, first as costs, and then to file an appeal in a higher court. We haven’t even discussed the length of time it takes to resolve a civil case in India. According to studies, courts in tortious litigation cases take an average of nearly 6 years to reach a judgment. So far, the shortest time it has taken for a tort case to be resolved in 5 years, while the longest time it has taken is 13 years. Even severely harmed people are discouraged from resorting to civil action due to the excessive costs and lengthy decision-making process involved in tort claims.

We have highlighted a few cases that have further discouraged those who have been wronged in order to show the court attitude in such scenarios where compensations must be paid. According to precedent, in a case where the plaintiff’s claim was for Rs. 10,000/-, he was only awarded Rs. 1/- in compensation. In another case, two civil actions were valued at Rs. 500/- apiece, but the court only granted the aggrieved parties Rs. 60/- and Rs. 50/-, respectively.

The Hon’ble Nagpur Bench of the erstwhile Bombay High Court determined that in a matter where the claim was for Rs. 11,300/-, the aggrieved would be satisfied with an award of only Rs. 315/-. In a case before the Hon’ble Madras High Court, a plaintiff filed a claim for Rs. 10,000/- but was only given Rs. 650/- in compensation. It should be noted that these examples are somewhat ancient, yet they have been mentioned to emphasize the Indian judiciary’s inclination to ignore tort proceedings and award grossly disproportionate amounts when contrasted to the plaintiff’s claims.

Major Breakthroughs in Tort Law in India

UPHAR CINEMA CASE –The Gateway to Tort Law in India

The Uphaar Cinema, located in a wealthy suburb in the center of the country, New Delhi, caught fire on June 13, 1997, due to a malfunctioning generator mounted by the Electricity Board in the theatre’s basement. The exits from the balcony were clogged due to the installation of unlicensed seats years ago. As a result, the occupants inside the theatre were unable to flee, and fifty-nine people perished and another hundred were injured.

In November 1997, all of the injured’s outraged family members established an association and filed a complaint in the High Court of New Delhi, represented by a volunteer lawyer. The group sought Rs. 22.1 crore in compensation and Rs. 100 crore in punitive damages, which would be used to establish a trauma center, making it the biggest demand in an Indian tort case to date.

Following that, in 2003, the court ordered Rs. 21 crores in compensation for the families of the deceased people, as well as Rs. 1.04 crore for the 104 injured theatre-goers. In addition, a sum of Rs. 2.5 crore has been approved for the establishment of a trauma center in this regard.

The multimillionaire theatre owners were then charged with criminal offenses, and the Sessions Court found them guilty and sentenced them to two years in prison. However, the aggrieved association, dissatisfied with the penalty, went to the Supreme Court in 2007, which maintained the convictions and enhanced the sentence.

In India, the Uphaar Cinema Case was a watershed moment for tort relief in catastrophes. It had well-organized and affluent appellants represented by a dedicated lawyer who did not charge for his services, as well as a case with no evidentiary issues.

However, fourteen years after the fire, on October 13, 2011, the Supreme Court reduced the damages awarded to the deceased victims to a fraction of their original amount, from 2.5 crores to 25 lakhs, a 90% reduction, and all government agencies charged with the fire were exonerated except the Delhi Electricity Board. Even when it was a win-win case totally in favor of the appellants who had been tortured by the incompetent authorities, the future of mass tort in India appeared dismal once again.

In 2014, the Supreme Court heard a new appeal in the criminal case of Uphaar. It upheld the Ansals’ convictions, i.e. the cinema owners who had previously been found guilty, but it couldn’t agree on the amount of compensation to be paid to the victims. Justice T.S. Thakur favored restoring the Ansals’ original punishment, but Justice Gyan Sudha Mishra favored awarding Rs. 100 crore as compensation for the establishment of a Trauma Center in the Uphaar Victims’ memory. The judge’s readiness to award such a large sum for a tort law case in India, far bigger in magnitude than had previously been contemplated, demonstrated the growth of mass torts in India.

INDIAN MEDICAL ASSOCIATION VS. V.P. SHANTHA– The Saha Case

In 1986, Parliament passed the Consumer Protection Act, which established a three-tiered consumer grievance redress system to give remedies for substandard “goods and services” across the country. In 1995, the Supreme Court ruled that “medical services” would fall under the Consumer Protection Act of 1986’s “goods and services” category. As a result, medical claimants no longer have to travel to court and pay high court fees, and they began submitting claims in Consumer Tribunals, which accounted for the majority of the cases handled by the Consumer Tribunals at the time.
From 2008 to 2014, the National Consumer Dispute Redressal Service delivered 154 medical malpractice lawsuits, accounting for 8% of its total judgments. Surprisingly, the claimants won over the medical practitioner in nearly 45 percent of the cases. From the moment the lawsuit was filed until the final verdict was reached, it took an average of 11.7 years.

An Indian-American couple traveled to Kolkata a year after the Uphaar tragedy to meet their relatives. The husband was a medical doctor, and the wife was a child psychologist who was 36 years old. The wife had a treatable but uncommon skin ailment and was admitted to the AMRI hospital, where she was cared for by a number of famous medical professionals. The treatment involved the administration of massive amounts of Depomoderol, which exacerbated the wife’s condition and finally led to her death.

Dr. Kunal Saha, the dissatisfied spouse, filed a complaint with the West Bengal Medical Council, which cleared the doctors. The spouse then filed criminal charges against the doctors under section 304A of the Indian Penal Code. The doctors were convicted by the West Bengal courts, but the Calcutta High Court overruled the District Court’s decision and exonerated them. Regrettably, the Supreme Court confirmed the Calcutta High Court’s decision regarding criminal responsibility.

Dr. Saha’s wife died as a result of the negligence of the three AMRI doctors, and a claim of Rs. 77 crore was made with the National Consumer Disputes Redressal Commission (NCDRC). The National Consumer Disputes Redress Commission (NCDRC) dismissed his claim and complaint in 2006. Dr. Saha represented himself in all of these proceedings, which cost him in a number of ways: (1) He had to travel 50 times from the United States to India as the case advanced. (2) Due to legal and travel expenditures, he declared bankruptcy in the United States of America. (3) He did not take up his academic position in Cincinnati, and as a result, his academic career was cut short.

Finally, the Supreme Court of India rejected the NCDRC’s ruling in 2009, and the matter was referred back to the National Consumer Disputes Redressal Commission to determine the amount of compensation. In October 2011, the commission finally awarded Dr. Saha damages of Rs. 1.5 crore. When the matter was appealed to the Supreme Court, a sum of Rs. 6.08 crores was awarded to Dr. Saha, directed against the doctors and the hospital, plus interest of 6% per annum, more than double the compensation previously awarded.

The Saha Case is a classic example of a one-on-one case that resulted in a milestone in Indian tort law. The Supreme Court granted increased damages because of the loss of a long career with a high American income that was harmed. The Saha case is an interesting reversal of the Bhopal Gas Tragedy, in which the perpetrator was an American Union Carbide Company and the victims were Indians, whereas the Saha case involved Indian wrongdoers and an American victim. We still don’t know if the broad tort damages based on monetary losses perpetuate gaps and inequality among the general public.

The Future of Torts in India – Conclusion

There is no empirical evidence to claim that India is a litigious nation. The truth is that Indian courts move slowly not because they are inept, but because there are too many cases for too few judges. We need to increase capacity in order to make our judicial system more strong, not just for civil cases, but also for criminal proceedings. Personal harm, which is addressed by tortious litigation elsewhere in the globe, requires significant attention in India, as has been adequately portrayed in this study. Tortious responsibility claims, both against the government and private parties, abound in the country. The procedure of approaching the court, on the other hand, is so delirious for the plaintiff that they are better off not going.

In general, as things stand now, those with money and privilege are able to buy their way out of the judicial system and avoid responsibility for their own negligent behavior. With little resources, it is the poor who must fight the system and the aggressor. This deplorable state of affairs necessitates a reassessment of tort litigation in India. Perhaps there is a need to constantly issue statutes that correctly deal with diverse tort law principles, rather than codifying and therefore making the entire branch immobile. A strong civil-litigation system will undoubtedly strengthen the government’s and citizens’ discipline, while also protecting human life and dignity. A strong civil-litigation system will undoubtedly strengthen the government’s and citizens’ discipline, while also elevating the value of human life and dignity for all people, not just the wealthy.

This article is written by Uday Todarwal.

INTRODUCTION

The word ‘federalism’ is derived from the Latin word ‘foedus’ which means ‘covenant or treaty. Federalism refers to the distribution of powers between the state and the central government. Three lists are provided by the seventh schedule of our Indian constitution and the three lists are union lists, state lists, and the concurrent list. The central government deals with the issues mentioned under the union list such as defense, trade and commerce, citizenship, insurance, banking, highways, railways, higher education, navigation and shipping, and many more. The state government deals with the issue given under the state lists such as agriculture, pilgrimages within India, prisons, state court fees, public health and sanitation, and the last list is a concurrent list which consists of issues on which both the central government and the state government can exercise jurisdiction such as contempt of court, evidence, protection of wild animals and bird, labor welfare, stamp duties, food, administration of justice, etc. if there is a conflict between the central government and the state government then, the decision of the central government will supersede the decision of the state government.

PRINCIPLES OF FEDERALISM

SEPARATION OF POWERS
The power is divided into three branches: legislative, executive, and judiciary. These three organs of the government are independent of each other. These branches are well-known examples of the tripartite system in the united states. The main purpose of this separation of power is to prevent the concentration of power and autocracy.

CHECKS AND BALANCES
Checks and balances are important to prevent the concentration of power and violation of the separation of power. It is required for the proper functioning of the three organs of the government. Some of the examples of checks and balances are judicial review, basic doctrine structure of the Indian constitution, etc.

KEY FEATURES OF THE FEDERALISM UNDER THE INDIAN CONSTITUTION

DIVISION OF POWER
Division of power is the essential feature of federalism so that the power is not concentrated in the hands of the central government. In this, the power flows from the central government to the state government and the local government i.e panchayat.

SUPREMACY OF THE INDIAN CONSTITUTION
Supremacy of the Indian constitution means that the powers of the executive, judiciary, and the legislative are mentioned in the Indian constitution and they are bound by the constitution hence, no one is above the constitution. This feature gives strength to the basic structure doctrine of the Indian constitution which was given by the Keshvananda Bharti vs the State of Kerala¹.

WRITTEN CONSTITUTION
A written constitution is necessary to constitute a country as a federal nation. As it is difficult to distribute the powers orally among the center and the state government. Written constitution helps to maintain the supremacy of the Indian constitution and provides clarity.

RIGID CONSTITUTION
It is important to have rigidity in the constitution to maintain the supremacy of the constitution.

JUDICIARY
There can be a dispute between the center and the state and the judiciary provides the proper mechanism to solve the dispute between them and the decision of the judiciary is binding upon all of them.

• ARTICLE 131
  According to this article, the supreme court has original jurisdiction to hear the disputes between the center and the state, two or more states, etc.²
• ARTICLE 262
  This article focuses on the issue of water and valley disputes between states. This parliament Is allowed to make laws on the distribution of water or control of river valleys and can even bar the supreme court to hear disputes related to water or valley disputes.³
• ARTICLE 263
  Article 263 is based on the issue of the “establishment of the inter-state council”. In this article, the president can ask to establish a council on the charge of interest of the public or to resolve disputes between them. The duty of these councils is to advise and inquire the states if a dispute arises between them, make a recommendation for the better functioning of the policy, and discuss the subjects which are common to both the state and the union.⁴

BICAMERAL LEGISLATION
Like Canada, India has also bicameral legislation. India also has two houses upper house [Rajya Sabha] and the Lower house [Lok Sabha] and a bill have to be passed by both the houses of the parliament. In India even states also have bicameral legislation such states are Karnataka, Maharashtra, Uttar Pradesh, Bihar, Telangana, and Andhra Pradesh. They have an upper house [Vidhan sabha] and a lower house [Vidhan Parsihad].

QUASI FEDERALISM

Quasi federalism means a form of government that has features of both the federal government and the unitary government. For example India and Canada. But the major control and authority lie with the central government. India is a quasi-federal country in which the states have the power to make laws under list 2 of the seventh schedule of the Indian constitution and the central government has jurisdiction on the matters mentioned in the first list of the seventh schedule of the Indian constitution. The state government and the central government both have the powers to make laws on the matter listed under the third list of the seventh schedule of the Indian constitution. If the dispute arises between the center and the state then the opinion of the central government will prevail.

In India, emergencies can be imposed under articles 352, 356, and 360 of the Indian constitution. During an emergency center government retains all the power and the state government has no autonomy during an emergency. This way federalism loses its luster.

ISSUES AND CHALLENGES FACED BY THE INDIAN FEDERALISM

REGIONALISM
As center focuses more on bigger states than the smaller states and states work according to the democratic system. Then, the conflict can arise between them and they demand to be separated from the union.

ABSENCE OF FISCAL FREEDOM
Fiscal freedom basically means the distribution of financial and tax-related power between the center and the state government. It is necessary for the development of the nation. Though the main power lies in the hands of the center and also they have a finance commission whose work is to decide the state’s share in the center’s revenue.

OFFICE OF THE GOVERNOR
Governor is the head of the state and is appointed by the president of India under Article 155 of the Indian constitution. The decision of the president can overrule the decision of the governors appointed by the president.

INTEGRATED SERVICES
India has integrated services of the judiciary, audits, elections, and many more. The judiciary system of India consists of the supreme, the high court at the state level, and district courts. Supreme courts decisions are bound on the high court and the high court doesn’t have jurisdiction to entertain cases related to disputes between the states. The process of election is the same at both the center and the state level. At the center, it is conducted by the election commission and at the state level it is conducted by the chief electoral officer [CEO] but they are under the supervision of the election commission.

DIFFERENT RELIGION
India is a diverse country and has people who belong to many religions but India is a secular state and the word secular was added in the preamble under the 42nd amendment act which means India will not have any religion or will not promote any religion. This can lead to a conflict between the two religions and then makes federalism weak.

CASE LAWS

MANEKA GANDHI VS UNION OF INDIA
In the year 1978, the verdict passed under this law is that any law made by the legislature is considered to be ultra vires if it violates or infringes any of the fundamental rights. The fundamental rights can only be changed by the constitution, hence this is a check on both the executive branch and the parliament and the state legislatures. During times of emergency article 19 of the Indian constitution is taken away as during the times of emergency our country follows a unitary government. Therefore India is a quasi-federal country.⁵

STATE OF WEST BENGAL VS UNION OF INDIA
The exercise of sovereign rights by Indian states was the central issue in this case. The Parliament’s legislative competence to implement a statute requiring the Union to acquire land and other properties vested in or owned by the state, as well as the sovereign authority of states as separate entities, were also investigated. The Supreme Court of India ruled that the Indian Constitution did not contain an absolute federalism provision.⁶

Article 13 of the Indian Constitution will therefore become a non-issue, and it may be overlooked because even regular legislation will be exempt from judicial examination because they were passed on the strength of a constitutional amendment that is not subject to challenge.⁷

CONCLUSION

Federalism is the distribution of power from the central government to the state government and the local government. The main objective of this is to prevent autocracy. India is quasi federalism country which means it has the features of federalism but the main authority lies with the central government. No doubt there is a lack of balance between the center and the state government.

References:

1. Kesavananada Bharti vs state of Kerala, [1973 SC 1461]
2. Constitution of India, 1950 Art 131
3. Constitution of India, 1950 Art 262
4. Constitution of India, 1950, Art 263
5. Maneka Gandhi Vs Union of India, [AIR 567, 1978 SCR[2] 621]
6. State of West Bengal vs union of India, [AIR 1987 Cal 226]
7. Constitution of India, 1950 Art 13

This article is written by Prerna Pahwa, a student of Vivekananda Institute of Professional Studies, New Delhi.

Bench

By Hon’ble Justice Mr. Deepak Gupta and By Hon’ble Justice Mr. Aniruddha Bose

Advocates

Pritha Srikumar, Arunima Kedia (Appellant Side) & B.V. Balaram Das, Hrishikesh Baruah (Respondent’s Side)

Cases Referred

Dr. Subhramanium Swamy And Ors vs Raju through the Member Juvenile Justice [, SC (2014) 8 SCC 390]

Factual Observations

• A juvenile ‘X’, aged 16 to 18, is accused of committing an offense punishable under section 304 of the Indian Penal Code, 1860 (IPC)¹, which carries a maximum penalty of life imprisonment or up to ten years in prison and a fine in the first part and up to ten years in prison and a fine in the second part.
• The deceased in the car accident was the appellant’s brother. The Juvenile was between the ages of 16 and 18 at the time of the incident. The appeal to the Children’s Court was similarly turned down. Following that, the juvenile ‘X’ sought the High Court of Delhi through his mother, who ruled that because no minimum term had been set for the offense in question, it did not fall under the purview of section 2 of the Juvenile Justice Act, 2015. The deceased’s sister has now filed an appeal before the Supreme Court.
• Heinous, petty, and serious transgressions are defined in sections 2(33), 2(45), and 2(54). In the IPC or any other legislation in force, heinous offenses are those for which the sentence imposed is a minimum of 7 years in prison or more.
• Siddharth Luthra, counsel for the appellant, pointed out to the Court that the Juvenile Justice Act has left out the fourth category of offenses for which the minimum sentence is less than 7 years, or for which no minimum sentence is prescribed but the maximum sentence can be more than 7 years, including homicide not amounting to murder (offense of present case). He persuaded the Court to remove the word “minimum” from the definition of heinous crimes, allowing all crimes to be categorized as “heinous crimes” with the exception of minor and serious offenses.
• Furthermore, he argued that leaving out the fourth category of charges would result in absurdity, which could not have been the legislature’s objective.
• Mukul Rohtagi, a skilled senior attorney for the Juvenile, contended that the Court could not amend the law. He stated that the Court could not interpret the legislature’s meaning since a category of offenses was left out and that the Court could not interfere to close the gap in the Act.

Issues Raised

1. What does Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015 mean and how is it interpreted?
2. What is the uncertainty created by the word “minimum” in the Statute, and how is it interpreted?
3. How can a juvenile be treated under a category of an offense that is not defined in the statute but that the appellant argues should be included as an offense?

Contentions

APPELLANT

• The appellant claimed that there was one type of crime that was not addressed in the Act of 2015, claiming that heinous crimes are those that carry a “minimum” sentence of seven years or more.
• The unincluded category, it was said, would introduce absurdity, which the Legislature did not intend. The argument was that the Act had a gap in it that generated ambiguity and, as a result, did not specify anything.
• It was also claimed that the word “includes” was used in the definition of “heinous offenses”² implying that the definition is inclusive and encompasses things not mentioned in the definition.

RESPONDENT

• The appearing counsel argued that the Court was not in a position to rewrite the legislation and that the Court could not deduce the Legislature’s intent only based on an unincluded category of offenses.
• Even if the court had to fill the gap in the Act, it was claimed that this was not practicable in this case.

Difference of Opinion B/W Lower Court and SC

The crucial question before the court was whether the youngster should be tried as an adult or not. In this case, the child was over the age of 16 but under the age of 18 when he committed the offense.

Juvenile Justice Board– Because the youngster committed an offense under the definition of a ‘serious’ offense, the Juvenile Justice Board ordered that he be punished as an adult. The mother of the kid then petitions the High Court because the sentence for the offense was not passed under Section 2 (33) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

High Court– High Court stated that if a kid has committed any heinous offense such as rape or murder, which is punished for more than 7 years, a punishment similar to that given to an adult can be imposed. The order was found to be inconsistent, prompting an appeal to the Supreme Court.

Supreme Court– It was determined that this Act does not apply to the fourth category of offenses, which are penalized for more than seven years but do not include a minimum sentence or a sentence of fewer than seven years. As a result, under the context of this Act, this is referred to as a “serious offense”. This type of issue is to be dealt with according to this procedure unless the Parliament itself deals with it.

Judgment of SC

Luthra’s submission reasoned that it was not the Court’s responsibility to fill in the gaps and fix them. The Court stated that if the legislature’s purpose was clear, it might add or remove terms from the Act. However, in cases where the legislature’s intent is uncertain, the Court cannot add or remove words to provide meaning that the Court deems fit into the scheme of things. The Court was interpreting a statute, which had to be construed following its wording and intent.

The Court dismissed the appeal by resolving the issue and ruling that an offense that does not carry a minimum penalty of seven years cannot be considered terrible. The Act, however, does not address the fourth category of offenses, namely, offenses where the maximum sentence is more than seven years in prison but no minimum sentence or a minimum sentence of fewer than seven years is provided, shall be treated as ‘serious offenses’³ within the meaning of the Act and dealt with accordingly until Parliament takes a call on the matter.

Unless the Parliament acts with it, this type of matter must be dealt with using this approach. It was decided that the Legislature’s objective does not have to be the same as the judge believes it should be. When the statute’s wording is obvious but the Legislature’s intent is ambiguous, the Court cannot add or remove terms from the statute to give it a meaning that the Court believes fits into the scheme of things. However, if the Legislature’s aim is obvious, the Court can see behind the statute’s inartistic or clunky wording and determine the problem that must be handled under the code’s objectives. The court also ordered the High Court to remove the child’s name from the Child in Conflict with the Law registry. As a result, the case was resolved in favor of the child.

Ratio Decidendi:

The rationale or the ratio decidendi is one of the crucial aspects in analyzing the mindset behind a judgment. According to Section 14 of The Children Act, 1960, If the child offender has committed a heinous crime, the Juvenile Justice Board must conduct a preliminary examination to determine the child’s mental and physical capacity to commit the crime, as well as the child’s ability to comprehend the consequences of the crime and the circumstances in which the crime was allegedly committed. The Board has the authority to enlist the assistance of experienced psychologists, psychosocial workers, or other field experts. The statement makes it clear that the preliminary assessment will not focus on the trial’s merits or the child’s allegations.

Further, under section 15 of The Children Act, 1960 –
(1) There is a need to try the child as an adult under the provisions of the Code of Criminal The procedure, 1973 (2 of 1974), and pass appropriate orders after trial, subject to the provisions of this section and section 21, taking into account the child’s special needs, the tenets of a fair trial, and maintaining a child-friendly environment;
(2) There is no requirement for the child to be tried as an adult, and the Board may conduct an inquiry and issue appropriate directions in accordance with section 18. (2) In the case of a child in conflict with the law, the Children’s Court shall ensure that the final order includes an individual care plan for the child’s rehabilitation, including follow-up by the probation officer, the District Child Protection Unit, or a social worker.

In Dr. Subhramanium Swamy And Ors vs Raju through the Member Juvenile Justice…, on 28 March 2014⁴, only one of the five people was not sentenced to death by the session court on March 28, 2014, according to the Member Juvenile Justice… In their appeal, the petitioners demanded that the juvenile be prosecuted and punished alongside the other four defendants. The first appeal, which was dismissed by the Delhi High Court, was filed. Another appeal was filed with the Supreme Court, but it was dismissed. As a result, Dr. Subhramanian Swamy’s application was denied by the Supreme Court. Furthermore, the court dismissed the victim’s parents’ writ suit.

Concluding Observations:

After analyzing the situation in the instant case, while acknowledging that the court cannot legislate, the reasoning of the bench that if it did not address the issue, the Boards would have no guidance on how to deal with children who have committed fourth-category offenses is concluded to be to the point. The court stated, “Since two viewpoints are feasible, we would prefer to choose the one that is in favor of children.” The bench, therefore, invoked its authority under Article 142 of the Constitution to order that, as of the date the 2015 Act took effect, all children who committed fourth-category offenses to be treated in the same way as children who committed serious offenses. Still, there is a need to make some serious amendments in the BOOKS OF JUSTICE.

We all know the maxim ‘Salum Populi Suprema Lex’ which means ‘the welfare of the society is the supreme law’, but unfortunately the court failed to apply the same in the recent case. I believe that sending the accused to a reform center will not affect him because his parents, who were aware of his repeated infractions, did nothing to stop him and may be able to “buy the system completely.” I personally feel that these verdicts by the Apex Court only encourage teenagers to become criminals and nothing else. A perfect example of the same is NIRBHAYA CASE.

References:

1. Section 304 of the Indian Penal Code, 1860: Punishment for culpable homicide not amounting to murder
2. Defined in Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015
3. Defined in Section 2(54) of the Juvenile Justice (Care and Protection of Children) Act, 2015
4. Dr. Subhramanium Swamy And Ors vs Raju through the Member Juvenile Justice, SC (2014) 8 SCC 390.

Analysis by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

The environment assumes a vital part in human existence as well as in the advancement of society. With developing mechanical progression and industrialization, the immaculateness of the climate has been threatened to a horrifying degree. The need to secure and further develop the climate is so convincing for the endurance of humankind and other life structures on planet Earth that the right to climate has arisen as basic liberty. Climate alludes to the regular environmental factors and conditions where we reside. Tragically, the environment has gone under genuine danger. This danger is for the most part because of human practices. These human exercises have absolutely made genuine harm to the environment. Most significant, this harm takes a chance with the endurance of living things on Earth. Subsequently, there is a pressing need to save the Environment.

For this, environment security is improving, guarding, and keeping up with the nature of the climate. The fundamental strategies for natural assurance are reusing, reusing, and lessening; be that as it may, a few different techniques like Green Energy creation, green transportation improvement, and eco-accommodating industrialization likewise exist. Inhabitants, as well as organizations and ventures, should assume their essential parts to work on the climate.

HISTORY OF ENVIRONMENTAL LAWS

Mankind has forever been worried about the climate. The antiquated Greeks were quick to foster a natural way of thinking, and they were trailed by other significant human advancements like India and China. In later times, the worry for the climate has expanded due to developing consciousness of the biological emergency. The Club of Rome, a research organization, was quick to caution the world with regards to the risks of overpopulation and contamination in its report “The Limits to Growth” (1972).

The advanced ecological development started during the 1960s when worries about the adverse consequence of people on the climate started to increment. Because of these worries, legislatures all over the world started to pass regulations to safeguard the climate. In the United States, for instance, the Environmental Protection Agency (EPA) was laid out in 1970.

The start of ‘present day’ global ecological regulation is dated 5 June 1972 which denotes the start of the United Nations Conference on the Human Environment in Stockholm. This period incorporates numerous advancements that occurred up until the 1992 United Nations Conference on Environment and Development.

STOCKHOLM CONFERENCE

It was in 1972 when interestingly nations across the world met up to distinguish and resolve natural issues at the United Nations Conference on the Human Environment in Stockholm. This occasion has had an enduring impact on the improvement of global ecological regulation. This gathering depended on the focal issue of contention between the financial turn of events and ecological insurance and it was this meeting where the idea of Sustainable Development was molded. The gathering was gone before by the Founex Meet in Switzerland where it was perceived that natural insurance and monetary improvement should go connected at the hip accordingly establishing a framework for the idea of feasible turn of events, which legislatures affirmed later at the Rio Conference on Environment and Development. At the Stockholm Conference, the Stockholm Declaration on the Human Environment was taken on which prompted further improvement of worldwide natural regulation. Because of the Stockholm Conference, nations laid out the United Nations Environment Program (UNEP) in Nairobi, Kenya which was not laid out as a United Nations specific organization.

A few significant multilateral arrangements related to the Stockholm Conference, are the Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matters and the Convention for the Protection of World Cultural and Natural Heritage, in 1972, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) in 1973. These arrangements were the early support points of global ecological regulation and along with the UN Conference, set up for the improvements in worldwide natural regulation.

In the following twenty years, global natural arrangements multiplied and in excess of 1100 worldwide legitimate instruments that were in without a doubt committed to the climate. In this period, nations became skillful at haggling new arrangements in brief periods which didn’t surpass 2 months.

The global natural arrangements went into during this period began as a means of observing and revealing explicit ecological dangers and had its own, discrete office to help nations in executing the concurrence with independent conventions for the exchange of peaceful accords, including trans-limit air contamination ozone environment, and so on the time frame between 1972-1992 saw changes in the subjects and the focal point of global ecological arrangements. The extent of arrangements additionally extended from controlling trans-limit contamination to worldwide contamination issues, for example, the consumption of the ozone layer, monitoring environments, and so on.

HISTORY OF ENVIRONMENTAL LAW IN INDIA

In the course of the most recent twenty years, the Indian judiciary has cultivated a broad and inventive way to deal with environmental rights in the country. Complex matters of ecological administration have been settled and therefore a progression of inventive procedural solutions have advanced to go with this new meaningful right. The new environmental right is subsequently advocated as a legitimate pathway to expedient and modest lawful solutions.

The notional development of the right to life was perceived even without any particular reference to the infringement of this major right. However, the basic liberty culture has permeated down to the Indian human rights system within a short time frame. An interdisciplinary way to deal with environmental protection might be one more justification for the activity of the right to a healthy and clean climate. This has been attempted through global ecological agreements and shows, public administrative measures, and judicial reactions.

It has been studied in the case of environmental laws and policies, the Indian scenario is actually filled with attempts and examples in trying to preserve the environment from further degradation. Let’s look into how that protection came into being by going back to the historical background. Ancient India had always been keen and concerned in maintaining protecting the environment. But let’s look into how the British’s then passed legal regulations and actions carried out as it is what has had a huge impact on how India has turned out to be in the present age.

During the British Period, they looted India off of their natural resources, combined with a total indifference with regards to environmental protection. An overall overview of early natural resource regulation uncovers that separated from the wood’s regulations, nineteenth-century regulation likewise somewhat directed two different parts of Indian climate- water contamination and wildlife. These regulations, in any case, had a restricted reason and restricted spread in other regions. Obviously authoritative measures were taken by the British Government for fighting against contamination and for the preservation of natural resources. In spite of the fact that pundits call attention to that the British authorized these regulations, not with the object of safeguarding the climate but rather fully intending on procuring income for themselves, it ought to be viewed as the initial move towards the preservation of natural resources. Regardless of the way that these actions were made with ulterior intentions, British-sanctioned regulations have contributed essentially to the development of environmental jurisprudence in India.

Some of the laws passed during the British rule are,

• Merchant Shipping Act of 1858 dealt with the prevention of sea pollution by oil.
• Shore Nuisance (Bombay and Kolaba) Act, 1853 imposed restrictions on the fouling of seawater.
• The Fisheries Act, 1897
• Wild Birds and Animals Protection Act, 1912
• The Bengal Smoke Nuisance Act of 1905
• Bombay Smoke Nuisance Act of 1912

And after Independence,

• The Indian Constitution embraced in 1950 didn’t manage the subject of climate or counteraction and control of contamination all things considered.
• It was the Stockholm Declaration of 1972 that turned the consideration of the Indian Government to consider environmental protection.
• Exhaustive (exceptional) ecological regulations were established by the Central Government in India.
• Public Council for Environmental Policy and Planning was set up in 1972 which was subsequently developed into the Ministry of Environment and Forests (MoEF) in 1985.
• The Wildlife (Protection) Act, 1972, focused on the objective and present-day wildlife management, and many more.

ENVIRONMENTAL LAWS AND POLICIES IN PRESENT INDIA

Prominently, the public authority has passed different regulations to check the harm caused to the climate, for example, the Environmental Protection Act, 1986, Forest Conservation Act, 1980, Water Prevention and Control of Pollution Act, of 1974, Public Liability Insurance Act of 1889, Biological Diversity Act of 2002, and National Green Tribunal Act of 2010.

As indicated by Article 48 (A) of the Indian Constitution, the state will attempt to safeguard and work on the climate. It ought to likewise attempt to defend woodlands and the natural life of the country. As per Article 51(A) (g) of the Indian Constitution, each resident of India has a basic obligation to safeguard and further develop the indigenous habitat including backwoods, lakes, waterways, and untamed life and ought to have empathy for living animals. These are some of the rights among others like sections 253, 246, etc.

Now let’s get into how these regulations tend to have a fallback or poor implementation. One of the primary explanations behind this is that there is no autonomous administrative body for ecological administration. It is taken care of by the Ministry of Environment Forest and Climate Change (MoEF). Because of inordinate obstruction by the government on the administration of the Ministry, there is unfortunate execution of natural regulation. The politicians also lack the willingness to further push the need for effective implementation, adding on with the lack of awareness of the people.

Businesses are committed to taking authorization from the State Pollution Control Board to release effluents and cause outflows yet there is laxity in consistence because of the absence of solid punishment measures. The Comptroller and Auditor General in India in its 2011-12 report on Performance Audit of Water Pollution in India say that the punishments for the contradiction of WPCA 1974 are excessively frail. There is also a lack of funds for the Pollution Control Boards and they don’t even have proper infrastructure or laboratories. These are just some of the problems amongst many in India. And to correct these few, the following solutions are recommended. A free administrative body should be laid out. The MoEF in 2009 had proposed for a “Public Environmental Protection Authority” in its discussion paper which would go probably as a body for ‘noticing, rule, and execution’ of natural administration. Like on account of Vellore Citizen Forum versus Association of India the guideline of polluter pay rule was applied. For this situation, a Public Interest Litigation was recorded by the candidates in light of the fact that the tanneries and different enterprises were releasing untreated effluents into the River Palar in Tamil Nadu. 35,000 hectares of the farming area has become either absolutely or somewhat ill-suited for development as per Tamil Nadu Agricultural University Research Center, it was held that the enterprises need to pay the townspeople for the harm brought about by them and furthermore make up for the rebuilding of the environment.

Public awareness and an increase in the political will to help is an absolute necessity. NGOs can assume a vital part in this. Prizes should be given to businesses, associations, and so on to recognize infringement and make a move to resolve the issue. Financial endowments, cost-sharing ought to likewise be advanced. And many other steps should be taken like giving more funds to SPCP.

Actions to protect the environment are also taken by the people themselves. Many climate/environment-oriented actions have been initiated which is indeed commendable. Some of the notable movements have taken the forms of advertisements, protests, like the recent protest which was staged by the All Assam Students’ Union (AASU) and All Assam Matak Youth Students’ Union against the decision made by the National Board of Wildlife (NBWL) to allow North-Eastern Coal Fields (NEC) to do opencast mining in 98.59 hectares of Dehing-Patkai Wildlife Sanctuary in 2020, to protect the wildlife sanctuary and the vast fauna. Or the SAVE AARAY movement in 2019, mobilized by the people to go against the Mumbai Metro Rail Corporation Limited’s (MMRLC) metro 3 car-shed plan that would lead to the felling of the Aarey Colony, and the only national park that was situated outskirts the metropolis, rich in flora and fauna. This was also done to protest against the fact that many tribal communities had also been displaced by big project plans.

CONCLUSION

So, therefore, the Stockholm Conference definitely assumed a critical part in illuminating ecological corruption that has been caused around the world. Thus, the worldwide level of natural and biological issues has been improved to a particular level which the nations of the world had never envisioned ever.

The Courts in India have played a distinctive job in step by step broadening the extent of a good standard of living by applying different issues of ecological protection. Therefore, practices representing a significant danger to the climate were diminished to safeguard the person’s human right to a healthy climate. Article 21 has been dependent in plenty of cases, albeit certain cases have consolidated a more extensive point of view of the Constitution.

With contamination expanding every year and causing the crumbling of the natural habitat, it has become important to find ways to safeguard the common habitat. As we realize that the justification for this multitude of issues is people, state-run administrations should decide to limit their exercises that are actually hurting the climate. And if they are not halted direly, then, at that point, the world could see some devastating collapse and degradation before it’s too long. For instance, environmental change has been a huge issue, and this is one of the reasons for continued contamination. A good future relies upon the climate in general.

Written by Tingjin Marak, a student at Ajeenkya DY Patil University, Pune.

All individuals who have been a victim of crime have had themselves and their families affected, significantly making monetary misfortunes to the people in question. And the effect of these crimes and wrongdoings on the people in question and their families goes from genuine physical and mental wounds to perpetual aggravations. These consequences should immediately be changed and adhered to by giving care and attention to those affected through several measures and laws, giving them simple admittance to equity. Even if they have observed help and help from their family, clan, or the local area, they have, all things considered, stayed “failed to be a remembered individual” in the criminal justice administration system.

DEFINITION OF VICTIM

Within the Indian legal framework, the term victim is defined under Section 2(wa) of the CrPC, 1973 as ‘individual who has endured hurt, either physical or mental injury, torment, financial misfortune or infringement of their freedom, through acts or oversights viewed as violative of Indian criminal regulations including those regulations that endorse criminal maltreatment of influence’. The U.N Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, on 29 November 1985 gave an extensive definition to the victim ‘as a person who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss, or substantial impairment of their fundamental rights, through acts or omissions that are in violations of criminal laws operative within member states, including those laws proscribing criminal abuse of power’.

INDIA’S CRIMINAL JUSTICE ADMINISTRATION SYSTEM

The law enforcement framework which India has adopted stems from what the British called the ‘adversarial legal system’. The working of the Indian law enforcement framework relies upon the four support points and these four points of support are police, prosecution, judiciary, and the correctional institutions. For fair and speedy outcomes, these four points of support need to work actually by coordinating one another. The two primary criminal laws of India are the Indian Penal Code, 1860 which characterizes the offense and gives its discipline and the other is Code of Criminal Procedure, 1973 which recommends the technique for examination, indictment, and a criminal preliminary. The middle has the ability to make regulations and change criminal regulations under the Seventh Schedule of the Indian Constitution. However, it is mostly catered to the rights of the accused and altogether ignores that of the victim in the delivery of justice.

DIFFERENCE BETWEEN THE RIGHTS OF THE ACCUSED AND THE VICTIM

There seems to be a mismatch when it comes to the protection of the accused and the victim. If anything, it appears that the Indian Criminal Justice System has more rights reserved for the accused. This includes different privileges, safeguards, and shields given by the Code of Criminal Procedural Law like the right against self-incrimination, the presumption of innocence, the right to legal assistance, and the others like the ‘right to fair trial’ such as the standard of proof beyond a reasonable doubt, right of the accused to be informed of charges before the trial and the right to a lawyer and be defended, etc. Even the accused is heavily guarded under Articles 20, 21, and 22 of the Constitution.

Thus, it has been said many times that the victim’s role is merely reduced to being a ‘witness’ and has limited rights during criminal proceedings. A case example can be Parvinder Kansal vs State of NCT of Delhi (2020), where the father of the deceased son gave an appeal to enhance the imprisonment sentence of the accused but it was denied on the ground that the victim does not have such right to do so regarding the present provisions in the CRPC. Prior to this, there were recommendations given by the Malimath Committee and the Law Commission, where the legislature inserted a provision in section 372 of the Code through the Amendment Act of 2008 to provide victims their right of appeal and again the National Commission of Women to seek enhancement of appeals.

RIGHTS FOR THE VICTIMS

The definition of the victim provided under the CRPC proves to be insufficient and restricted comparatively to one given by the UN Declaration adopted by the General Assembly. The rights defined for the victim under this includes access to justice and fair treatment, Compensation, Victim’s assistance inter alia, for countries to have a guideline to trace. But India’s system has barely been touching these minimal standards and norms.

It was after many studies about whether victims who have been compensated were satisfied or not like in cases of gang robbers, motor accidents, etc. Issues regarding women victim issues led to mobilizations and protests in the past years resulting in amendments and numerous organizations being formed and introduced like protection of women against acid attacks (Sec. 326A20 and 326B21), voyeurism (Sec. 345C), stalking (Sec. 345D) and sexual harassment (Sec. 345A), and expanded the definition of rape (Sec. 375) under the Indian Penal Code as an addition to the existing
the victim’s right to compensation.

CONCLUSION

Considering the fact that India follows a Common Law system where it is subjected to transformations based on the context and case situations, it is not surprising to determine that the accused is sometimes labeled as a ‘victim’, therefore multiple rights are conferred to them. Keeping that aside, the scenario of the accused having more rights than the victim itself should not be ignored where the system should give importance, if not more to the victim.

However, it is important that the system comes up with different acts and comprehensive plans and programs to cater to the needs of the victim. This can be done through emotional and financial assistance. The support points of law enforcement which are the police, lawyers and prosecutors, NGOs, etc. should be effective in their field of work and correct the flaw of delay. Corresponding to commendable actions taken by the system sometimes, more distributions should be made to the study of ‘victimology’ for expansion so that further steps can be ventured into protecting
the victims.

Written by Tingjin Marak, a student at Ajeenkya DY Patil University, Pune.

Women have always played an important role in our civilization’s growth. They are the ones who developed and are a large part of the societal norm. They shape entire generations. Any community’s lifeblood is its women. They are supposed to look after things with all of their hearts while expanding their proportions to assist society’s shared realm, whether at home, at work, or on vacation. In the anthropology group, they are believed to be the most trustworthy.
As a result, women have not been treated equally to men since ancient civilization till now. Men consider women as second-class citizens. They are in a bad situation.

They don’t even have access to constitutionally guaranteed fundamental human rights. Women themselves are terrified of speaking out about this issue for fear of being ostracised from society and denied access to food and other basic necessities if they do. The majority of the time, the issue comes out of a sense of fairness and freedom, when they are denied the opportunity to engage in activities that need independence and are traditionally reserved for males. Due to ill-intentioned and flawed cultural attitudes, Indian women have been prevented from going further and bringing out their personalities in a stronger way. When a woman goes out to look for work, she is regularly interrogated.

The freedom to govern religious issues is guaranteed by Article 26 of the Indian constitution. Every religious denomination or segment thereof, subject to public order, morals, and health shall have the right-To create and maintain religious and philanthropic institutions; to govern its own religious affairs; to own and acquire movable and immovable property and to administer such property in conformity with the law. These guarantees, however, are exclusively available to Indian nationals and not to foreigners.

These, on the other hand, are constitutional provisions that are generally thought to apply to men. Despite Indian constitutions assuring, women in India still do not enjoy the same freedom to participate in, maintain, and oversee religious institutions.

Equality of Opportunity

The right to equality is protected under Articles 14 to 18 of the Indian constitution, and it is widely recognized. “The state shall not refuse to any individual within the territory of India equality before the law or equal protection of the laws,” reads Article 14.

“The state shall not discriminate against any citizen solely on the basis of religion, race, caste, sex, place of birth, or any of them,” as per Art15.

In matters of public employment, Article 16 provides equal opportunity.

“Untouchability is abolished, and its practice in any form is prohibited,” according to Article 17. Except for military or intellectual differences, Article 18 prohibits the use of titles. It is unlawful to admit titles from different countries, such as knighthood.

Conflicts between religions over women

In all religious customs, rituals, and traditions women are always considered second-class citizens. Superstitions are still being followed till today, those superstitions which were believed back in the past. The condition of Indian women has always been a source of controversy.

Various factors, including religious fundamentalism and irrational concerns arising from the minds of conservative elements of society, have been mentioned for these restrictions. It prevents women from exercising their religious rights and excludes them from religious areas. For example, some elements of the temple’s management do not let women enter and worship deities because they believe that women were not allowed even 1500 years ago and that if they do so, the temple will be destroyed.

Because they are in their reproductive phase, women between the ages of 10 and 50 are impure. Menstruating women are not permitted to enter the shrine. These irrational beliefs ignore the genuine biological phenomena of menstruation, which assists women in becoming mothers.

These irrational and radical pessimistic ideas depict a patriarchal society in which men consider women to be adjutants to themselves. However, thanks to the efforts of Bhoomata brigade leader Tirupati Desai, prohibitions on women entering the temple have been eased in Shani Shingnapur and Haji Ali. This is a significant achievement made possible by women activists, and it has shed light on modern women’s inner strength, which had previously been hidden.

Conservatives still believe in superstitions and myths that were once believed. These fallacies continue to be scrutinized before women’s rights and respect. The priests believe that if the customs are modified, God will become enraged and the cosmos will fall apart as a result of God’s vengeance. Women’s boundaries are being pushed back by these pitiful notions, forcing them to live a life that is pointless. Inside temples and religious institutions, which are virtually entirely ruled by men, there is a great deal of corruption. The authorities believe that including women will have an impact on their unlawful money-making activities, and they will take harsh measures against them. In political drama, many political parties do not support women, believing that doing so would grant women the same status as men and would be completely antagonistic to the culture. Some male political leaders molest women, and they are afraid that if a female leader comes to power, she will expose their crimes and harm their so-called reputation. As a result, in order to overcome such serious issues that exist in society against women, we must enlighten male members of society and convince them that women, too, should have equal standing in all spheres and that there should be no discrimination based on gender. Even at home, we must empower them and instill a desire for women’s education.

References

1. Essay on Religious Liberty and Women Rights (upscbuddy.com)

This article is written by Vidushi Joshi student at UPES, Dehradun.

Kerala High Court on 6 August 2021, held that priests and nuns who work as teachers for educational institutions are liable to pay TDS (Tax Deduction at Source). This judgment was made scratching about 50 writ appeals.

The history of this issue can be dated back to 1944 when it was observed that all the priests and nuns are exempted from paying the TDS even if they work for government-aided institutions keeping in mind their poverty but this was changed in 2014. In 2014, it was ordered that the priests and nuns have to pay the TDS if they wish to work outside their religious congregations after which several appeals were filed in the Honorable High Court of Kerala where these appeals were dismissed by the Single Judge Bench and the appellants further went to the Honorable High Court of Kerala Division Judge Bench. The judges of the division bench were Justice SV Bhatti and Justice Bechu Kurian Thomas.

The Court held that the appeals only about the employees of the government and whose TDS is deducted are maintainable and not the ones where nuns and priests worked in their congregations and hence maximum pleas were scratched. It violates section 129 of the Income Tax Act if the TDS is not deducted from the employees of the educational institution irrespective of whether the salary is donated or utilized for personal use. The concept of civil death is not known and irrelevant to the Income Tax Act when argued that the priests and nuns live a life of poverty and in the end lead to civil death. The right to practice and profess any religion guaranteed under Article 25 of the Indian Constitution does not provide any immunity from taxation as it is subject to a legitimate law of the land.

Thus, the court once again proved that although the Fundamental Rights are guaranteed to everyone they are subject to reasonable restrictions by the state because of the public. Hence, the TDS system is non-violative of Article 25 of the Indian Constitution.

-Report by PREYANSI ANAND DESAI

A bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy of the Hon’ble Supreme Court granted the Centre a final opportunity to file its response on a plea seeking directions to allow eligible and willing female candidates to join National Defence Academy(NDA), appear for the Naval Academy Examination and train at the National Defence Academy.

Petitioner Kush Kalra represented by Senior advocate Chinmoy Pradip Sharma said that the UPSC had issued a notice on June 9 declaring the date of exams for admission to the military force wings of the NDA. One of the eligibility criteria of a candidate applying for the examination is that the person shall be an unmarried male. This condition excludes female candidates willing to join the academy. While male candidates with a 10+2 level of education are considered eligible to sit for the examinations, female candidates with the same level of education are considered ineligible for the same.

The plea stated that the notice is a violation of Articles 14, 15, 16, and 19 of the Constitution. It also said that the NDA denies admission solely based on gender without a justifiable explanation which is a violation of the fundamental rights of equality before the law and equal protection of the law.

It was in the case of Secretary( Ministry of Defence) v. Babita Puniya that the Supreme Court had unequivocally stated that a woman’s gender roles or her physiological characteristics have no bearing on her equal rights guaranteed under the Indian Constitution.

Previously, A Public Interest Litigation was filed by advocate Kush Kalra on 10th March this year challenging the exclusion of women candidates from applying or entering the National Defence Academy and Naval Academy. A three-judge bench headed by the erstwhile Chief Justice of India S.A. Bobde had issued a notice to the Ministry of Defence, Department of Defence, and the NDA.

The bench has listed the matter to August 18 to consider it for interim relief and has asked the Centre to file its response within two weeks.

-Report by VANESSA RODRIGUES

In response to a lawyer’s petition contesting the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, the Delhi High Court today requested the Central government’s answer (IT Rules, 2021). Uday Bedi, a practising lawyer, filed a petition alleging that the new IT Rules violate basic rights to free expression and privacy. The Union Ministry of Electronics and Information Technology has been served with a notice by the Court (MEITY). The case is set to be heard on September 13th.

Bedi claims that the new IT Rules violate his basic rights as a user of social media intermediaries (SMIs) including WhatsApp, Instagram, and Twitter. The challenged Rules are said to violate the Indian Constitution’s Articles 14 (right to equality, including the right against arbitrariness), 19 (freedom of speech and expression), and 21 (right to life and personal liberty, which is understood to include the right to privacy). News portals The Wire, The Quint, and AltNews, as well as the Press Trust of India, have challenged the IT Rules, 2021 in the Delhi High Court. The High Court earlier this month denied interim relief in cases brought by The Wire, The Quint, and AltNews while giving the Central government and other respondents time to respond to the claims.

Other challenges challenging the IT Rules have been filed in the Madras, Kerala, and Bombay High Courts. Because there are several petitions on the subject. The Centre has also filed a transfer petition with the Supreme Court, requesting that all matters be considered there. The Supreme Court, on the other hand, has yet to order a stay on any of the High Court actions.

-Report by ESHAN SHARMA