Tag: lawblogs

INTRODUCTION

One of the most rewarding aspects of media outlets is reflected in video games. Every year, consumers spend over $25 billion to enjoy the interactions that teams of writers, organizers, and programmers have. With so much in doubt, it makes sense for the companies that create these video games to want to provide the best legal protection for their products. Copyright laws give video game developers the judicious right to reproduce, market, and turn off products based on their game’s code, characters, images, and exchange. Understanding the material legal structure is necessary given the ongoing, dynamic growth of the video game industry and the growing revenue it generates, which is now equal to the size of the film industry and outpacing the music industry in terms of overall revenue.

This article focuses on examining the relevant national legislation in order to provide video game engineers with information on the main current legitimate openings for the security of their rights and interests during the creation of a video game and its subsequent use and distribution. The video game market is worth many billions of dollars. As of 2018, the global gaming market was worth $137.9 billion, with roughly half of all revenues coming from mobile devices. It’s also important to note that after India’s national lockdown began, the founder of Ludo King reported a jump in active users from 13 million to 50 million. But as video games grow in popularity, there is also an increase in issues with infringement in this industry, and there are many different aspects of copyright that need to be taken into account in this regard.

They consist of songs, scripts for movies, stories, videos, artwork, and characters. Video games are therefore not made as single, straightforward works but rather as a collection of various elements, each of which can be copyrighted provided it reaches a certain level of originality and inventiveness (e.g., the characters in a video game, its soundtrack, settings, audio-visual parts, etc.). A video game’s main features, such as its plot, characters, audio-visuals, graphics, and some of the code, may be protected under various categories of “works” as defined by section 14 of the Copyright Act of 1957. Since the numerous categories of works protected by copyright are outlined in Article 2 of the Berne Convention for the Protection of Literary and Artistic Works, video games may also be covered by this provision.

BACKGROUND OF PUBG VS. FORTNITE CASE

The makers of Player Unknown’s Battlegrounds (“PUBG”), Bluehole, sued Epic Games, the developer of Fortnite, in South Korea at the start of 2018 for copyright infringement. Because some elements of the new Fortnite resembled those of PUBG, Bluehole claimed that Epic Games was responsible for copyright infringement. It was asserted that without contributing anything new to the genre, Fortnite simply duplicates the gameplay of PUBG. The genre in question is battle royale, a game mode based on a Japanese movie of the same name, in which a group of teenagers is coerced into a deathmatch by the government. Midway through the year, Bluehole abandoned its lawsuit against Epic Games. On the other hand, the dispute between PUBG and Fortnite brought up a crucial issue: can a genre be copyrighted?

COPYRIGHT CONTENTS IN A GAME

A video game is made up of a variety of elements that combine to create the experience we as players have. All of the elements are contained in the software coding that creates a game’s user interface. Although copyright is already granted for software coding, other works created for video games, such as character designs, storylines, and scripts, may also be protected by copyright. No theme or concept depicted in a game can be copyrighted, as this is the general rule of copyright, which states that only its expression in literary, artistic, or musical form can invoke copyright protection. However, contents that are part of the video game are copyrightable. This is crucial to comprehend because, while a soldier character from a game based on World War I could be copyrighted, neither another soldier character from a game nor a game based on World War II could be restricted.

CASE LAWS

The Supreme Court of India ruled in the case of RG Anand v. Deluxe Films¹ that the film could not be held to have violated the screenplay of the play. The justification offered was that although the concepts behind the script and the movie were the same, how they were expressed was very different. Therefore, it cannot be regarded as a copyright infraction. In the case of Mansoob Haider v. Yashraj Films², the Bombay High Court reiterated that ideas are not protected by copyright. The similarity of ideas does not indicate a copyright violation because after removing differences, the remaining idea is not protected by the law.

The landmark American case Baker v. Selden³ established the idea-expression divide. Selden asserted ownership of the copyright for the fundamental accounting method he created and used in the book. Selden wanted copyright for his ideas, but he never asked for it for the first sentence of the book. The Supreme Court ruled that copyright can only be granted to the expressions and not the underlying theory, and that it cannot be extended to the “ideas” and “art” used in the book.

GENERAL RULE OF COPYRIGHT PROTECTION

It should be noted that gameplay refers to the combination of game mechanics, rules, objectives, impediments, rewards, and punishments used in a particular video game and made visible through the various media shows produced when the player interacts with the game. It becomes essential to find a reasonable balance between the right of initiation and the continued advancement of masterpieces by granting reasonable copyright protection against encroachments from gameplay. An idea, theme, or concept depicted in a game cannot be protected by copyright, but the contents that are included in the video game can.

The idea versus expression doctrine states that only the literary, artistic, or musical expression of an idea, theme, or concept may be protected by copyright. The genre of a video game is an idea, not an expression, and copyright only safeguards the original manifestation of an idea—not the idea itself. We would be restricted to a small number of first-person shooters, role-playing games, racing games, and so forth if genres could be copyrighted, which would be restrictive for both developers and players. By granting a monopoly to the copyright holder, asserting copyright over ideas will further disrupt the market’s flow because only a small number of people will have total control.

ANALYSIS OF PUBG v FORTNITE

Returning to the PUBG vs. Fortnite debate, the only criticism levelled at Fortnite was that it was created by Epic Games as a Battle Royale game. The concept of the Battle Royale genre is not new. In reality, it is based on the renowned Japanese movie “Battle Royale,” in which a despotic government imprisons a large number of high school students on an island, arms them, and orders them to kill one another until there is only one left. Even though PUBG’s developers may have released their battle royale video game before Epic, they cannot stop Epic or anyone else from developing their own interpretation of the idea, provided that there aren’t too many similarities to clone PUBG’s distinctive expression. The reason why Epic’s take on the genre differs so much from Bluehole’s is because of the company’s unique perspective on it.

The video games Fortnite and PUBG are very dissimilar. Both games have distinctive visual styles. Based on screenshots from PUBG, it might be challenging to tell it apart from other gritty, realistic shooting games because of its appearance. The colors in the game are typically earthy tones, the weapons look almost exactly like their real-life counterparts, and the clothing you can find by looting buildings is roughly what you’d expect to find in a hastily abandoned home. The realistic, battle-worn appearance is ideal because the game is meant to be intense. On the other hand, Fortnite has a very stylized appearance that embraces its computer-generated nature rather than trying to hide it.

In Epic Games in-house, you’ll find dozens of employees working on everything from the cross-platform functionality to the massive amount of artwork needed to make it all look as good as it does. The design is entirely cartoon-like, the colors are outrageously vivid, and the weaponry is absurdly overdone. While PUBG is an open battleground with 100 players hosted at once on a single server, with players collecting weapons, medical aid, driving cars, and in-game bombings with game restrictions, Fortnite includes a building mechanic with resource collection to build forts, bridges, and other structures to protect the player from bullets. These gameplay differences set apart both games and do not, therefore, violate the copyright of the PUBG developers.

CONCLUSION

Copyright infringement can occur if the overall idea of the game is expressed in too many similar ways, especially if there are other ways to express the same idea. Most creators are able to minimize their copying of a specific genre’s concepts and rules while also adding their own innovative expressive features. In other words, you could be copying the gameplay and idea, but you wouldn’t be liable for copyright infringement because it would be considered your expression of that genre, as you are replicating other games within the same genre but adding your twist on it, such as adding artistic graphic elements and creating unique characters that set the game apart.

CITATIONS

1. AIR 1978 SC 1613.

2. 2014 (59) PTC 292.

3. 101 U.S. 99 (1879).

This article is written by Sanskar Garg, a last year student of School of Law, Devi Ahilya University, Indore.

INTRODUCTION

Gender inequality in India evinces itself in a diversities of ways, but the most prevalent is in the area of legitimate property rights. Numerous laws have been eventuated to abolish women’s economic beliefs and furnished their high status and equality. In addition, the Constitution of India establishes equality, invigorating women’s property rights and ingress to economic resources. Despite all of this, the affairs of women remain consistent due to a lack of education and knowledge, and non-compliance with the rights of women’s law. Due to family norms, societal humiliation, and related prospects, even women themselves are not so much interested in executing their rights. The empowerment of Indian Women by Dr. Babasaheb Ambedkar invariably convinced movements headed by women.

He persisted that every married woman must participate in her husband’s activities as a friend. But she ought to show the audacity to contradict the life of slaves. She should hold on to the rules of equality. If every woman sticks to it, she will acquire genuine respect and recognition. He said, “We shall have good days ahead and our progression will be greatly hastened if male learning is persuaded side by side with female learning ”. He initiated a strong gesture against the Hindu social order and introduced a journal Mook Nayak in 1920 and Bahiskrit Bharat in 1927. He laid due emphasis on gender equality and the demand for education. In January 1928, a women’s organization was established in Bombay with Ramabai, Ambedkar’s wife (president). The emboldened Dr. Ambedkar empowered women to express themselves, it was glimpsed when Radhabai Vadale addressed a press conference in 1931.

MARRIAGE AND DIVORCE LAW

According to Vedas, a Hindu marriage is an imperishable alliance till eternity. It is known as a fusion of “flesh with flesh, skin with skin and bones with bones, the husband and wife grace as if they were a single person. The Hindu Marriage Act, of 1955 has eliminated these imbalances to a large stretch. It has created monogamy the principle for both men and women. A woman can break down her marriage and easily enter into another marriage as per to law. The Hindu Marriage Act, of 1955 has specified the causes for divorce. The Hindu Marriage Act, 1955 Section 5 lays down the circumstances for marriage. It opines that both parties to the marriage should have the position to obtain consent to the marriage.

The Hindu marriage is a sacrament; sacred and eternal. It is perpetual and pursues life cause she can’t have a second husband even after his demise. Husband and wife become individual as she cannot have any originality of her own. But the husband could set his foot into the sacramental crimp of marriage many numbers of times because polygamy was not banned under Hindu law before the enforcement of the Hindu Marriage Act, 1955. However, the views regarding the nature of Hindu marriage are evolving.

LAW OF ADOPTION

The law of adoption in the ancient Hindu tradition is different from one creed to another. The Hindu Adoption and Maintenance Act, of 1956 established uniformity in the principle of adoption among Hindus. A Hindu woman was empowered to adopt a child only under exquisite circumstances under the Shastric Hindu Law. The women’s rights to adopt a child were restricted. Through the Hindu Adoption and Maintenance Act, 1956 the authorization of a woman to adopt a child is granted, but bigotry against women continues. A married man can adopt but a married woman can’t during the maintenance of the marriage under the Hindu Adoption and Maintenance Act, 1956. Now, this inequality has been removed by the Personal Laws Amendment Act, 2010.

PROPERTY RIGHTS

To eliminate all these conflicts and to secure women as equal to men, the then government sanctioned the Hindu Succession Act in 1956. The Act passed in 1956 was the fundamental law to provide an absolute and uniform structure of inheritance for Hindus and to label gender inequalities in the patch of inheritance. Therefore, it was a procedure of codification as well as an amendment at the same time. The Hindu Succession Act was the initial act of property privileges and rights among Hindus after independence. The Hindu Succession Act, 1956 was sanctioned to codify creeds statute relating to deliberate succession among Hindus.

This appeals to both Mitakshara and Dayabhaga creeds. Preserving the Mitakshara inheritance without women being involved in it indicated that women could not bequest ancestral property rights as men do. If a joint family diverged, each male beneficiary takes his share, and the women acquire nothing. The Hindu Succession (Amendment) Act, 2005, enveloped inequalities on different appearances: parental dwelling house; agricultural land; Mitakshara joint family property; and certain widows. From history to the present, there is an extreme change in the lifestyle of women, now women with their domiciliary work also play a part in the earning of their family and the economy of the nation. She absences nowhere at the back of the man. Women must never be contemplated the delicate part of society as their household tasks are more difficult than the office work of the man.

WHY DO RULES FOR WOMEN’S SUCCESSION NEED TO CHANGE?

The law approves heirs of the father or husband to inherit properties of women who die unheard, but properties of men who die unheard don’t delegate to a woman’s heirs. A three-judge Supreme Court bench headed by Justice DY Chandrachud is trialing a petition testing the provisos of the Hindu Succession Act, 1956, specifically sections 15 and 16 relating to female succession. The appeal challenges the constitutionality of the provisos for being “overly discriminatory and infringing the procedure of the Constitution”. Although the lawsuit was filed four years ago in 2018, an amendment bill recommending changes retrieving the same had been already found in Parliament in 2015, but there was no conversation on it, leading to the sequential lapse of the bill.

The Hindu Succession Act gives the principles for the property succession of a Hindu woman who dies unheard. It comes up with a hierarchy heeding to which the property is to delegate.

1. Prakash v. Phulvati¹ – In this case, a two-judge bench headed by Justice A. K. Goel held that the interests of the 2005 amendment could be permitted only to living daughters of living inheritors as of September 9, 2005 (The date when the amendment came into power). The Apex Court had held that Section 6 was prospective in nature and would apply only if the coparcener and daughter were both alive as on 9 September 2005.

2. Danamma v. Amar² – In this case, the honorable Supreme Court of India stated that if the father is a coparcener who demised before 9 September 2005 and a prior suit has been unsettled for partition by a male coparcener, then the female coparceners are sanctioned to a share. The court remarked that the provisions of section 6 (Amendment Act) are functioning in a retrospective manner and they transform absolute rights upon the daughter to be inheritor since birth. This judgment was in contrast to the judgment given in the Phulavati case.

3. Vineeta Sharma v Rakesh Sharma³, the court held that a daughter coheir would have equal coparcenary rights in Hindu undivided family properties or equal privileges to the family property by birth regardless of whether the father coparcener demised before or after 9 September 2005 (The day Parliament acknowledged this right by amending the Hindu Succession Act of 1956). The Supreme Court of India held that Section 6 shall be seen retroactively. Describing the theory of retroactive application of the amendment act, 2005, the court held that the said Act permits women to have the benefits of succession based on their birth.

CONCLUSION

However, despite all the rebellious conditions of the Hindu Succession Act of 1956, Hindu women in the Indian community pursue to be underprivileged property rights in general. It was only a slice of legislation. Even though the Act established insurgent changes, it has been predominantly ignored by family members in fact since the conditions are incompatible with habitual Hindu social essence. There because of a limpid contrast between the law as it is and the law as it is bid. It is frequently tarnished by incidences of unabashed prejudice. All of these are laudable measures in theory, but the challenge leans not in acknowledging women’s property rights but in implementing them.

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CITATIONS

¹ (2016) 2 SCC 36.

² (2018) 3 SCC 343.

³ (2020) 9 SCC 1.

The article is written by Ashmita Dhumas, who has completed her BA LLB from Agra College and is doing a diploma in Corporate Law from Enhelion.

SUCCESSION LAWS

Succession essentially refers to the division of a dead person’s property. It refers to the sequence in which assets are transferred from one person to another, and also how much portion a specific member of the family receives upon the death of the individual. Corporate personalities with a continuous existence are excluded by succession rules in India. Succession, also known as Inheritance, is not just a stream of revenue for many people, but it is also a sign of familial lineage in Indian culture. Awareness of inheritance rules would be beneficial for all legal heirs in order to avoid any litigation squabbles, family disputes, or asset frauds.

WHO IS A LEGAL HEIR?

A legal heir is somebody who is supposed to receive property shares through a will or a Succession Act. As a result, a legal heir is an individual who, either by law or by will, claims his or her ancestor’s property. An inheritance is a piece of a deceased person’s estate given to an heir.

There are two primary methods for succession:

1. By Testamentary Succession, which occurs when the deceased leaves a testament naming specific successors to his property.

2. By Intestate Succession, when the deceased hasn’t left a will, the law ruling the dead (as per his religion) steps in and decides how his estate will be distributed.

When a person is dead without a will, he or she is said to have died intestate, and the assets are dispersed by a probate court.

In the present article, we are going to discuss the Succession laws that are applied amongst the Christians and the Parsis. Just like Hindu and Muslim religions, every other religion governs its property affairs with its own set of laws and rules. Hindu law is governed by Hindu Succession Act, 1956, and the Muslim religion is governed by Muslim Personal Law (Shariat) Application Act, 1937. Similarly, Christians and the Parsis are governed by the Indian Succession Act, of 1925.

CHRISTIAN LAWS OF SUCCESSION

The deceased’s religion determines who inherits his estate. The Indian Succession Act of 1925 essentially deals with the group of legal heirs who are eligible to inherit the deceased’s estate after his death. Considering domicile is a key criterion for defining succession laws affecting Christians in India, there is a wide range of rules of succession controlling Christians in India. For example, until January 1986, Christians in Kerala were controlled by two separate Acts: people domiciled in Cochin were managed by the Cochin Christian Succession Act, 1921, while those domiciled in Travancore were controlled by the Travancore Christian Succession Act, 1916. Both two Acts have already been repealed, and Christians who were previously regulated by these laws are now regulated by the general framework of succession under Indian Succession Act, 1925. However, in particular taluks, Protestant and Tamil Christians, for instance, are still ruled by their distinct rules. Christians in Goa and the Union Territories of Daman and Diu are regulated by the Portuguese Civil Code, 1867, whereas Christians in Pondicherry may be managed by the French Civil Code, 1804 (such Christians are known as “Renoncants”).

S. 2(d) of the Act defines an “Indian Christian” as follows: “Indian Christian” denotes a native of India who is, or alleges to be, of unmixed Asiatic heritage and practices any form of Christianity.

This was explained further in the case of Abraham v. Abraham, when the extent of this notion of an “Indian Christian” was defined in terms of its actual use. This decision established that a Hindu who converts to Christianity is no longer subject to Hindu law (customary or otherwise), and any ongoing obligatory force that Hindu law may have exercised over him is relinquished. Nonetheless, despite having converted from the old religion to the new one, he was given the option of allowing the old law to persist to affect him.

Sections 31 to 49 of the Indian Succession Act of 1925 govern this. As per Section 32, a Christian’s legal heirs are:

• Wife (Widow)
• Son
• Daughter
• Father
• Mother
• Brother
• Sister
• The direct bloodline (Such as son and his father, grandfather and great- grandfather)
• Under the third degree of kinship, if a person dies without leaving a will and only his great-grandfather, an uncle, and a nephew are remaining, no one will take equal shares with direct kindred.

The idea of kindred and consanguinity is introduced in Section 24 of the Act, which defines it as “the link or relationship of persons derived from the same source or same ancestry.” S. 25 defines ‘lineal consanguinity as a lineage in a direct relationship. This category includes relatives who are descended from each other or the same single origin.

S. 26 defines ‘collateral consanguinity’ as the situation in which two people are sprung from the same line or genetic basis but not in a straight line. It is worth noting that the rule for Christians makes no distinction between relationships via the father and those through the mother. If the intestate’s relations on both the father and mother sides are equitably linked, they are all qualified to succeed and will share equally. Furthermore, there is no differentiation between full-blood/half-blood/uterine relatives; and a posthumous kid is recognized as a child who was present when the intestate died, as long as the child was born alive and was in the womb so when the intestate died.

Christian law doesn’t quite acknowledge children born outside of marriage; it only recognizes legal marriages. Furthermore, polygamous marriages are not permitted. The Act’s Sections 33, 33-A, and 34 control transfer to the widow. They agree that if the dead has both a widow and lineal descendants, she will receive one-third of his wealth, while the remaining two-thirds will go to the remainder. If the widow remains surviving, the lineal descendants will receive two-thirds of the property; if she is not, they will receive the entire inheritance. Per capita (equal division of shares) is applicable if they are related to the deceased to the same degree. This is in accordance with Sections 36-40 of the Act.

Part VI of the Indian Succession Act of 1925 addresses testamentary succession. S. 59 states that any person mentally sound who is not a minor may part off his estate through a will. The interpretations of this Section substantially broaden the scope of testamentary disposal of an estate by saying unequivocally that married women, as well as deaf/dumb/blind people who are not consequently disabled to form a will, are all permitted to dispose of their asset by will. The method also requires mental clarity and abstinence from alcohol or disease that renders a person failing to comprehend what he is doing.

LAWS OF INHERITANCE FOR PARSIS

Sections 50 – 56 of the Indian Succession Act of 1925 deal with Parsi inheritance laws. There is no difference between the rights of the widow and widower, as it is in Christian inheritance law. The laws for Parsis are extremely ambiguous. A small group of Parsi Zoroastrians in India, whose religious objectives as well as their existence as citizens must be protected in order to ensure stability as citizens of India, and who, according to the Indian Constitution, resemble a specific culture. The Legislature’s stirring up of the issue of the Uniform Civil Code in India has caused alarm for these Parsi Zoroastrians, which will influence their succession rights. According to the Indian Succession Act, 1925, section 54, a Parsi person has the following legal heirs:

• Father
• Mother
• Full brother
• Full sister
• Paternal grandparents
• Maternal grandparents
• Children of maternal grandparents and their lineal descendants
• Children of paternal grandparents and their lineal descendants
• Parents of paternal grandparents
• Parents of maternal grandparents
• Children of paternal grandparents’ parents and their lineal descendants
• Children of maternal grandparents’ parents and their lineal descendants

A widow or widower of an intestate who marries again during the intestate’s lifetime receives no portion. The only exception to this rule would be the intestate’s mother and paternal grandmother, who would receive a portion even if they remarried during the intestate’s lifetime.

SUCCESSION PRINCIPLES COMMON FOR CHRISTIANS AND PARSIS      

• Illegitimate child’s rights: Christian and Parsi law do not recognize people who were born outside of marriage and only handle legal weddings (Raj Kumar Sharma vs. Rajinder Nath Diwan). Thus, the relationship referred to in various parts of the Succession Act about Christian and Parsi succession is the tie resulting from legitimate matrimony.
• The law does not distinguish between ties via the father and those through the mother for Christians and Parsis. In circumstances where both the father and mother sides are evenly linked to the heir, all those relations are entitled to succeed and will give equally. Additionally, there is no distinction between full-blood, half-blood, and uterine relationships; and a posthumous kid is considered the same as a child alive when the intestate died, provided the child was born alive, and was in the womb so when the intestate died.
• Testamentary Succession: Applicable to both Christians and Parsis.
• Wills and Codicils: Any individual of sound mind who is not a minor has the power to dispose of his estate by a Will. Thus, a married woman or other individuals who are deaf, dumb, or blind are not prohibited from making a Will if they are aware of what it accomplishes. As a result, the only people who are barred from making Wills are those who are in an unfit frame of consciousness due to intoxication, disease, or other factors.
•  Testamentary Guardian: A father has the power, by Will, to designate a guardian or guardian for his minor child.
•  Revocation of Will by Testator’s Marriage: All types of wills are canceled by marriage that occurs after the Will is made.
• Privileged and Unprivileged Wills: Unprivileged Wills are those that meet the necessary conditions outlined in Section 63 of the Succession Act, while Privileged Wills are those that are executed in accordance with Section 66 of the Succession Act.
•  Bequests to religious and charitable causes: Section 118 of the Succession Act (which applies to Christians and not Parsis) states that no man with a nephew or niece or any nearer relative shall have the power to pass down any property to religious or charitable purposes unless by a Will implemented not less than 12 months before his death, and stashed within six months from its implementation and operation in some place provided by law for the secure storage of the Wills of living peasants. The Supreme Court ruled that the aforementioned condition was unconstitutional, thus Christians and Parsis can give their possessions to philanthropy without being restricted by it.
• Probate-In the event of a Parsi’s death after the Act’s inception, a probate is required if the will in issue is created or the property entrusted under the will is located within the “ordinary original civil jurisdiction” of Calcutta, Madras, and Bombay, and also where such wills are created beyond these limits insofar as they correspond to immovable property located within those limits.

Christians: A Christian is not required to get probate of his Will.

CONCLUSIONS AND SUGGESTIONS

The inheritance regulations that must be obeyed are heavily influenced by the faith that the intestate professes at the moment of his or her death. The complexity of succession rules in India as a result of the various religions in use has made succession laws even more challenging. However, regardless of faith, the primary goal of intestate succession rules is to distribute property to legitimate successors without causing family feuds. The succession laws of the faith professed by the individual who died intestate dictate who all qualify as lawful heirs and their order of preference. As a result, understanding the laws relevant to a person creating a will or organizing the inheritance of his estate requires a thorough understanding of the intestate’s faith.

The Indian Succession Act of 1925, which is the law of the land in terms of intestate and testamentary succession, must evolve with the passing years and civilization. Keeping several biased outdated rules in place goes against the principles of the Constitution. Women’s right to inheritance is important for socioeconomic and political development, yet women are frequently denied equal rights to inheritance due to a deeply established patriarchal system. Women’s status could be improved further by granting them similar rights in the property. The repeal of gender discriminatory elements from the Indian Succession Act, of 1925 would go a great way toward improving the situation of women, particularly Christian women, who constitute the majority of the community regulated by the Act.

Kerala Law Commission’s 104th Report on the Law of Intestate Succession Among Christians in Kerala,   submitted under the chairmanship of T.R. Balakrishna Iyer, strongly endorsed laying down uniform rules of intestate succession for all Christians without exception, taking its cue from the Christian Succession Acts (Repeal) Bill, 1958, under which Kerala Government itself had realized the need for uniform law for intestate succession among Christians. It opined that the continuation of separate laws of succession over various places violated the principle of equality enshrined in Articles 14 and 15 of the Constitution. The adoption of a uniform rule of intestate succession would indeed be a move forward towards the establishment of a Uniform Civil Code, as contemplated by the Constitution’s Directive Principles.

India is a religiously multicultural country, and its constitution grants equal treatment to all religions. Keeping up with the plethora of succession rules, on the other hand, may be rather difficult and time-consuming for both the average man and law enforcement. As every citizen of India, regardless of creed, race, or customs, is given equal recognition in fundamental rights, a uniform code of succession laws among all religions guided throughout the country would facilitate a better understanding and application of rules for both the common man and law enforcers.

CITATIONS AND REFERENCES

1. AIR 1987 Del 323.
2. Archana Mishra, ‘Breaking Silence – Christian Women’s Inheritance Rights under Indian Succession Act 1925’, https://www.researchgate.net/publication/291349382_Breaking_Silence_-_Christian_Women’s_Inheritance_Rights_Under_Indian_Succession_Act_1925/link/56a1d5a108ae27f7de26952a/download .

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This article is written by Ajita Dixit, who graduated from ILS, Dehradun, and presently pursuing Masters in Law.

Pro bono is a condensing for the Latin expression free public or, which deciphers as “for a long term benefit.” The expression regularly alludes to proficient administrations that are accommodated free or at a diminished expense. Experts from various disciplines offer free types of assistance to not-for-profit associations. Medical clinics, colleges, public causes, holy places, and establishments are among these associations. It is additionally conceivable to accomplish free work for people who can’t pay. The expression free is fundamentally utilized in the legitimate calling. Free attorneys serve the public interest by offering free legitimate administrations to individuals out of luck. Rather than working for benefit, the professional is accepted to work to assist the bigger great.

Like M.K Gandhi said “there is sufficient asset for everybody’s necessities except not voracity” conversely, these days equity is available to the people who can bear the cost of it not to the people who are out of luck. So fundamentally, Pro bono is the way through which legal counselors, NGOs, and other legitimate foundations like these days’ law schools through their regulation understudies attempt to give a legitimate guide to the oppressed ones at zero-cost so equity ought to arrive at all classes.

PRO BONO IN INDIA

The option to free lawful guidance is revered in Article 39A of the Indian Constitution. Part IV (Directive Principles of State Policy), added by the Constitution (42nd Amendment) Act 1976, states that the State is committed to ensuring that the general set of laws gives equivalent equity to every one of its residents. The state should offer free lawful help to people who can’t get equity because of monetary imperatives.

However, it is unavoidably given under Article 39E for the state to ensure equivalent equity to all still India has been far away from the free exercises taken by many nations like the USA, UK, South Korea, and so on. Aside from the established rules, the government has likewise framed another demonstration that is Legal Service Authority Act 1987. This Act permits the middle and state legislatures to set up free lawful guide authority at the middle, state, and region levels. On account of Hussainara Khatoon v. Home Secretary, State of Bihar the Supreme Court held that the right to an expedient preliminary is a right ensured under Article 21 of the Constitution. Moreover, as per Article 22(1) of the Constitution, the denounced for a situation has the privilege to be addressed by any legitimate professional of his decision.

While pro bono work is energized under the Indian regulation, it is laden with challenges. In any case, India’s developing requirement for business lawyers smothers free area improvement. Besides, India’s colossal variety, its liberal regulations, and law concerning legitimate administrations for the oppressed, its enormous populace living in destitution, its set of experiences and current status as a common, vote based, republic and its new monetary development, as well as the assumptions that development has raised, all consolidate to establish a special and testing climate where the free legitimate administration area is creating. There are a few public grievances about the formal overall set of laws, including debasement, legal productivity, and absence of public confidence in the legal executive, all of which prompt casual clash settlement.

CHANGES IN PRO BONO SERVICE

Free Legal Service program which is ‘Nyaya Bandu’ was sent off by Mr. Ravi Shankar Prasad in April 2017. It expects to arrive at each minimized or penniless one through the method for an application and to bring every one of the individuals from the free support of one spot. To additional improve the assistance of free Department of Justice arrived at 25 HCs mentioning them to set up an incorporated board of free legal counselors. By 31st 2020, 502 promoters have been enlisted as naysay band under 14 HCs.

In the wake of making a few strides, the number of members was not pleasant because of an absence of time with the supporters. So to adapt to this Department of Justice chose to permit regulation understudies to help free promoters. Then in June 2020, a module of Pro Bono Club was planned. The graduate school needs to pass 3 rules to get into it. After which DOJ has rebuilt the PB Club report for the FY 2021-21 after noticing the Coronavirus circumstance to more extensive the idea of PB Club in Pan India plan to admittance to equity named ” Designing Innovative Solutions And Holistic Access to Justice (DISHA).”

Regardless of this, the lawful guide framework in India has shown to be ineffectual. The significant obstruction is the serious deficiency of achieved attorneys who will work under the aegis of the Legal Services Authorities. Now and again, attributable to low compensation, attorneys are uninterested in giving skilled lawful help. In particular, attributable to clients being alluded to the attorneys through the Legal Services Authorities, a trust situated and proficient legal counselor-client relationship rarely fructifies. The legal counselors remain incredibly careful as the clients are seen to be pushed onto them and clients will generally have ridiculous assumptions. The way that the legal advisor is being paid for his administration by the Legal Services Authorities causes a client to feel that the promoter owes more noteworthy openness and higher help quality. The legal counselor doesn’t see the expense to be equivalent to the work done and endeavors made.

Free administrations are liberated from such biases. The legal advisors take up free tasks with the readiness and respectable aim to serve. There is a chance for both the legal advisor and the client to survey their similarity. The client is likewise mindful that the legal counselor is working for nothing and with the well-being of the client as a top priority. This prompts the development of common regard, trust, and a strong working relationship. One more significant element that works to the advantage of the free framework is that both the client and the legal counselor have an option to stop the commitment without any inquiries being posed. In the legitimate guide framework, these issues will generally cause a commotion.

Throughout recent many years, authoritative, institutional, and jurisprudential changes in India have given the preparation to the oppressed to get free lawful administrations. Practically speaking, notwithstanding, a couple of associations productively offer these types of assistance, depending on India’s special PIL process for legitimate help.

Additionally, it is to be noted here that, as of now, unfamiliar qualified lawyers are disallowed from addressing free clients under homegrown Indian regulation. Unfamiliar qualified lawyers can, nonetheless, effectively add to free legitimate administrations by contributing exploration and composing abilities in individual cases, as well as by implication, by joining forces with Indian associations to construct limits. The interest for free legitimate administrations in India extraordinarily dwarfs the stockpile, and in, not set in stone, coordinated endeavors by the lawful experts would go quite far towards guaranteeing a lawful guide to the destitute and admittance to equity to all as specified by the Constitution.

NEED FOR PRO BONO SCHEMES

1. Restricted Participation of Law school: As of now, DOJ’s attention is just on the NLUs and Central Universities and dismisses other Law schools. As practically all NLUs climate is corporate for that reason their understudies get away from themselves to enjoy prosecution exercises.
2. The low soul is shown by promoters in these cases: Numerous free promoters show low interest or say put fewer endeavors into these cases because of the absence of acknowledgment.
3. Free plan neglected to arrive at mass: Indeed, even in the wake of going to lengths still, more individuals have no lawful help.

To advance free legitimate administrations, the Department of Justice has done whatever it takes to make a data set of legal advisors who give and will offer free types of assistance with the goal that such legal counselors can be considered for the arrangement to suitable positions. After the judgment of the Supreme Court in Indira Jaisingh v. Supreme Court of India, free work has become one of the passing boundaries for assignment as a Senior Advocate. Rather than giving an obligatory free administration structure that will in general have its entanglements, there is a rising need to facilitate boost free lawful administrations. This will go far in coordinating the way of life of free work in the lawful local area. A sound mix of lawful guides and free administrations will go far in empowering our country to accomplish the much-blessed objective of admittance to equity.

CONCLUSION

In the wake of assessing the free plan and its need, we finish up by saying that DOJs ought to move their concentration from just NLUs and Central Universities to State Universities where numerous understudies themselves come from such foundations that experienced due to non-accessibility of free administrations. Furthermore, DOJs should perceive crafted by the PB advocates by giving them grants, monetary rewards, and so on and last new advances should be taken to arrive at the grass-root level of the issue of free reach.

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CITATIONS

1. 1979 AIR 1369, 1979 SCR (3) 532.
2. (2017) 9 SCC 766.
3. Pro Bono work: A case for its integration into legal services in India, https://www.scconline.com/blog/post/2018/08/04/pro-bono-work-a-case-for-its-integration-into-legal-services-in-india/ ( Last accessed on 12 July, 2022).

This article is written by Arpita Kaushal, a student of UILS, PUSSGRC, HOSHIARPUR.

INTRODUCTION

‘Femina’, a Latin word for a woman, is the root of the English word “feminist.” But what exactly does feminism suggest? Due to individual people’s views, there are various responses to this question. The fundamental definition of feminism is a compilation of movements to determine, create, and protect equal rights for women in the fields of economy, education, politics, and other fields, as well as social rights for women with equal possibilities. An advocate of feminism may be a male, woman, or transgender person because it is a gender equality ideology. What is feminism jurisprudence, though, is a completely different subject that needs to be addressed.

Feminist jurisprudence, commonly referred to as feminist legal theory, is founded on the idea that the legal system has played a significant role in the historical subordination of women. Feminist legal theory has two objectives. First, feminist jurisprudence tries to explain how the law contributed to women’s past inferior status. Second, feminist legal theory is dedicated to enhancing the situation of women through a revision of the law and its treatment of gender.

THREE MAJOR SCHOOLS

Feminism promotes equal rights for both men and women. Feminist legal systems differ from one another. There are three major schools of feminist jurisprudence –

1. Traditional or Liberal Feminism

It says that women are just as reasonable as men. Hence, they should also be given equal opportunities to make choices.

2. Cultural Feminist

In this type of school of feminism, the main focus is on the variances between the two genders. The thinkers appreciate those variances and propound that Women place more value on interpersonal connections, whilst males place more value on legal and logical abstractions. Giving women’s moral voices of compassion and communal ideals equal recognition is the aim of this school.

3. Radical or Dominant Feminism

The main focus of this school is on inequality. They propounded that the men dominated the women’s class and this results in the situation of gender inequality. Radical feminists see gender as a matter of power. Radical feminists admonish us to reject conventional methods that use maleness as their point of reference. They contend that women’s differences from men must be taken into consideration while constructing sexual equality.

APPROACHES TO FEMINIST PHILOSOPHY OF LAW

1. The Liberal Equality Theory

Liberal feminism is a particular philosophy that deals with achieving equality between men and women and primarily emphasizes the ability of an individual to end discrimination against women. Liberal feminists want to empower people to follow their intuition and use their skills to make men and women equal in the eyes of the law and society. Their views on freedom are the main distinction between modern liberals and bygone liberal feminism.  To attain equality in democratic liberal countries, a contemporary liberal feminist maintains that women’s freedom and political autonomy must be promoted. A former liberal feminist, on the other hand, asserts that feminism’s political duty is limited to opposing laws that treat men and women differently, and that they have already succeeded in this objective. Despite this catfight, their ultimate goal is to unite women together so they may speak up and create enormous amounts of awareness.

The Sexual Difference Theory

Arguments for gender feminism are included in the theory of sexual difference. It makes the case that the causes of women’s mistreatment are intertwined with nature, psychology, and culture. It claims that there are many ways in which the cultural traits associated with femininity are superior and more potent than those associated with masculinity and that men and women should thus weave their reasoned webs.

2. The Dominance Theory

Dominance feminism is a philosophy held by feminists that reject the perspectives of difference feminism and equality feminism. The feminists who scream for equality want women to be given systematic equal access to all social, cultural, and legal male privileges. Feminists, on the other hand, promote gender diversity and call for women to get distinct legal and social protection in order to make up for historical injustices. The dominance theory, which contends that male social power is the outcome of well-documented disparity between men and women, in some respects supports feminists who fight for gender discrimination. Dominance feminism condemns men’s concerted efforts for women’s subordinate status in society. It asserts that men physically, sexually, and socially dominated women. They subjugated women socially by objectifying them, enforcing patriarchal rules on them, and denying them any legal rights. In terms of sexual harassment, they threatened to force them into sex, used catcalls, took advantage of them at work, and shaped them into simple sex objects. According to a Hindu shloka, “naari taran ki Adhikari”—which means that males should physically abuse women more—a woman is deserving of being beaten. The term “dominance feminism” is sometimes used to refer to Catharine A. MacKinnon.

3. The Anti-Essential Theory

 A cluster of fundamental qualities that are both sufficient and necessary for objects to be identical might be referred to as essentialism. To further comprehend essentialism, it includes two steps: the first is summarizing the things inside a single concept in order to distinguish between objects by taking into account their distinctive parts, and the second is classifying them as belonging to that concept. A loose definition of feminist essentialism is the belief that all women share certain psychological and biological characteristics, such as attractiveness, sympathy, fostering, and supportiveness, which are the origins of the idea that all women are fundamentally the same. According to essentialism, every woman has the same innate qualities. Simple opposition to this presumption is anti-essentialism. Anti-essentialists reject the idea that the definition of women should be based on fixed characteristics like genetics and psychology since doing so prevents women from changing and makes it harder for society to recognize them as individuals.

4. The Post-Modern Theory

Other feminist views are unique from postmodern feminism. It starts with the assumption that contemporary feminists have overlooked acknowledging differences within each gender because they are too preoccupied with the distinctions between men and women. Furthermore, it contends that gender was created through talks based on perception, which we eventually absorbed as time went on. In addition to this, postmodern feminists assert that the main reason why there are different forms of patriarchy is because of the social traits of women. The intersectionality hypothesis, which aims to look at how social, biological, and cultural classes simultaneously interact with one another, was used to frame these opinions.

FUNDAMENTAL RIGHTS

When it comes to equality, our constitution has given us certain rights and clauses that preserve the environment of positivist equality. When read in conjunction with Article 12, Articles 14 and 15¹ represent the ideas of our constitution’s authors and further protect women against gender discrimination. According to the reading of Article 14 given the gender equality perspective, all people, including women, have an equal right to protection under the law throughout the Indian subcontinent. Men and women should be treated equally under the law and by the country under similar situations.

However, Article 15² shields women from all forms of prejudice. Clause 3 of Article 15 grants the State the authority to create any additional provisions for women and children in order to maintain the idea of equal protection of the law in situations where the same treatment would have been accorded but was not. This clause is recognized in light of the historical social and economic disadvantages faced by Indian women, which resulted in their reduced participation in the nation’s socio-economic activities on an equal basis. The main motivation for the provision is to give women a voice, end their socioeconomic disadvantage, and unquestionably empower them.

In the decision-making process, democracy unquestionably gives everyone an equal chance. Since they make up over half of the population and are free citizens, women are theoretically capable of resolving their disputes through democratic channels. However, they are ineffective participants in the democratic game because of socioeconomic factors and cultural norms. A pro-woman and anti-subordination interpretation of the Constitution and legislation must be adopted, and this provision was further developed in light of positive discrimination, given the drawbacks of the democratic process and the dangers of parliamentary majoritarianism.

The court discussed the need for regulations to stop the dominance analysis techniques that are present in our patriarchal society in the case of Bodhisattwa Gautama v. Subhra Chakraborty.³ A woman, in our country, unfortunately, belongs to a class or group that is in a disadvantageous position due to several social barriers and impediments and has, as a result, been the target of tyranny at the hands of men. The court held that certain laws help to ameliorate the position of women in society and that they are also very constitutionally valid as they come under the legitimate heading of positive discrimination, which is fundamental to our country’s founding principles.

DIRECTIVE PRINCIPLES OF STATE POLICY

Gender equality is likewise included in Articles 39(a)⁴ and 39(d)⁵ of the Directive principle of state policy. While the second article advocates equal compensation for equal work for men and women, the first article discusses the equal right of men and women to an adequate means of subsistence. Maintaining a balance between individualism and socialism is the basic tenet of the Directive principle of state policy. To address the issue of women in the postmodernist era, the DPSP has taken all necessary steps.

Due to their long-sightedness, the framers were able to consider the challenges that women would have faced as society’s patterns changed. To further bolster this claim, Article 51(a)⁶ discusses a clause that forbids actions that are disrespectful to women’s dignity. The idea that the constitution has disregarded the position of women is unavoidable when looking at the statutes collectively. Our constitution’s drafters undoubtedly made an effort to include as many clauses as possible that, if absent, would have led to discrimination.

CONCLUSION

Men and women have always been seen as separate from one another as well as having different social statuses and levels of authority. Through some clever contrasts, such as behavioral traits, women have been purposefully portrayed as the antithesis of men. For example, men are assumed to be competitive, rational, aggressive, intelligent, political, and dominant leaders, while women are assumed to be fragile, emotional, domestic, caretaker, and underlings. Every political and economic organization, from educational to religious institutions, to beauty standards and relationships, has consistently followed some variation of these presumptions. Sadly, the law is not an exception. As a result, cultures recognized the need for feminist jurisprudence, and in order to reach this goal, feminists stepped up, questioned male-insight laws or practices, provided examples of illegitimate patriarchy, and provided guidance on how to build “equality” for women globally.

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CITATIONS

¹ The Constitution of India 1950, Art 12.

² The Constitution of India, Art 15.

³ (1996) 1 SCC 490.

⁴ The Constitution of India 1950, Art 39(a).

⁵ The Constitution of India, Art 39(d).

⁶ The Constitution of India, Art. 51(a).

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

The highest praise given to a king in antiquated history books was that he was just, helped the poor, and punished the wicked. Law-abiding citizens in those days desperately needed protection from powerful lawbreakers. The state’s authority is well established in modern times. While it is true that many crimes go unnoticed, no criminal has a chance of openly defying society. If we read about a man being hunted in the country, we give the poor wretch at most two weeks because we know that by then, the armed forces of the law will undoubtedly have caught up with him. But because of its overwhelming strength over an individual delinquent, it can afford to be kind. Making an effort to comprehend the offender is the least we can do for him. In fact, any wrongdoer who is not simply a born criminal or an incurable maniac is usually only a step away from being a decent person.

Knowing how a crime was committed requires being aware of a criminal’s mental state and deciphering his thoughts. As a result, criminal psychologists play a part. They dissect the incident’s emotional, personal, mental, and societal components. Lawyers frequently interact with criminals to establish a virtual relationship with them and work together to locate the crime scene. Together, criminal psychologists and attorneys work to understand the traits, language, actions, and biases of criminals. Criminal profiling is the official name for it.

WHAT IS PSYCHOLOGY?

As psychology strives to scientifically study behavior, it has undergone significant transformation and diversification. There are now more focused paradigms in place of the globalization and liberalization paradigms that were very popular in the 20th century. Diversification is becoming increasingly necessary in order to comprehend the theory and application of particular aspects. At the same time, a holistic approach is necessary and cannot be disregarded. Thus, it is clear that the notion that interdisciplinary, multicultural, and eclectic approaches are more practical is exemplary.

Governmental organizations must intensify their focus on enhancing legal services as a result of the rising crime rate. Finding the causes of crime, understanding the psychology of criminals, and being able to design interventions at the individual and social levels are also crucial if society is to improve. In sum, it is clear that in order to strengthen community involvement and reduce crime, governmental organizations must intensify their focus on enhancing legal services as a result of the rising crime rate.

From a single murder to a massacre! Have you ever considered the causes of the Holocaust? How can a single person, like Hitler, order the killing of millions of people? And discriminate against people and give orders to kill them based on factors such as caste, religion, race, and political beliefs. Without hesitation, his troops carried out his orders. Crime history is full of cases that raise many questions that can only be clarified by comprehending how people behave. Criminal psychology is important to control the growth of crime and to be able to assist those in need, not just to understand criminal minds or predict criminal behavior.

WHAT IS CRIME?

According to the law, a crime is an act that is either committed or disregarded in violation of public laws. It is also referred to as a crime. There are two parts to it- Mens Rea and Actus Reus. Crime can be characterized as an act that infringes on people’s rights, has an effect on society as a whole, inspires or influences sociopaths and psychopaths, and fosters a culture of mistrust and fear in society.

“It can be challenging to prove that a crime has been committed.” It is situation-based in addition to being contextual. When a soldier in a war situation kills a member of the opposing army, it is regarded as a display of bravery and pride. But it’s regarded as a crime by the general public. It is crucial to take into account whether a civilian crime was committed in self-defense, while under the influence of drugs or alcohol, or under social pressure. As a result, while the legal definition of crime emphasizes an action that violates the law, the normative definition of crime emphasizes an action that violates our moral standards. To sum up, it is ambiguous to categorize an act as a crime because there is no clear definition of what constitutes a crime. Only in relation to the social culture, legal system, and context of the act can the meaning of crime be understood.

RELATION BETWEEN THE TWO: CRIMINAL PSYCHOLOGY

Criminal psychology is the study of criminal behavior, whereby the term “behavior” includes personality, attitude, physiology, learning, motivation, thinking and other cognitive factors that contribute to the act of crime or criminal intentions. Police work also heavily utilizes psychology. Through the examination of a crime scene, investigative psychology, and other behavioral sciences, forensic psychologists or criminal anthropologists assist in identifying the suspects. These professionals are frequently used by law enforcement agencies to gain insight into the minds of potential offenders by determining the offender’s most likely personality type, way of life, and peculiarities.

Criminal psychology aims to control criminal behavior in addition to understanding criminal behavior. Over time, a deeper understanding of psychology, human behavior, and psychiatry have contributed to several important shifts in legal scholars’ perspectives on the law as well as the way the criminal justice system handles mentally ill individuals. Counseling and intervention are therefore crucial for both criminal and victim victims. The scientific study of psychology also involves and incorporates a great deal of research. Thanks to behavioral research, psychologists and legal authorities can better understand crime, criminal intent, and criminal behavior. In the future, both criminal and civil liability will inevitably change due to these complex research practices.

THEORIES ON HUMAN NATURE AND CRIME

Assumptions about human nature are based on three main domains, which are as follows :

1. Conformity perspective: Humans are fundamentally good, conforming beings who are greatly influenced by the attitudes and values of the society in which they live, claims Merton R. K. ‘s theory. This theory makes the supposition that people are creatures of conformity who desire to act morally. What society deems to be right is what is right. Influence from friends, acquaintances, family and other social networks can assist in finding the right thing. Delinquency and crime happen when there is a “perceived discrepancy” between the objectives cherished and materialist values and the accessibility of legal means. High-stress individuals and groups are forced to choose whether to uphold or disregard laws and norms; as a result, they withdraw, conform, or rebel.

2. Non-conformist Perspective: According to this theory, people are essentially illegitimate creatures who, given the chance, would disregard social norms and commit crimes. According to Travis Hirschi’s social control theory, crime and delinquency occur when a person has few or no ties to normative or conventional standards, which indicates a problem with social checks and balances. According to this theory, human nature is inherently “bad” or “antisocial.”

3. According to the third viewpoint, people are essentially “neutral” at birth and pick up all of their beliefs, behaviors, and tendencies from their social environment. This theory contends that social interaction with others is where criminal behavior is learned. Criminal behavior is not brought on by mental illness, emotional instability, or inborn goodness or evilness. People pick up messages from others who were perceived as criminals and use those messages to learn how to commit crimes. This theory is aptly summarized by the axiom that “bad company breeds bad behavior.”

PURPOSE OF CRIMINAL PSYCHOLOGY

Criminal psychology aims to comprehend criminal behavior in order to be able to manage and change it. By creating a psychological profile of repeat offenders and looking into the causes and consequences of their behavior, a criminal psychologist is needed to support police and legal authorities during a case’s investigation. Understanding the offenders and the police officers working the case is important. Human error and resource constraints frequently prevent or delay personnel from accessing case-related information. In order to help investigators deal with cases of mental illness where people are involved in crime, criminal psychologists should also develop guidelines and increase their knowledge.

Criminal psychology also seeks to understand how to resolve problems that emerge between the investigator, offender, and victim during a case investigation. In addition to providing counseling to offenders and victims, it aims to maintain and develop effective interventions for mental health professionals. If schools and colleges are involving students in activities that improve their mental wellbeing and deter them from engaging in violent acts and behaviors, then the role of a criminal psychologist is also understood. Criminal psychology is a specialized field. It’s critical to comprehend the mental health of young people who have engaged in antisocial behavior while in high school or college, as well as how to help them reintegrate into society.

Criminal psychology aims to comprehend developmental problems that could result in criminal behavior. Criminal psychologists have attempted to understand, test, and develop theories to understand developmental issues that may lead to criminal intent and behavior in a lot of the past research that has been done. Criminal psychology deals with and aids in the resolution of cases involving disputes over child custody and marital and family disputes. It’s also important to remember that criminal psychologists are obligated to examine and confirm the mental illness certifications provided by offenders. additionally to offer treatments and counseling to help them get better.

CITATIONS

1. Lawrence Kohlberg’s Moral Development Theory, 1958; Erik Erikson’s Psychosocial Stages of Development, 1963.

This article is written by Sanskar Garg, a last-year student of the School of Law, Devi Ahilya University, Indore.

INTRODUCTION

Behind today’s Democratic Secular Republic Socialist Sovereign India lies a ton of tumultuous happenings which includes the unification of around 565 princely states and the war between two neighboring countries. The credit for the present date India goes to the nation’s freedom fighters like Sardar Vallabhbhai Patel, Jawaharlal Nehru, and Mahatma Gandhi among many others. A committee headed by B.R Ambedkar drafted the constitution and adopted the same on 26^th November 1949 establishing democracy in India. Indian democracy is a government that is elected by the public of the country to regulate law and order in society and the government is answerable to the general public regarding its action. The Indian government is based on a parliamentary system i.e., the House of Representatives (Rajya Sabha) and House of People (Lok Sabha).

The democracy of India rests on four pillars— Legislature; Executive; Judiciary; and Media. In a democracy, citizens enjoy certain freedoms like professing any religion, practicing any profession, residing throughout any territory of India, forming associations, speech and expression, to assemble in any part of India subject to reasonable restriction. Similarly, internet freedom comes into play to protect one’s digital rights, right to access to information, and freedom from censorship on the internet. Indian government must uphold the rights and freedoms provided to citizens with changing times to ensure democracy in Indian society. Nowadays, Internet Democracy or Digital Democracy (E-Democracy) is used for governance which assures effective participation, equality of decision, clarity of issue, and cyber security issues. As youth believes, the internet is a primary source for any event and its easy accessibility and authenticity make it gain influence over the traditional resources. The minimal issues can be reduced by collective decision and problem-solving, resultantly helping the democracy to work efficiently and smoothly.

FREEDOM OF INTERNET

United Nations of Human Rights Council declared Freedom of the Internet as a human right in the year 2012. Especially an addition was made by the UN in the Universal Declaration of Human Rights Article 19 that everyone has a right to express his/her views on any issue going around via any social media platform disregarding any borderline among nations. Section 32 states the protection and promotion of human rights on the internet. The freedom that one enjoys offline must also be able to enjoy the same freedom online.

In the case of Faheema Shirin v. the State of Kerala,¹ high court concluded that the right to the internet is a part of a fundamental right. It is covered under Article 19 as well as 21 as it constitutes an essential part of one’s life with changing times. It was argued that if one was given the fundamental right to enjoy something, one must also have enough means to fulfill its purpose too. Bansashree Gogoi v. Union of India² reveals how an infinite number of petitions were filed in Guwahati High Court against the internet shutdown in Assam. The court opined the order to be lifted due to inconveniences faced by people in their day-to-day life.

The most recent incident of internet shutdown and mobile connectivity in Jammu and Kashmir in order to ensure security in the state also attracted a dispute. The action of the Home Department of Jammu and Kashmir was challenged by Anuradha Bhasin³ on grounds that no reasons were given while passing orders as required. Further, the order passed was based on agitation that the law and order situation would be damaged. The court believed that the state government has no right to pass any order based on its agitation regarding the maintenance of law and order. The government has pledged to be transparent and answerable to the public, therefore, making it an individual’s right to know. While concluding the case Hon’ble Supreme Court quoted that “Prohibition to the internet is a fundamental right but subjected to certain restrictions.”

The government had shut down internet services in the union territory and when resumed, only 2G services were supplied that led to a lot of hassle as most of the work was being done online due to COVID-19. The court took notice of it and asked the government to form a committee to cater to the situation that would also make regulations keeping in mind the needs of petitioners⁴.

Freedom House was established in the year 1941 and stationed in New York. It’s a governmental organization that aims the promotion of democracy throughout countries of the world. It issues an index showing the freedom of the internet among countries of the world. Iceland (96) topped the list whereas China (10) was at last. Speaking of India, it got a score of 49 out of 100 keeping in mind three indicators i.e., obstacles to accessing the internet, limits provided for content, and violations of user’s rights. India’s rank has been falling for the last two years and yet it has shown no improvement at all.

SOCIAL MEDIA

Social Media is a platform used by people to share their ideas, opinions, suggestions, and information about anything ensuring active participation in decision-making and other issues revolving around the interest of the general public. Social Media was formed to connect people from one person to another in two different corners of the world but with the advancement of technology, the business industry started using it as a medium to reach out to their customers.

In the present-day context, there are over 5.8 billion people around the world using internet facilities. With the existence of COVID-19, the number of users is only going to increase due to the maximum work being done online. Social media gives easy access to information, holding the reasons and answerability of leaders in check regarding issues arising in society. However, everything has its drawbacks; non-regulation of the system leads to the spread of bogus news, targeting minor castes or religions, and resultantly dampens democratic principles.  

Traditional Media and Social Media are two different sources that provide us with information about events that took place around the world. Traditional Media is about the news read in a newspaper or shown on T.V or listened to on the radio with the approval of an editor. On Social Media, the content is shared by any user of apps like YouTube, Twitter, or Facebook which he/she deems fit. Traditional Media offers one-way communication and no interaction among its users whereas new media is a two-way communication that allows the interaction between publisher and user. The internet and social media provide people with social networking and a range of opportunities that help in developing the social skills of youngsters.

SOCIAL MEDIA AND THE INTERNET ENSURE DEMOCRACY

With access to usage of the internet and platform to share ideas, opinions, and suggestions one can use his/her fundamental rights effectively and efficiently. Indian Constitution giving citizens the Right to the Internet under two different fundamental rights itself says a lot about the importance of the internet in the modern world. Article 19 provides Freedom of Speech and Expression to ensure there’s no hindrance to this right, therefore, the government must ensure the means to express the views, suggestions, and ideas must be given by the presence of social media and access to the internet as social media is an internet-based platform. Article 21 provides for the Right to Life and Personal Liberty ensuring the usage of the internet is important for one’s day-to-day life, the internet services, and their speed must meet the level so that no issues arise.

The presence of social media and the internet has two aspects related to the democracy of India— It provides assurance to the general public that their voice is being heard and government can also provide clarity of policy and reasons behind their actions. Discussion among people can easily help with problem-solving, the flow of information about elections, and assets and liabilities of candidates. It allows people to share their opinions but conflicting opinions can lead to hate comments or massive trolling. During elections, candidates may give speeches related to ethnic origin or caste, or religion for vote bank from that particular minority. To limit the spread of bogus information, social media platforms must be held liable for the contents posted on their sites and the government should also form new laws keeping in mind the problems that arise with the usage of the internet and social media.

CONCLUSION

Social media and usage of the internet are important to one’s life but excess of anything is harmful. Therefore, the freedom given must be with reasonable restrictions. Censorship is one of the main solutions to the problem of the spread of bogus news, anything that violates principles mentioned in the preamble, and many other issues. Yet, people are still divided on the issue of censorship. Some people support censorship as it restricts unlawful behavior, censoring influential content can help in the prevention of publicizing content that may be offensive. Whereas censoring content may also violate privacy, it may restrict the content that other people may not deem offensive or the uncensored content may be inappropriate. It may lead to a loss of originality in one’s content.

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CITATIONS

¹ WP (C) No. 19716 of 2019 (L).

²  2019 SCC OnLine Gau 5584.

³ Anuradha Bhasin v Union of India, AIR 2020 SC 1308.

⁴ Foundation for Media Professionals v. Union territory of Jammu and Kashmir (2020) SCC online SC 453.

This article is written by Simran Gulia, a BA.LLB student from Maharaja Agrasen Institute of Management Studies.

Victimology is the study of the investigation of the exploitation and connection of casualty and wrongdoer and the cooperation among the casualty and the law enforcement framework. Wrongdoing is a result of society and social circumstances. Nobody is conceived as a criminal. “Each holy person has a past and each delinquent has a future,” goes a famous saying. Hindu Jurisprudence thinks about compensation and contemplation for criminals to have both ‘prayaschita’ and transformation.1 Each individual including criminals has a divine flash and what is expected on our part is to ignite and revive it to empower the general public to recover and, recover him and to re-establish and restore him in the public eye as a helpful, also useful individual. The motivation behind discipline in criminal cases is both reformatory and reformative. The reason is that the individual seen as at fault for committing an offense is made to understand his shortcoming and is stopped from rehashing such acts in the future. The reformative angle is intended to empower the individual worried to yield and atone for his activity and make himself OK to the general public as a valuable social being. From a restricted perspective, victimology is an observational, genuine investigation of survivors of wrongdoing and as such is firmly connected with criminal science and hence perhaps viewed as a piece of the overall issue of crime. In a more extensive sense, victimology is the whole assortment of information with regard to casualties, exploitation, and the endeavors of society to unreasonable the privileges of the person in question. Consequently, it is formed of information drawn from such fields as criminal science, regulation, medication, brain research, social work, legislative issues, training, and policy management.²

VICTIMOLOGY IN INDIA

In Rattan Singh v. Province of Punjab³, Krishna Iyer, J. held that ―it is a shortcoming of our statute that the survivors of the wrongdoing don’t draw in the consideration of regulation. Without a doubt, casualty restitution is as yet the evaporating point of our criminal regulation. This is a lack in the framework which should be rectified by the council. More consideration ought to be attracted to this matter.

In Maru Ram v. Association of India⁴, Krishna Iyer, J. held that while the social obligation of the criminal to re-establish the misfortune or mend the injury is a piece of the correctional activity, the length of the jail term is no restitution to the injured or dispossessed yet is vanity compounder with savagery. Victimology should track down satisfaction not through barbarity but rather by mandatory recoupment by the miscreant of the harm incurred not by giving more agony to the wrongdoer but rather by reducing the loss of the pitiful.

In Dayal Singh v State of Uttaranchal⁵, the Supreme Court held that the criminal preliminary is implied for doing equity to all-the charged, the general public, and the person in question. The courts not only realize the capability to guarantee that no blameless man is rebuffed, yet additionally that the liable man doesn’t get away.

CHILD AS A VICTIM OF CRIME

India records 19% of the world’s youngsters and 1/3rd of the country’s populace, for example, 440 million youngsters are under 18 years and almost 40% of the kids are needing care furthermore, security. On the off chance that the youngsters are not as expected prepped by shielding them from any sort of misuse, attack, and so on the destiny of our future society will be a question mark. Kids’ government assistance and security are fundamental for the brilliant eventual fate of India. Child misuse is a complicated issue and an extraordinary danger that involves serious concern. In the greater part of youngster misuse cases, ―the abuser is either connected with, a known individual or more unusual etc. It is extremely challenging to distinguish whether offender is an abuser because of reasons most popular either to the casualty youngster or to their folks.

A genuinely mishandled child implies a kid under 18 years old, whose guardians or others are concerned, causes upon the youngster an actual injury or real mischief, which incorporates beating, hitting, kicking, consuming, or in any case hurting a kid truly. The UNICEF, Save the kids, and Legislature of India together directed an overview in 2007 and viewed that as 65% of younger students in India are exposed to beating basically the school’s educators actually proceed to follow the well-known adage, spare the bar and ruin the child which was a conventional shrewdness.

PSYCHOLOGICAL MISTREATMENT AND CHILD NEGLECT

It is basically an embarrassment for youngsters. It is otherwise called obnoxious attack, mental maltreatment, and mental abuse. It incorporates acts or inability to act by guardians, overseers, peers, companions, family members, and others that have caused or could cause serious conduct, mental, close to home, or mental trouble/injury. Psychological mistreatment can have all the more dependable negative mental impacts than some other types of misuse.⁶

In Smriti Madan Kansagra v. Perry Kansagra⁷, it was held that guiltless youngsters are utilized as the apparatuses of retaliation by malicious prosecutors who cause extreme mental maltreatment for the kid, in this way truly influencing the kid in his/her later piece of life.

“Disregard” has not to be understood from a restricted perspective of refusal to give food and dress, yet from a more extensive perspective in the setting of the current day social yearnings and necessities of kids which incorporate, love, due care and concern, training and so on. At the point when a youngster endures disregard in the setting of this large number of fundamental necessities, he makes certain to be genuinely hit, reflecting unfavorably upon her intellectual capacity and that is mental injury.⁸

Child sexual maltreatment, as per P.D. Mathew, incorporates utilizing, utilizing, actuating, or forcing, any kid to take part in illegal and reach, it additionally incorporates the utilization of youngsters helping other people to take part in express sex.

The term ‘missing youngsters’ incorporates runaway children, kids who are kidnapped, and those who get lost or isolated from their families. Be that as it may, the single biggest part adding to these enormous numbers is runaway kids between the ages gathering of 10 and 18. While some leave home for paltry reasons like not having any desire to study, others are compelled to escape from what they say is a hopeless existence. Many pass on their homes to get by or to get away from misuse, while a huge number succumb to trafficking.⁹

VICTIMIZATION AGAINST WOMEN

Orientation-based savagery targets influence ladies and young ladies lopsidedly. Around 1 of every 3 ladies overall have encountered sexual and different types of savagery. Ladies are likewise considerably more reasonable than men to be killed by their close accomplices or relatives. Violations including brutality against ladies are among the most under-announced and to the least extent liable to end in conviction. Survivors frequently face critical hindrances because of holes in criminal regulation and system, orientation generalizations, casualty accusing, and deficient actions of law enforcement establishments and experts, prompting optional exploitation.

Viciousness against ladies and young ladies is one of the world’s most pervasive common freedoms infringement, occurring consistently, many times over, across the globe. It has serious short-and long haul physical, monetary, and mental results on ladies especially young, forestalling their full and equivalent support in the public arena. The greatness of its effect, both in the existence of people, families, and society, all in all, is unfathomable.¹⁰ Conditions made by the pandemic – including lockdowns, diminished versatility, elevated confinement, stress and monetary vulnerability – have prompted a disturbing spike in aggressive behavior at home and have additionally uncovered ladies and young ladies to different types of viciousness, from kid union with lewd behavior on the web.

CONCLUSION

The effect of wrongdoing on the people in question and the families can range from serious physical and mental wounds to gentle disturbances. A survey¹¹ of the lawful structure according to freedoms of survivors of wrongdoing uncovers that aside from giving pay, very little has been done either legally or through plans to address the whole scope of issues looked at by casualties of wrongdoing. Because of the shortfall of any regulation on this angle the victim of wrongdoing for example the casualty is appeared to be overlooked. Notwithstanding, it is expressed that in India the casualties don’t have legitimate freedoms and security, they have the right to assume their part in criminal procedures which will quite often bring about disinterestedness in the procedures and subsequent twists in law enforcement organizations. Numerous casualties don’t go to the police out of dread of unfriendly exposure and pointless provocation. Be that as it may, in the event of youngsters, he is obscure to the equity arrangement of the country which results in the expansion in the unregistered cases which prompts the disappointment of rebuilding of the youngster into the general public. Aside from the deferral or even shortfall of equity, the casualties face comparable rates sometimes and they track down a protected spot in the public eye and see no future possibilities for carrying on with their existence with poise. In respect of this, the courts need to show the incredible feeling of obligation and to be more delicate while managing issues where a youngster is a person in question.

CITATIONS

¹ Karamjit Singh v. State AIR 2000 SC 3457.

² Randhawa, Gurpreet Singh, Victimology and Compensatory Jurisprudence, 1st Ed., Central Law Publications,

Allahabad, 2011, p. 42.

³ Rattan Singh v. Province of Punjab, 1979 (4) SCC 719.

⁴ Maru Ram v. Association of India, Krishna Iyer, 1981 (1) SCC 107.

⁵ Dayal Singh v State of Uttaranchal, 2012 (8) SCC 263.

⁶ Deccan Herald dt. 14th August 2009.

⁷ Smriti Madan Kansagra v. Perry Kansagra, MANU/DE/0386/2017.

⁸ Lubna Mehraj and Ors. v. Mehraj-ud-Din Kanth, MANU/JK/0252/2003.

⁹ Humaira Ansari &Surekha S. “Missing‖ DNA, Mumbai, 19 July 2008.

¹⁰ Ending violence against women, https://www.unwomen.org/en/what-we-do/ending-violence-against-women/faqs/types-of-violence ( available at 2 July,2022).

¹¹ Kumaravelu Chockalingam, ― Measures for Crime Victims in the Indian Criminal Justice System.

This article is written by Arpita Kaushal, a student of UILS, PUSSGRC, HOSHIARPUR.

Human Trafficking is the illegal transportation of human beings from one place to another against their will or by use of force or by luring them in under a misconception. It is aimed at the use of a class of persons for forced labour, sexual exploitation and many other activities that benefit in economic terms. It is considered a social problem as it violates the human rights granted to citizens of every nation, it also adds to global health problems, and the organized crime rate. The Act itself is of such heinous nature that it was called ‘Flesh Trade’¹. Victims of human trafficking may suffer for a longer duration of time. The Act itself puts a big question mark on the security of countries.

LAWS RELATED TO HUMAN TRAFFICKING

INDIAN CONSTITUTION

Article 23: Provides that trafficking in human beings, the begar and other forms of forced labour are debarred by the Indian Constitution under this Article and if someone violates this law, he/she shall be punishable by law. The only exception to this rule is that the state can impose obligatory service on its citizens without making any discrimination on grounds of race, caste, religion, class, or gender.

As per the case of People’s Union for Democratic Rights v. Union of India^2, the term forced labour was defined by the court as ‘the labour that one performs against his/her will or the job he/she is doing is not paying the minimum wage to the worker’. The state is bound to protect citizens from heinous offences like this by taking immediate and effective action against it and under Article 35 of the Indian Constitution, the Parliament has the authority to make laws that punish the offender of Article 23. Acts like the Suppression of Immoral Traffic in Women and Girls Act, 1956 and the Abolition of Bonded Labour System Act, 1956.

Article 24: It forbids children below the age of 14 years to be employed in any factory or mine or any other hazardous arrangement for employment. Whereas, employment in non-hazardous industries is permissible.

In pursuance to provide protection under this article, certain Acts were passed by the Government of India:

The Factories Act, 1948: First act to be passed after independence to define the minimum age limit for children who work in factories i.e., 14 years. Later, amended and provided the minimum age of work as 17 years at night.

The Mines Act, 1952: Forbids the employment of children below the age of 18 years in mines.

Bonded Labour System (Abolition) Act, 1976: This act provides for the protection of weaker sections of society economically and physically. Providing the punishment for those who are involved in acts of bonded labour. The government provides compensation to the victims of bonded labour and rehabilitation³.

The Child Labour (Prohibition and Regulation) Act, 1986: This act provides a detailed view of places where children are allowed to work and where not. This act provides a list of 13 places and 57 processes where children are not allowed to work. 

Child Labour (Prohibition and Regulation) Amendment Act, 2016: This act prohibits the employment of persons who have not completed the age of 14 years. Also, a complete ban on persons between the age of 14 and 18 years working in hazardous factories.

Child Labour (Prohibition and Protection) Amendment Rules, 2017: This provides an overview of prevention, protection, rescue, and rehabilitation of children and adolescent workers and also provides fixed working hours and other environment-friendly conditions for working.

IMMORAL TRAFFIC (PREVENTION) ACT, 1956

Section 3: Provides punishment to a person responsible for having a brothel or renting someone a place to be used as a brothel.

Section 4: Punishment for those who are above the age of 18 years and living on the allowances that come through someone being a prostitute.

Section 5: Punishing those who are involved in inciting a person for the sake of prostitution.

Section 6: It punishes the one who detains another person with or without their consent to any brothel or any place that is for prostitution with having an intention that the person who is detained is to have sexual intercourse with any person who is supposedly the spouse of the detained person.

Section 7: Any person who carries out prostitution or the other person with whom the prostitution is carried out is in the proximity of public places including hospitals, clinics, hostels, education institutes, or in any other area i.e., mentioned in provisions of this act is punishable with a term of imprisonment of 3 months.  

Section 8: Luring someone for the purpose of prostitution in first conviction punishable with imprisonment of 6 months and a fine up to Rs. 500. In case of second conviction imprisonment of a year inclusive of fine of Rs. 500.

Section 18: Magistrate has the power to order the immediate closing of a location used as a brothel and located within 200 Meters radar to any public place. The owner is only given 7 days to evict from such a place.

Section 20: Magistrate has the power to order any person who is in the profession of prostitution and residing in any area within the jurisdiction of the concerned Magistrate to be present before the court and show cause why he should be allowed to continue to live in that area.

Section 21: State government may direct and establish enough protective homes and corrective institutions and their maintenance as mentioned under this act. If the procedure is not followed as mentioned in the act, may be liable for punishment.

Section 22A: If the State government believes that cases related to offences mentioned in this act should be decided through speedy trial, it may along with consultation of the state High Court may establish more courts for Judicial Magistrate First Class or Metropolitan Magistrate in any such area.

Section 22B: Irrespective of anything that is mentioned in CrPC state government has authority to direct the trial of any offence mentioned under this act shall be done in a summary way by the magistrate.

Supreme Court passed an order in the case of Gaurav Jain v. Union of India³ that a committee must be constituted for an in-depth study of problems faced by prostitutes, child prostitution, and children of prostitutes and help them through suitable schemes that help in their rehabilitation in society.

INDIAN PENAL CODE, 1860

Section 360: Whosoever he/she may take any person beyond the premises of India without his consent or any other person who is authorized to give consent on behalf of that person is called an offence of kidnapping a person from India.

Section 361: Whoever lures or takes a minor i.e., under the age of 16 years for males and under the age of 18 years for females or any other person who is incapable of giving his consent is stated as kidnap a person from the custody of his lawful guardianship.

Section 362: Any person who got trafficked is also a victim of abduction as the person was forced to move from a place of his/her choice.

Section 363A: Prescribes the punishment for those who kidnap and cripple a person of minor age for purpose of begging.

Section 366A: Provides punishment for any person who entices any minor girl to move from one place to any other place where she may be forced to have sexual intercourse with another person.

Section 370: Punishment for the persons who are involved in the trafficking of human beings and in any other acts related to human trafficking.

Section 372: If any person who sells disposes of, or lets her be hired for the purpose of prostitution any person who is below the age of 18 years shall be liable for imprisonment for up to 10 years with a fine.

Section 373: If any person buys, obtains, or hires any person who is below the age of 18 years shall be liable for imprisonment for up to 10 years with a fine.

GOVERNMENT’S ATTEMPT

The Ministry of Home Affairs of India has introduced a scheme ‘Strengthening Law Enforcement Response in India Against Trafficking’ under the scheme 330 Anti Human Trafficking Units will be established throughout the country and training would be given to up to 10,000 police officers. Funds as the first instalment for the same were released by the government in the year 2010-2011 to all state governments. Around 85 units have already been established all over India.

Ministry of Women and Child Development provides a scheme called ‘Ujjawala’ that provides for measures to be taken for preventing human trafficking, rescue, and rehabilitation of the victims. With the help of funds granted for scheme 101 centres that provide for rehabilitation and can be home to 4056 victims.⁴

CONCLUSION

Supreme Court claimed that when a child is given in adoption, he/she must be treated well and great care must be taken especially in cases of inter-country adoption so that the child must have moral security and must not end up being a product of sale and purchase for the foreign parents⁵. Even after the implementation of many schemes by the government of India still records more than 5,000 registered cases of human trafficking for a year and India comes under Tier 2 in the index of human trafficking meaning a moderate level of crime. While some people do not even register FIR for the offence due to lower rates of successful conviction in the cases.

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CITATIONS

1. Vishal Jeet v. Union of India 1990 AIR 1412.
2. 1982 3 SCC 235.
3. 1997 8 SCC 114.
4. Bandhua Mukti Morcha v. Union of India, 1984 AIR 802.
5. Laxmi Kant Pandey v. Union of India, 1984 2 SCC 244.

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This article is written by Simran Gulia currently pursuing a BA LLB from Maharaja Agrasen Institute of Management Studies.