Legislative Acts of death penalty

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

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

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

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

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

Capital punishment present as a penalty in legislative acts:

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

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

Validity of the death penalty

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

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

Criteria for rarest of rare case

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

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

Clemency Powers

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

International Scenario

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

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

Conclusion

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

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

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

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Introduction

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

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

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

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

Remarkable Sedition Trials Of All Time: 

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

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

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

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

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

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

Sedition Law As A State-Protection Mechanism:

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

Sedition Law As Colonial Oppressive Tool:

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

Reference To Landmark Judgements:

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

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

Conclusion:

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

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

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

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Abstract – The article will make the readers conscious of the heinous act, i.e., the domestic violence in India. The article talks about the rising cases of domestic violence during the lockdown in West Bengal and the role of the West Bengal Women’s Commission in curbing such menace.

INTRODUCTION

In India, domestic violence against women is dominantly prevalent, that is tried to conceal. We live in a patriarchal society where one in every three women is subject to domestic violence. According to a research, 45 percent of women in India are subjected to violence by their spouses. Domestic abuse is a largely unseen crime that occurs mostly behind closed doors.

During the lockdown, West Bengal saw an increase in domestic violence cases. Many women were subjected to domestic violence and physical abuse. Women had previously faced physical assaults, but the lockdown had exacerbated and worsened the situation.

Since the imposition of lockdown, more than seventy domestic violence cases have been reported to the commission. The number of complaints received during this period was higher than in the months preceding the lockdown.

Analysis

According to the state women’s commission, domestic violence cases in West Bengal have increased during the lockdown. Since the lockdown was imposed, the commission has witnessed a surge in reports of domestic violence. The complaints came from all over the state, in both rural and urban areas, including Kolkata.

National and International laws

Protection of Women against Domestic Violence Act 2005

 This Act was promulgated to protect women against physical, sexual, and emotional abuses, all of which are widely specified under the Act. The Act not only talks about the protection of married women, but also women who are in live-in relationships with men. It is a must that woman should be free from all forms of violence. 

Section 498 of IPC

“Whoever takes or entices away from any woman who is and whom he knows or has reason to believe is the wife of another man, from that man, or any person caring for her on behalf of that man, with the intent that she may have illicit intercourse with any person, or conceals or detains any such woman with that intent, shall be punished with imprisonment of either description for a period which may extend to two years, or with fine, or with both.”

Dowry prohibition Act, 1961

 Anyone who provides, accepts or even asks dowry can be imprisoned for a half-year (i.e., six months) or fined up to Five Thousand Rupees under this rule.

CEDAW

CEDAW adopts a three-dimensional and practical approach based on the concept of substantive equality or gender equality. This goes beyond equal opportunity and legal language to consider the current state of women’s lives as the actual litmus test for whether or not equality has been attained.

The media still does not play an influential role in minimizing domestic violence against women. They fail to cover the incidents and spread those to the mass, taking place every day in the marginalized communities. Because the media serves as society’s eyes, ears, and limbs, it has the potential to significantly reduce violence against women.

ROLE OF MEDIA IN COVERING THESE ISSUES

The role of media should be to expose the shades of malice and spread awareness about the rights of the women. The media needs to be aware of the violence directed against women. Indeed, many women have said that the media’s coverage of an assault or other form of brutality resembled a second attack due to the insensitivity with which they used images, published names, and other invasions of privacy.

The media’s involvement in the issues of violence against women is essential both in terms of how it covers the matter and in terms of how it may be utilized to assist activists and governments in raising awareness and implementing necessary programme.

In general, the media lacks in instilling an extensive awareness of domestic violence in the public. As a result, many scholars believe that media portrayals of domestic violence are part of a hegemonic patriarchal worldview that obscures both the issue of domestic violence and the underlying social processes that generate it.

Case Laws

S.R Batra and Anr v. Smt. Taruna Batra

 Referring to Sec17(1), 4Sec2(S) Of Domestic Violence Act, the Supreme Court held that:

Only the wife has the right to live in a joint household.

A house owned by a husband, a house rented by a husband, or a house that belongs to a husband’s joint family is considered a shared home.

The judgement further noted that, under section 19(1)(f) of the act, the claim for alternative accommodation may only be raised against the spouse and not against his in-laws or other relatives.

As a result of the facts of the case, it was determined that the wife could not claim a right of residency in the property belonging to her mother-in-law.

Dr Velusamy v.  Patchaiammal

The court noted that the Act’s definition of “domestic relationship” in section 5 sec 2(f) includes not just marriage but also a relation “like marriage” in this case.

Because the term “relationship like marriage” isn’t defined in the Act, the court clarified its meaning. According to the court, not all living relationships qualify as “relationships like marriage,” which must meet the following criteria. In addition, the parties must have lived together in a “shared household.”

The couple must exhibit themselves as husband and wife to the rest of society. To marry, they must be of legal age. To engage in lawful marriage, they must meet all other requirements, including being unmarried.

Conclusion

The government must develop a comprehensive strategy and allocate sufficient funds to provide support services to survivors, ensure the application of domestic violence laws, and conduct public awareness campaigns emphasizing that domestic violence is a crime and that the state will take strict action against it. The judicial system must become more active and effective in bringing justice to victims and sufferers.

This blog is written by Shruti Bose, studying at Christ (Deemed to be University), Lavasa

Edited by Deeksha Arora.

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Kirechandra Wangkhemcha and Kanhaiyalal Shukla, two journalists from Manipur and Chhattisgarh, filed writ petitions at the Supreme Court requesting the court for a writ, order, or direction ordering Section 124A of the Indian Penal Code, 1860, to be ruled unconstitutional and void. Counsel representing the two petitioners submitted to the Supreme Court that its decision in Kedar Nath Singh v. State of Bihar, 1962, may need to be reconsidered wherein the constitutional validity of the section was upheld.

Section 124A of the Indian Penal Code states that anyone who seeks to incite hatred or contempt for the government established by law in India through words, whether spoken or written, signs or visible representation, or any other means, shall be punished with imprisonment for life.

According to the petition, the restriction imposed by section 124A is irrational, hence, does not constitute a valid restriction under Article 19(2) of the Constitution. It infringes the fundamental right guaranteed by Article 19(1)(a) of the Constitution of India, which guarantees that all citizens shall have the right to freedom of speech and expression. Section 124A is extraneous to safeguard state security and public order.

Meanwhile, the Foundation of Media Professionals, journalist Shashi Kumar, and legal professor Sanjay S Jain have filed three applications in support of the petition challenging the constitutional validity of Section 124A of the IPC. According to Shashi Kumar in his application, the “vague nature” of section 124A allows it to be used as a “political weapon” to restrict free speech.

Attorney General KK Venugopal of India, who was issued notice on the petition by the court on April 30, and Solicitor General Tushar Mehta, who was representing the Union of India, both were granted two weeks to file their responses. The court will hear the matter on the 27th of July.

-Report by VANESSA RODRIGUES

Introduction

Sustainable Development is defined as “to meet the needs of the present without compromising the ability of Future Generation to meet their own needs”. The concept came into the picture after the International Conference in Stockholm in 1972. It contains three aspects- 1.environment which includes biodiversity, air, land, plants, animals, etc.,2. Economy i.e. income and money employment trade, business, etc., 3.Society, includes education, health, security, peace, and equal opportunities.  To meet this concept this compelled the legislature to make rules, guidelines, and legal provisions on the same. Further, these provisions brought the judiciary to set precedents against such degradation of the environment. The Supreme Court in various landmark cases highlighted the importance of controlling public actions to protect the environment through legal processes, statutes, and punishments. This article explores the legal regime of environment protection through Indian Jurisprudence.

Environment Preservation vis-a-vis  Development

For a Developing country like India, Economic development clashes several times with environmental preservation. Moreover to achieve sustainable development courts follow only the principle to clean the existing pollution and not focus on precautionary principle to preserve the environment by further laying down rules and regulations which may prevent pollution, which can be construed by courts various decisions which focus on the polluter pays principle rather than precautionary principle. 

To support the above contention the landmark case of Narmada Bachao Andolan is apt. In this case, the height of Sardar Sarovar Dam was to be increased which would have affected the local people, their livelihood would have been lost, and a further lot of species of plants and animals would have been submerged. The Supreme Court held that local people should be given a better place of livelihood but construction would take place as it was important for the development of that place. This judgment portrays that Environment Development is important keeping Environment concerns in view.

Sustainable Development Precedents  

In India, the Sustainable development concept came into light with the case of the Vellore Citizens Welfare Forum. In this case, the tanneries in Tamil Nadu were releasing harmful untreated effluents into water bodies, agricultural fields, and roads as well. The river named Palar there was highly polluted due to these effluents making a scarcity of potable water, and not only this it also polluted over thirty thousand hectares of land engaged in agricultural activities. The Supreme Court held Tanneries owners liable and stated that the principle of polluter pay is an integral part of the Constitution.

Supreme Court of India

Taj Trapezium case, in this case, refineries of Mathura’s use of coal and also because of vehicles emissions which lead to the release of SO2 mixing with water in rainy seasons making it an Acid rain resulting in corrosion of Taj, turning white marble yellowish, was banned. A Bhuleral Committee was also set up which recommended the use of CNG. Oleum Gas Leak Case in which Absolute and Public Liability evolved.  Another case was filed by M.C. Mehta in which several polluting tanneries were ordered to be closed to save water of river Ganga. Court-ordered tanneries to come up with a proper set treatment plant.

Through the case of Murli Deora Smoking was banned in public places.

Other Courts

Landmark cases laying precedent on environment protection and maintaining sustainable development. Rural Litigation & Entitlement Kendra cases– also known as Dehradun Mussoorie Hills quarrying Case. The court observed that quarrying of limestone results in excessive soil erosion and therefore, there is a need to maintain a balance between Environmental & Ecological Integrity.  AP pollution control board caseIn this case, the precautionary principle was established. Church of God in India case. In this case, noise Pollution was also given recognition.

Provisions on Environment Protection

Constitution of India

Constitutional guidelines on right to wholesome Environment- Evolution of Application, Relevant provisions are given under Articles 14, 19(1)(g), 21, 48 (A), 51(A)(g) of the Indian Constitution.

42nd Amendment – Article 48(A)- states about Protection & improvement of Environment & safeguarding forests and wildlife.

Article 51(A)(g)- Fundamental duty to protect & improve the natural environment…living creatures.

List III- Concurrent List– provides Indian parliament power to legislate on subjects on man-made an increase of pollution and environment degradation.

Other Legislations

Under Article 253 of the Indian constitution- legislation for giving effect to International Law. Through which certain legislations inspired by an International Conference in Stockholm 1972 were implemented, such as Water Act 1974, Air Act 1981, Environment Protection Act, 1986, Forest Act1927, Wild Life Protection Act, 1972, etc.

Provisions under  Code of Civil proceduresection 91- Reservoir for class action suits against environmental Law. J. C. Galstaun case – one of the earliest cases on environmental pollution in India.  The Case is important because it shows how the common law regulatory system can check polluters in a pre-industrialized society.

Indian Penal Code– There are various sections of the Code related to environment nuisance and its punishments, some of them are-

Section 277– fouling Water of public Spring or Reservoir

Section 278– Making atmosphere noxious to health.

Section 284–  Negligent conduct concerning poisonous substances.

And many more.

Provision under Code of Criminal Proceduresection 133– Conditional order for removal of the nuisance.

National Green Tribunal

It is a body specially designed to deal with the cases of Environment protection. India is the 3rd country in the world to make such a body for robust and effective disposal of cases related to the environment. Landmark cases held by NGT are- recently in 2017 in Delhi NGT imposed a ban on plastic bags containing less than fifty microns. In the 2012 Almirtra H. Patel case, NGT prohibited the open burning of wastes on the land surfaces.

However, NGT faces various challenges like the supremacy of the High Court, criticisms on various judgments of NGT which caused repercussions on the environment, the pendency of cases due to lack of judges and financial assistance, which fails the purpose of establishing such a Tribunal.

International Law

Sustainable Development targets cannot be the same for every country as every country is on a different stage of acquiring it. Some have to achieve more whereas some have to achieve less, according to the altogether vision in view to preserve resources of the world at large. Therefore, to meet such vision internationally major summits held are stated below-

  1. Stockholm conference -focused on biodiversity and environment to secure a healthy environment for humans present as well as the future.
  2. United Nations Commission on Environment and development- plays an important role to protect Environment, in its Brundtland Report defined sustainable development to acquire environmental protection, Economic Growth and social equity.
  3. Rio Declaration- introduced principles on biodiversity, climate change and forest management.
  4. United Nations conference on Sustainable Development 2012- adopted eight Sustainable Development goals to be achieved by 2030.

Article 253 of the Indian Constitution states Legislation for giving effect to International Agreements.

Conclusion

Many times, Economic development wins over Environment Degradation. India is a developing country which makes it concerned to become one of the developed countries concerning the economy, technology, Industry, etc., basically, every such thing which degrades the environment resources. Therefore, in various cases, Economic development supersedes Environment preservation. Independence and accountability are also important aspects to acquire Sustainable Development by Judiciary. Implementing legislation, regulatory authority by a specialized body that is NGT may make the dream of Sustainable Development possible which enhances the environmental law regime in the country. 

The article has been written by Aakrati Thakur, pursuing BBA Ll. B 3rd Year in Delhi Metropolitan Education, Noida, GGSIPU.

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Case Number 

Appeal (crl.) 240 of 1997

Equivalent Citation

2004 (1) SCR 1155

Bench

V. N. KHARE CJ , S.B. SINHA , S.H. KAPADIA

Decided On

28/01/2004

Relevant Act/ Section

The Indian Penal Code – Section 509

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 1989 Act) – Section 3(i)(xi)

The Code of Criminal Procedure (CrPC) – Section 482

Article 341 & Article 342 of The Indian Constitution

The Constitution (Scheduled Tribes) Order, 1950

The Constitution (Scheduled Castes)[(Union Territories)] Order, 1951

Brief Facts and Procedural History 

The President of the Pattambi Congress Mandlam, Ramachandran, lodged an FIR against the respondent under Section 509 of the IPC. The respondent took Elizabeth P. Kora, an 8-year-old girl, to a classroom in the Pattambi Government U.P. School with an intention to outrage the modesty. The father of the victim belonged to the Mala Aryan Community (Scheduled Tribe in Kerala), so another FIR was filed under Section 3(i)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Chief Judicial Magistrate summoned the respondent based on the charges. Aggrieved respondent under Section 482 of CrPC filed a petition asking to quash the charges framed under Section 3(i)(xi).

The High Court held that the victim ceased to be a member of the Scheduled Tribe as her parents have converted to Christianity. The High Court repressed the charges under Section 3(i)(xi).

Issues Before the Court

Whether the person continues to be a member of a Scheduled Castes and Tribes after he embraces another religion?

Ratio of the Case

The appellant had shown through circulars issued by the State of Kerala that despite converting into other religions, tribes treated their members in the same way as they did before. An argument has been made that the victim’s family does not fall in the category of the Scheduled Tribes, as they are embracing Christianity for 200 years. The caste system is a feature of Hindu society and, if a person renounces Hinduism, he also ceases to be a member of the caste.

The Madras High Court held that a person professing a religion other than Hinduism could be a member of a caste. It is possible where a caste is not based on religion but on economic and occupational characteristics. In South India, some caste accepts a person being a member of a caste even after conversion.  

The Andhra Pradesh High Court held that the person could be governed by a different law than the law governing his community. However, this does not cease him to be a member of the caste he belongs.

Decision of the Court

The Court held that as a broad proposition of law, it cannot be accepted that a person ceases to be a member of the Scheduled Tribes merely by conversion into another religion. The facts of the cases can determine whether the person ceases to be a member of the Scheduled Tribes. The court needs to see whether the person who changed his religion continues to suffer from a social disability. And if he follows the rules, customs, and the tradition of the community he belonged to? 

This Case Analysis is written by Gracy Singh, a student of 2nd Year BA.LLB (Hons.) from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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The Trial Court has no authority to question the High Court order. Recently this incident took place in Maharashtra after Bombay High Court was observed pulling up a trial court for refusing to release the applicant on bail despite the directions made by the High Court order.

Justice Sarang Kotwal had recently granted bail to the applicant Gulfasha Sheikh on June 18 2021 after the court noted that she had been in jail since November with her 10-month-old child. Despite the directions from Justice Kotwal. The Advocate of applicant Aniket Vagal approached Justice for an urgent hearing after the trial court refused to accept the bail due to which the applicant was not released.

The advocate of applicant Aniket Vagal submitted that the trial court refused to grant bail to the applicant. As the High Court refused to record section 302 of the Indian penal code which was one of the charges of the applicant. Justice termed this as a serious breach of the order. He also said that the trial court should follow the orders given by High Courts and Supreme Court.

He also added that the trial court refused to grant bail to the applicant affected the valuable right of getting bail at the earliest and the applicant also suffered in jail for more period than it was necessary when she has a 10-month-old child with her.

-Report by ANAND PATIL

Case Number 

Criminal Appeal No. 71 of 2012

Bench

Hon’ble Justices Ranjan Gogoi, L. Nageswara Rao, Sanjay Kishan Kaul

Date of Judgment 

09 April 2019

Relevant Section 

Section 177 (CrPc), Section 178 (CrPc), Section 179 (CrPc), 498A (IPC)

Facts of the Case 

  • Marriage of petitioner and respondent: December, 1997

In December of 1997, the petitioner, who had her parents’ home in Deoria, Uttar Pradesh, married respondent no.2, who used to dwell in Mau with his family. Sufficient cash and dowry articles were given at the time of marriage, but the accused persons were not content and began harassing and maltreating the petitioner in her Sasural on account of a demand for Rs. 2 lacs in cash and a car. She told her father about it as well. Her father traveled to Mau and attempted to reason with the accused, who were resolute in their demand.

  • Petitioner gave birth to a child: 12 May, 1998

The petitioner gave birth to a son on 12.5.1998, who is now 7 years old. The petitioner’s harassment continued even after the birth of a son. When she became pregnant again, the accused admitted her to Dr. Saxena’s Ladies Clinic in Mau and forcibly terminated her.

  • Petitioner thrown out of Matrimonial home (Mau): July 2002

The petitioner was ejected from her matrimonial home in July 2002, and the accused individuals kept the male kid with them. Her father drove her to Deoria and tried unsuccessfully to appease the accused.

  • Petitioner went back to her matrimonial house: 14 April 2005

The accused persons, accompanied by certain Mau responsible persons, came to the petitioner’s house in Deoria on 14.4.2005 at about 4:00 p.m. for a compromise and expressed their desire to take the petitioner with them. After some hesitation, the petitioner returned to her sasural, but when she arrived, she discovered that a stranger woman was also living with the accused’s family, and upon more investigation, it was discovered that she was the petitioner’s husband’s second wife. When the petitioner objected, the accused beat her, locked her in a room, and forced her to sign blank papers.

  • Petitioner again turned out of Matrimonial house:27 May 2005

On 27.5.2005, the petitioner was kicked out of their house after signing divorce papers. The petitioner travelled to Deoria and told her father everything that had happened.

  • Petitioner lodged an F.I.R at Police Station Kotwali, Deoria: 17 September 2005

On September 17, 2005, petitioner filed an F.I.R. against respondent at Police Station Kotwali, Deoria, alleging violations of Sections 498A, 494, 313, and 504 of the Indian Penal Code.

Issues Raised

Rupali Devi vs. the State of Rajasthan has set a precedent for determining whether a woman forced to leave her matrimonial home due to acts of cruelty can initiate and access the legal process within the jurisdiction of the courts where she is forced to seek refuge with her parents or other family members.

Judgment

The Hon’ble Supreme Court concluded that Section 178 offers an exception to the “ordinary rule” engrafted in Section 177 by allowing courts in another local area to take cognizance of the offense. In addition, if an offense committed in one locality is repeated in another, the courts in the latter location are competent to hear the case. If an offense is committed in another jurisdiction as a result of the consequences of a criminal act, the court in that jurisdiction is likewise competent to take cognizance under Section 179. As a result, if an offense is committed in part in one location and part in another, the exception to the “ordinary rule” would be attracted if the offense is a continuing offense or if the consequences of a criminal act result in an offense being committed at a different location, and the courts within whose jurisdiction the criminal act is committed would lose exclusive jurisdiction to try the offense.

The Supreme Court accepted the appeal and overturned the High Court’s acquittal. It found the respondent guilty of the offense punishable under Section 498A of the Indian Penal Code and held that the courts in the location where the wife seeks refuge after fleeing or being driven from the matrimonial home due to acts of cruelty committed by the husband or his relatives also have jurisdiction to hear a complaint alleging commission of offenses under Section 498A of the Indian Penal Code.

Critical Analysis

It is to be commended that the Supreme Court has said explicitly that women can file criminal charges related to cruelty from the location where they have sought refuge after leaving or being pushed out of their matrimonial home. The Supreme Court ruled that Section 498A of the Indian Penal Code (IPC) covers both the wife’s mental and physical health. Even if a wife leaves her matrimonial home and returns to her parental home, the acts performed by the husband in the matrimonial home that constitute cruelty within the meaning of Section 498A can have negative consequences for her mental health in the parental home.

This Supreme Court ruling was necessary to prevent the rising number of cases of cruelty and domestic abuse directed at women, which result in suicides or serious injuries. The vulnerable women who are habitually beaten and tortured by their husbands and husband’s family members would be protected by the Hon’ble court’s decision.

This case analysis is written by Sanjana Suman student of Amity Law School, Amity University Jharkhand Ranchi.

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On June 10, 2021, a fifty-year-old Sajad Rashid Sofi reportedly made a comment at a Janata Darbaar saying that he has no expectations from the non-local police officers posted in Jammu & Kashmir. The accused is said to have made the comment during an interaction with locals at Mansbal in Central Kashmir and has reportedly created panic and enmity between groups.

Sofi was arrested by the Jammu & Kashmir police under Section 153-A of the Indian Penal Code for promoting enmity between groups. To this, Sofi proceeded to move a bail application before the court of the Judicial Magistrate, Ganderbal.

The bench of Judge Fakhr Un Nissa, on June 12, granted interim bail to Sofi till June 21, 2021, subject to various conditions. However, the police kept him under preventive detention, claiming that he was a potential “threat to peace” and that he could harass the witness and obstruct the investigation.

The legal counsel of the applicant submitted that he has been falsely implicated in a frivolous case, of which he does not know of. He further stated that the applicant is the only source of earning for his family and if not released on bail, the family will die of starvation. Sofi’s advocate further ensured the court that Sofi will not harm or tamper with any part of the investigation.

The prosecution contended that the accused is involved in a non-bailable offence and thus, the accused is not entitled to bail as a matter of right. He further stated that there of credible evidence available against the accused and the concession of bail in the favour of the accused will harm the investigation.

On June 15th, the court stated that bail is a rule and its rejection is an exception. Bail in a non-bailable offence cannot be refused without supporting it with a strong reason although bail is ultimately at the discretion of the court. The court further stated that it has sufficient reason to exercise discretion of bail in favor of the applicant and granted interim bail up to 21st June, provided that he will furnish surety and personal bonds before the SHO concerned.

-Report by Anuj Dhar

Actor Pearl V Puri who is been accused of raping a five-year child has been granted bail on Tuesday from Judicial custody. Earlier his bail plea was rejected by the Vasai court.

Peral V puri is an actor who has done various Ekta Kappors shows. He is accused of raping a minor girl back in 2019 on the sets of Bepanah Pyaar. The victim is his co-actor Ekta Sharma’s daughter. The victim’s father alleged charges on him for raping his minor when the victim herself told his father that the actor had touched her private parts. So on 4th June 2021, Puri was arrested for 14 days of judicial Custody. After which he applied for bail.

The charges which are levied are Section 376 AB of IPC which says Whoever, except in the cases provided for in subsection (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not the less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine. And Section 4,8,12, 19 21 of POCSO Act the Protection of Children from Sexual Offences Act, 2012 (POCSO) is enacted with the main objective of protecting children from various kinds of sexual abuses and offences.

The hearing for bail application has been held thrice in session court of Vasai and on Tuesday Judge Aditi Kadm Granted him bail on a cash surety of Rs. 25,000/-.

-Report by Riddhi Dubey