#lawstudent – Page 69

Equivalent citations:

1993 SCR (1) 58, 1993 SCC (1) 589

Bench:

AHMADI, A.M. (J)

BENCH:

AHMADI, A.M. (J)

PUNCHHI, M.M.

RAMASWAMY, K.

Date Of Judgment –

11/01/1993

Acts –

Arbitration Act, Registration Act, Indian Partnership Act

Facts:

A business was run in collaboration consisting of 6 brothers namely four appellants and respondents 1 and 2.in due time, conflicts arose among the 6 brothers regarding the business run by them. By addressing the disputes to three arbitrators, they entered into a negotiable agreement that would serve their purposes. After lending an attentive ear to the parties, they entered upon the reference and circulated a draft award. After contemplating the reaction of the squabblers, a final award was drafted by the arbitrators where each one of the 6 brothers got their fair proportion of the valuables and worldly riches. Some of the disputants filed a petition pleading for a direction to the arbitrators to lodge their award in court; a petition requesting the court to pass a decree in terms of the award was also submitted to the court.

Two other squabblers filed a petition under section 30 of the arbitration act to set aside the award. All these matters were given an ear to by a single judge. It was contended before him that having regard to the allotment of partnership properties including immovable objects under the award. Registration of the award was obligatory under section 17(1) of the registration act and since it lacked registration the court had no jurisdiction to consider it as the rule of the court and grant a decree in terms thereof.

Ratio Of The Court:

SC. Addanki Narayanappa V. Bhaskara Krishnappa –

The members of the two joint families, the Addanki family, and the Bhaskara family had thrown themselves into a partnership for running a business of hulling rice. Each family was given half share in that venture. The capital required for the business consisted of certain lands possessed by the two families. In the course of business, the firm attained more lands. Differences arose and a suit for dissolution was filed by the members of the two families. All the members were made parties to the suit either as plaintiffs or as defendants. The Bhaskara family grappled within the boundaries of defense that the partnership was disintegrated back in 1936 and the matter was brought to an end between the two families under a karat executed in favor of Bhaskara Gurappa Setty, the head of the Bhaskara family, by 5 members of the Addanki family representing that family. The defendants argued that the plaintiffs had no cause of action and the suit for dissolution of partnership and accounts was not maintainable.

In Commissioner of Income – Tax, West Bengal, Calcutta v. JUggilal Kamlapat–

This court pointed out that the deed by one in which one person releases his legal right to the property – the deed of relinquishment, was to serve the interest of the three brothers in the assets of the partnership firm in favor of the Trust and consequently did not require registration even though the assets of the partnership included immobile objects.

Madhya Pradesh v. Dawes Cine Corporation –

After the dissolution, a pact was decided between the farmers that the theaters should be returned to their actual owners.

U.P. v. Bankey Lal Vaidya –

This court pointed out that on the dissolution of the partnership, the assets of the firm are valued and the partner is paid a certain amount in lieu of the share of his assets. The transaction is not a sale, exchange, or transfer of the firm and the amount received by the partner cannot be considered as capital gains.

Malabar fisheries co. Calicut v CIT –

No separate rights were given to the firm as such and the partners jointly own the assets of the partnership. The distribution, division, and allotment of the assets are a resulting factor of the mutual adjustments between the partners and there is no chance of the abolition of the firm’s rights in the partnership assets amounting to the transfer of assets within the meaning of s. 2(47) of the act.

Decision Of The Court:

The Supreme Court held that the stock of property acquired by the firm in the course of business shall constitute the property of the firm unless the firm provides otherwise. It further held that since the partnership is not a legal entity and is only a succinct part, where each partner has beneficial interest and he can never claim any earmarked portion. Therefore when he receives any property from the residue it cannot be evaluated that he had a definite limited interest in the property and there is the transfer of the remaining interest in his goodwill within the meaning of section 17 of the Registration Act.

The case analysis has been done by Shruti Bose, a student at Christ (Deemed to be University), Lavasa.

The case analysis has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith,

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Introduction:

Short for pro bono publico [Latin, For the public good]. The task given to the free legitimate work done by an attorney for devastated clients and severe, charitable, and other non-profit components.

As people from a profession, lawful guides are restricted by their ethical guidelines to charge reasonable rates for their organizations and to serve the public premium by providing free legitimate help of destitute individuals or excessively severe, charitable, or other non-profit get-togethers. A lawyer’s free legitimate help of such clients is allotted as a pro bono organization.

The American Bar Association (ABA) has become a public herald in the work to overhaul pro bono genuine organizations. The ABA Center for Pro Bono helps ABA people and the genuine neighborhood making and supporting effective pro bono legitimate organizations in like manner matters as a segment of the profession’s work to ensure permission to Legal Representation and the value structure. The center makes, plans, and completes pro bono programs. It upholds a yearly assembly for bar pioneers, pro bono program directors, legal help staff, and others drawn in with the transport of pro bono legal organizations to poor people.

Meaning of Pro Bono Publico:

Pro bono is short for the Latin expression pro bono publico, which signifies “for the public great.” The term for the most part alludes to administrations that are delivered by a professional free of charge or at a lower cost. Professionals in many fields offer pro bono administrations to non-profit associations. These associations incorporate clinics, colleges, public causes, holy places, and establishments. It is likewise conceivable to accomplish pro bono work for singular customers who can’t bear to pay.

Requirements of lawyers:

Each attorney has a professional obligation to provide lawful administrations to the individuals who can’t pay. Under the American Bar Association (ABA) Model Rule 6.1, an attorney ought to seek to provide something like 50 hours of pro bono legitimate administrations each year.

Some law offices and nearby bar affiliations may suggest less or more long stretches of pro bono administration. Numerous law offices and paralegal affiliations suggest that paralegals additionally play out a specific number of pro bono hours out of each year.

Most state bars force their own requirements, yet the greater part of them allude to pro bono work subsequent to becoming authorized. New York is the solitary state in the U.S. that expects individuals to perform pro bono administrations to be conceded to the bar and become authorized to specialize in legal matters. In 2012, New York started requiring law understudies to finish 50 hours of pro bono lawful administrations to try and round out an application for bar affirmation. Different states have proposed such measures, yet none have passed them.

Related cases:

1. In all actuality, the Courts had even been treating a letter or wire sent off them as a public interest prosecution by loosening up the procedural laws especially the law relating to pleadings. We need not augment further seeing this matter as a Bench of this Court in Guruvayur Devaswom Managing Committee and Anr. Versus C.K. Rajan and Others [JT 2003 (7) SC 312] took note:

“The Courts practicing their force of legal audit found to its disappointment that the most unfortunate of poor people, debased, the unskilled, the metropolitan and provincial disorderly work area, ladies, youngsters, incapacitated by ‘obliviousness, poverty and ignorance and other down trampled have either no admittance to equity or had been denied equity. Another part of proceedings known as ‘Social Interest Litigation’ or ‘Public Interest Litigation’ was developed so as to deliver total equity to the previously mentioned classes of people. It extended its wings in the process of working out. The Courts in pro bono publico conceded alleviation to the detainees of the penitentiaries, provided lawful guidance, coordinated rapid preliminary, upkeep of human respect, and covered a few different regions.

2. Delegate activities, pro bono public, and test prosecutions were engaged in keeping with the current complement on equity to the everyday person and a fundamental disincentive to the individuals who wish to bypass the main problems on the benefits by suspect dependence on fringe procedural deficiencies. (See Mumbai Kamgar Sabha, Bombay Vs. M/s. Abdulbhai Faizullabhoy and Others (1976) 3 SCR 591).

The Court in pro bono publico proceedings mediated when there had been insensitive disregard as an arrangement of State, an absence of probity in open life, maltreatment of force in charge also, the annihilation of climate. It additionally protected the detainees of jails and homes. It looked to control double-dealing of work rehearses.

3. Moreover, even where a writ request has been held to not engage capable on the ground or in any case of absence of locus, the court in the bigger public interest has engaged a writ appeal. In an appropriate case, where the solicitor may have moved a Court to his greatest advantage and for redressal of the individual complaint, the Court in the encouragement of public interest might treat it as a need to inquire into the situation of the subject of the case in light of a legitimate concern for equity. Consequently, a private interest case can likewise be treated as an open interest case. (See Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi AIR 1987 SC 294) We, thusly, don’t concur with the entries of the learned guidance of the appellants that the respondent had no locus to keep up with the public premium suit or the writ request documented by him pro bono publico under the watchful eye of the High Court was not viable.

4. Two or three months prior, the judgment of the Supreme Court in B. Sunitha v. Territory of Telangana made a significant ripple in the lawful circles just as among general society on the loose. This was set off by the media detailing that the Supreme Court (in the judgment) had communicated the need to “present authoritative changes for a successful administrative system to check infringement of professional morals by lawyers and furthermore guarantee admittance to lawful administrations by directing the galactic expenses charged by them”. Fascinatingly, a perusing of the judgment proposes a totally different story. In the closing passage of the judgment, the Supreme Court communicated:

28. … trust that the specialists worried in the Government will take perception of the issue of presenting imperative authoritative changes for a viable administrative instrument to check infringement of professional morals and furthermore to guarantee admittance to lawful administrations which is a significant segment of admittance to equity ordered under Article 39-A of the Constitution.

Conclusion:

For an assortment of reasons, there is a rumor that state bar relationships in the future might require its individuals to play out a set number of long periods of pro bono administration every year. Despite the fact that lawyers may owe obligations to perform pro bono administration for penniless defendants which are truly, naturally;’ essentially, and morally based, just as need-based, ordering that such administration be made accessible to penniless common defendants might raise authentic concerns. This observational study uncovers some fascinating ramifications regarding the recent concerns encompassing pro bono.

The study analyzed the relationship encompassing pro bono execution and three gatherings of factors: (1) firm execution; (2) hierarchical design; and (3) minority participation. Firm execution was contrarily, and as a rule, fundamentally identified with pro bono performance at the end of the day, the presentation of all the more pro bono administration has all the earmarks of being related with lower generally speaking firm execution. Firms with higher pro bono scores seem to procure not exactly those organizations with lower scores. Then again, pro bono execution was not identified with firm size; that is, in the number of inhabitants in huge firms, apparently pro bono administration is harsh toward size. Of the eight authoritative construction factors, just the quantity of unfamiliar branches, paralegals, and care staff was related with pro bono execution at a critical level, and these factors were adversely related. The finding in regards to paralegals and care staff is to some degree debilitating since firms with more paralegals and backing staff probably could provide preferred pro bono administration over firms with not so great. At last, pro bono execution unmistakably was contrarily identified with the portrayal of minorities in firms. The solid negative connection between for all intents and purposes each proportion of minority portrayal and pro bono execution is astounding. It is possible that Loyola University Chicago Law Journal even minority lawyers in huge firms are socially taken out from the customers served in pro bono endeavors.

The article has been written by Vrunda Parekh, a 2nd-year law student at United World School of Law, Karnavati University.

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

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The Maternity Benefit Act 1961 was enacted to maintain stability in the employment of women working in factories, mines, plantations, shops, and other areas. It provides 12 weeks of paid leave to women employees before or after childbirth.

The 44th session of the Indian Labour Conference (ILC) put a recommendation to extend the period of maternity leave from 12 weeks to 24 weeks. Later During the 45th and 46th sessions of ILC, The purpose for enhancement of maternity leave was taken into consideration and acknowledged.

It aims to regulate the employment of women employees in certain establishments for a particular period before or after the baby is born.

The Maternity Benefit Act originally provided a Maternity Benefit of 12 weeks. In 2017, the law was amended to extend the period to 26 weeks.

What Is Maternity Leave?

Maternity leave is a period of leave from her work when the woman’s employer is pregnant or in other words, Maternity leaves in India is a paid leave of absence from work that allows women employees to take care of their newly born baby, and gives benefits of retaining their jobs at the same time. Maternity leave is a right of every working woman and no woman should be deprived of it.

As per The Maternity leave Benefit Act, 1961 women employees get paid leave of 12 weeks after delivery for taking care of a newborn baby. In 2017, The Maternity leave Benefit Act was amended which brought a lot of necessary amendments in the act.

What Were The Amendments Brought Under This Act?

PAYMENT: Payment is calculated on the basis of the average daily wage for the period of absence.

EXTENSION OF PERIOD: The Maternity Amendment 2017 has extended the period from 12 weeks to 26 weeks. The pregnant woman can divide her leave as post and pre-delivery.

Period of leave for women who are expecting before having 2 Children [Sec 5(3)]: 26 weeks

Pre–Delivery Period: up to a maximum of 8 weeks

Post–Delivery Period: remaining period out of 26 weeks.

Period of leave for women who are expecting after having 2 Children [Sec5(3)]: 12 weeks

Pre–Delivery Period: up to a maximum of 6 weeks

Post–Delivery Period: remaining period out of 12 weeks.

ADOPTIVE MOTHERS: The period of leave is 12 weeks. The large starts from the day of adoption and is only applicable for the baby below three months of age [Sec5(3)].

COMMISSIONING MOTHERS: Maternity leave is of 12 weeks leave for the biological mother who imparts her egg to create an embryo which is then planted in another woman [Sec5(4)].

TUBECTOMY DURING PREGNANCY: In case of tubectomy, a woman is allowed to take 2 weeks to leave, from the date of tubectomy operation.

Maternity Benefits And Indian Constitution:

Article 15 – Right to social equality.

Article 15(3) – The main objective of this article is to keep in view the weak physical position of women – “Protective Discrimination”

Article 16 – Right to social equality in employment

Article 21 – Right to life and personal liberty, therefore women employees must get all the facilities and assistance that she requires during pregnancy.

Article 39(d) – Right to equal pay for equal work

Article 39(e) – Right that health and strength of workers should not be abused

Article 41 – Provision for securing the right to work and to education

Article 42 – State shall make provision for securing just and humane condition of work and for maternity relief

Article 46 – Right to improvement in employment opportunities and conditions of the working women

Importance Of Maternity Benefits Act:

The fundamental purpose for providing maternity benefits is to preserve self-respect, to protect the physical and mental health of women, and to complete the safety of the Child. The main objective of the Maternity benefit is to protect the dignity of “Motherhood” and provide complete health care to women and their children. It also benefits to safeguard working women.

Norms Under The Maternity Leave:

The employer should ensure the health and safety of her employee. She must not get long working hours or difficult tasks, ten weeks before the delivery. She should not be involved in any work for 6 weeks after the delivery or miscarriage. Employers cannot discharge or dismiss a woman employee during her maternity leave.

Compensation Rules And Benefits Under The Act :

A medical bonus is entitled in addition to maternity leave if free medical health care is not provided. Mother can further get a benefit of Rs. 6000 under NATIONAL FOOD SECURITY ACT, 2013. An additional paid-up leave of 1 month after 26 weeks of Maternity leave if women show proof of being physically or mentally unfit to join . 2 nursing breaks are allowed in between the working hours until the baby turns 15 months old.

Disadvantages Of The Maternity Benefits Act:

The Maternity Benefit Act is not applicable in establishments with less than 10 employees or in the unorganized sector. The act does not create a provision for paternity leave. The act puts the burden of crèche facilities and maternity leave on employers.

Different Schemes Implemented By The Central Government For Maternity Benefits:

Indira Gandhi Matritva Sahyog Yojana (IGMSY)
Rajiv Gandhi National Crèche Scheme For Children of Working Mothers

Conclusion:

The Maternity Benefit Act is a boon for working women as they don’t have job insecurity during their maternity period. Also, it provides a satisfactory duration of time for taking care of women as well as their child’s health. It also supports women and makes them economically strong. There are some loopholes that need to be filled like clarification is still awaiting for crèche facility, work from home, and accessibility of this act in unorganized sectors.

The article has been written by Kiran Israni, 3rd Year Law Student of Baba Saheb Ambedkar College of Law, Nagpur.

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

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Introduction

Every society has its rules and regulations to control crime and punishments for the violation of the law. Criminal Justice is the system of practices and institutions of government directions to control crime. Double jeopardy is also part of the criminal justice system. The double jeopardy concept came to the abolition of double conviction for the same offense. It is based on the legal maxim ‘Nemo debet bis vexari, si constat curice quod sit pro una it made causa’ means man cannot be punished twice if the court has convicted him for the same offense. This maxim is mentioned in Section 26 of the General Clause Act and Section 300(1) of CrPC. It also follows the “Audi alteram” that no person can be convicted for the same offense. The doctrine of double jeopardy is defined under Section 300 of CrPC.

Under the Constitution of India

Double jeopardy is the fundamental right (Part III) under Article 20(2). Article 20(2) defines double jeopardy “no person shall be charged and punished again for the same offense.” The term prosecution has three essential components under this article.

Three essential components of prosecution have:

The person should be accused of an offence. The term an act or omission is punishable by law.
There should be a proceeding and prosecution of the case before the court or judicial tribunal. The defence of double jeopardy is only for those cases that have been decided under the judicial tribunal.
When the tribunal accepts the administrative and departmental inquiry, these inquiries are not considered as proceedings of the court.

The Constitution of India is considered only autrefois convict and not autrefois acquit, which means the concept is for those a person is prosecuted and convicted by the court.

In the case, Maqbool Hussain v. the State of Bombay, the appellant came from abroad and brought some gold. He does not mention to the airport authority that he had brought gold. The customs authority impounded the gold under the Sea Customs Act. After some time, he was charged under the Foreign Exchange Regulations Act. The appellant contended that the second prosecution was a violation of his fundamental right, Article 20(2). The court held that the Sea Custom authorities are not a court or judicial tribunal. The prosecution under the Foreign Exchange Act is not a violation of Article 20(2).

In this case, Venkataraman v. Union of India, the appellant, who was dismissed from her service after an inquiry by the Public Service Enquiry Act, 1960. Later, she was prosecuted under IPC and the Prevention of Corruption Act for corruption. The court held that the proceeding under the Enquiry Act did not amount to a prosecution. Hence, the second prosecution is not a violation of Article 20(2).

Criminal Procedure Code

The concept of double jeopardy is defined under Section 300 of CrPC and its exceptions.

Section 300(1) – It states that if any person is found guilty under the competent court and convicted for an offence, then a person cannot be acquitted for the same facts. The second trial against the person shall be for different facts or charges. Illustration – if a person is convicted under Section 221(1) then in the second trial he cannot be convicted again for Section 221(2) of the same Act.

This section does not include dismissal of a complaint or discharge of accusation.

Section 300(2) – It states that if the person has committed many offences but was not tried in the first trial then he cannot be prosecuted for other charges in the second trial. It means that when a person is convicted in the first trial, he cannot be convicted under the same facts with another offence separately. Before the second trial of a convicted person then it is necessary to take the consent of the State government.
Section 300(3) – It permits the second trial of a convict in those cases where new facts came and those facts did not exist in the first trial. This section is applicable for a conviction not in acquittal offences. The case will be retried only in those cases where some facts relating to the case have not come before the court.
Section 300(4) – This prescribes that after the new facts the person cannot be tried in the same court which does not have jurisdiction. The person shall be retried in a competent court which has jurisdiction.
Section 300(5) – It states that if any person is discharged under Section 258 of CrPC (the court has the power to stop the proceeding of the case at any stage with judgment). The stoppage could be after recording the evidence of a witness, the decision of acquittal or release of the accused has the effect of discharge. A person shall not be tried again for the same offence without the consent of the court.
Section 300(6) – It states that Section 300 of CrPC shall not affect Section 26 of the General Clauses Act. Section 26 of the General Clauses Act prescribed that if the offence which is committed by the accused falls under two enactments then the accused shall be punished under one enactment. But the dismissal of the complaint and discharge of the accused is not an acquittal. Illustration – A tried for grievous hurt and was convicted. The injured person has died. Then he will be convicted for homicide.

Institute of Chartered Accountants of India v. Vimal Kumar Surana, in this case, the court held that if a person is convicted again for different laws, it cannot amount to double jeopardy. The defendant was charged under the Chartered Accountant Act. The court held that it did not mean he is convicted under the Chartered Accountant Act, so he cannot be convicted under the Indian Penal Code. The accused cannot take defense under Section 300 of Cr.PC because the accused is charged under two different laws.

Conclusion

The concept of double jeopardy protects the accused so that he should not be convicted twice. Double jeopardy is defined under the Constitution and Cr. PC. In the case, Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, the court held that clause 1 under Section 300 is wider than Article 20(2). Article 20(2) states only a person shall not be prosecuted twice for the same offense. Section 300(1) states a person shall not be tried and convicted for the same offense or same facts but a different offense. If a person is convicted twice for the same offense, it is a violation of the fundamental right.

The concept intends to protect a person from multiple punishments for the same offense or to maintain the integrity of the justice system and to protect against the abuse of powers granted to criminal administration.

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

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

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Introduction:

Section 2 (b) of the Indian Contract Act, 1872 characterizes acceptance in these words: When one individual to whom the suggestion is made means his assent thereto, the recommendation should be recognized. An idea when perceived changes into an affirmation. In the declarations of Sir William Anson, Acceptance is to offer what a lit match is to a train of hazardousness. It produces something which can’t be checked on or fixed. However, the powder might have been laid till it has become moist or the person who laid the train might have pulled out everything except a lit match stick.

Definition:

Section 2(b) of the Indian Contract Act, 1872, defines an acceptance as “when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted becomes a promise”.

Communication of Acceptance

Method of Acceptance:

For the present circumstance of communication of acceptance, there are two factors to consider, the technique for acceptance and a short time later the situation of it. Permit us first to examine the technique for acceptance. Acceptance ought to be conceivable two, to be explicit

Communication of Acceptance by an Act: This would consolidate communication through words, whether or not oral or created. So, this will join communication through calls, letters, messages, sends, etc

Communication of Acceptance by Conduct: The offeree can moreover pass on his acceptance of the proposal through some activity of his, or by his direct. So say when you board a vehicle, you are enduring to pay the vehicle cost through your direct.

Timing of Acceptance:

The communication of acceptance has two sections. Permit us to explore

As against the Offeror:

For the proposer, the communication of the acceptance is done when he places such acceptance over the range of transmission. After this it is out of his hand to renounce such acceptance, so his communication will be done then.

As against the Acceptor:

The communication in the event of the acceptor is done when the proposer acquires information on such acceptance.

Revocation of Acceptance:

Section 5 moreover communicates that acceptance can be disavowed until the communication of the acceptance is done against the acceptor. No repudiation of acceptance can happen after such date.

Again, from the above model, the communication of the acceptance is finished against A (acceptor) on the fourteenth of July. So, till that date, A can renounce his/her acceptance, however not after such date. So actually, somewhere in the range of tenth and fourteenth July, A can choose to disavow the acceptance.

Lawful standards with respect to valid acceptance and related cases

Acceptance must be given to whom the offer was made.

An offer can be acknowledged simply by the individual or people to whom it is made and with whom it’s anything but an expectation to contract; it can’t be acknowledged by someone else without the assent of the offeror.

Law and order are evident that “assuming you propose to make an agreement with A, B can’t substitute himself for A without your assent.” An offer made to a specific individual can be legitimately acknowledged by him alone.

Related Case: Boulton vs. Jones

Acceptance should be absolute and unqualified:

To be authentically amazing it’s everything except an absolute and unqualified acceptance of a large number of terms of the offer. Surely, even the littlest deviation from the states of the offer makes the acceptance invalid. Basically, a wandered acceptance is seen as a counteroffer in law.

Acceptance should be communicated in some standard and sensible way, except if the proposal endorses the way wherein it is to be acknowledged:

In case the offeror suggests no strategy for acceptance, the acceptance ought to be passed on by some norm and reasonable mode. The standard techniques for correspondence are by catching individuals’ discussions, by post, and by direct.

Exactly when acceptance is given by words communicated or formed or by post or wire, it’s everything except an express acceptance. Right when acceptance is given by the lead, it’s everything except a proposed or gathered acceptance.

Recommended acceptance may be given either by doing some fundamental show, for example, following the lost items for the announced honor or by enduring some benefit or organization, for example, stepping in a public vehicle by a voyager.

If the offeror embraces a strategy for acceptance, the acceptance given properly will probably be a significant acceptance, whether or not the suggested mode is entertaining. Thus, if an offeror underwrites lighting up a match as a strategy for acceptance and the offer as necessities be lights up the match, the acceptance is reasonable and complete.

Regardless, what happens if the offeree gets sidetracked from the suggested mode? The reaction to this inquiry is given in Section 7(2) which communicates that in examples of diverged acceptances “the proposer may, inside a reasonable time after the acceptance is passed on to him, request that his recommendation will be recognized in the suggested way, and not something different; regardless, if he fails to do thusly.

Related case: Brogden v Metropolitan Railway

Acceptance must be communicated:

For a proposition to transform into an understanding, the acknowledgment of such a proposition ought to be conveyed to the promisor. The correspondence ought to occur in the supported design, or any such construction in the normal course of business if no specific design has been suggested.

Further, when the offeree recognizes the proposition, he probably understood that an offer was made. He can’t convey acknowledgment without data on the offer.

So, when a proposal to supply B with items and B is satisfying to all of the terms. He creates a letter to recognize the offer yet fails to post the letter. So, since the acknowledgment isn’t imparted, it’s everything except substantial.

Related case: Powell v. Lee

Acceptance must be given inside a reasonable time and before the offer lapses and additionally is revoked:

To be really amazing acknowledgment ought to be given inside the foreordained time limit, expecting to be any, and if no time is determined, acknowledgment ought to be given inside a sensible time considering the way that an offer can’t be kept open uncertainty (Shree Jay a Mahal Cooperative Housing Society versus Zenith Chemical Works Pvt. Ltd.).

Again, the acknowledgment ought to be given before the offer is disavowed or passes by reason of the offeree’s data on the death or franticness of the offeror.

Related case: Ramsgate Victoria Hotel Co Vs Montefiore

Acceptance should succeed the offer:

Acknowledgment ought to be offered to result in getting the offer. It should not go before the offer. In an organization, shares were circulated to a not applied for singular them. Henceforth, he applied for shares being oblivious to the past conveyance. It was held that the assignment of offers past to the application was invalid.

Examples: a piece of offers past to application invalid

Rejected offers can be accepted just, whenever recharged:

Offer once dismissed can’t be acknowledged except if a new offer is made.

Related case: Hyde v. Wrench

Conclusion:

Assessment of offer and acceptance is a standard contract law method used to assess whether a two-party game-plan exists. An offer means that their capacity to surrender to explicit terms beginning with one individual then onto the following. Accepting there is an express or proposed course of action, a contract will be outlined. A contract is said to seem when the acceptance of an offer has been encouraged to the offeror by the offeree.

when the offeree to whom the proposal is made, really recognizes the offer it will amount to acceptance. After a special offer is recognized the offer transforms into a guarantee.

The correspondence of the offer will be done concerning the data on the person to whom the offer is made and the correspondence of the acceptance will be done when the acceptance is put in a course of transmission to the offeror. Thus, offer and acceptance are the central parts of a contract and in any case, it should be done dependent on one’s total opportunity and complete goal on shutting a legally definitive game plan.

A legitimate acceptance should be in similarity with the accompanying standards. Without having great article end models before your eyes, it is hard to wind up the creative cycle on an incredible note. Acceptance should be clear and unambiguous. Finish the Contract on the Ground of the Offer, Fixing the Term of Acceptance. of the relative multitude of terms of the offer, and with no condition.

The article has been written by Vrunda Parekh, a first-year law student at United World School of Law, Karnavati University.

The article has been edited by Shubham Yadav, a fourth-year law student at Banasthali Vidyapith.

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Introduction

Long years back, during the ancient era of 1900 BCE in Babylon, if a man forced his sexual pleasure on someone’s wife or daughter is sentenced to death on the grounds of vandalizing someone else’s property. And in other parts of the ancient world, the laws defined rape as a property crime against the husband or father than the woman herself. Later during the 17th century, the Qing dynasty or British Empire had started to state rape as a crime against the woman herself but it was on the grounds of violation of her sexual purity. Due to the growth of middle-class mentality and Victorian morality in the age of 18th and 19th centuries, the accentuation on woman’s virginity had started increasing and rape was thus termed as a threat faced by women outside her household and it was made as a responsibility for the father and the brother to protect her from that. And it was from this basis the Indian penal code of 1860 had got its origin where article 375 considered rape as a crime done against women. From considering women as a commodity to an individual, our law had moved a lot forward but still in all these aspects we consider rape as a threat from the outside. And it is considered as not possible in a marriage because at the end of the day the wife is a husband’s property and he has a monopoly over her to do whatever he wants. Even though rape is considered as a threat to the individuality of a woman, our law fails to view rape in a marriage as a threat to the individual but as a right of an owner over his slave. As the feminist movements all over the world are asking women to report rape cases even if the perpetrator is strong or influential. But in India, it still continues to uphold a man’s right to rape a woman when they are married.

Definition Of Marital Rape

The word marital rape is defined as an act of forcing the spouse into sex without her consent. The lack of proper consent is an important aspect in the case of marital rape and no physical violence should be exerted over the spouse. Marital rape is considered a form of sexual abuse and domestic violence.

Social And Legal Status Of Marital Rape In India

Even though rape is considered as an attack over a human being’s individuality in our statute but the mentality towards rape in India considers it as an injury of the victim’s family honor. Domestic violence is a deeply established issue in India. The national crime records bureau’s “crime in India 2019” report discovered that in India 70% of women are victims of domestic violence. Domestic violence can occur in different forms. One such embodiment of domestic abuse is marital rape. In this 21^st century, over 100 countries impeached marital rape but in India, it’s still legal for a husband to rape his wife. Even though lots of amendments have occurred in criminal law as a result of feministic movements like:

The criminal law (second amendment), 1983
Amendment to Indian Evidence act, 2002
Protection of children from sexual offences(POCSO), 2012
Criminal law (amendment) law, 2013

The non- penalization of marital rape undermines the rights and dignity of women as human beings. Rape which is referred to as a crime under article 375 in the Indian penal code, 1860 includes all forms of sexual abuse without the consent of the woman. The non- criminalization of marital rape in India originated from exemption 2 to section 375 where it exempts unwilling sexual relationship between a husband and a wife over fifteen years of age. This proves that in India the wife is presumed to deliver “implied consent” to have sex with her husband after their marriage. Our society still considers women as property over which a man first as her father then as her husband has a monopoly on and fails to accept a woman as an individual who is entitled to have agency or autonomy over her body and individuality. It’s not only the social mentalities that are demeaning but also the legal approach towards it is quite disheartening.

“However brutal the husband is when two people are living as husband and wife can sexual intercourse between them rape?”

These are lines stated by our former honourable chief justice sharad arvind bobde while dealing with a case of marital rape. It is not a unique or a single case but there are multiple petitions filed regarding marital rape. In Arnesh Kumar Vs. state of Bihar [1], the Supreme Court stated that penalising marital rape can lead to the collapse of social and family systems.

The all-India democratic women’s association had filed a PIL in Delhi court in January 2015 stating penalization of marital rape but due to the covid-19 pandemic, the PIL is getting delayed. A bill named “women’s sexual, reproductive and menstrual rights, 2018” was introduced by MP Shashi Tharoor in parliament but later failed to garner maximum support from the house. In India, we mostly consider rape as a threat to honor or chastity of the woman or her family and we fail to regard it as harmful to a person’s individuality and dignity. That is the reason behind the belief that getting the victim married off to the perpetrator can save a woman from losing her honor. The Supreme Court had asked the rapist to marry the victim while they were dealing with the bail request filed by Mohit subash Chavan, a technician with the Maharashtra state electric production company. He raped a 16-year-old minor who was his distant relative. This seems to be like romanticizing the relationship between a victim and a culprit. In any relationship, the key aspect is respect for each other. No one has authority over anybody. All these mentalities arise from our social conditioning where we are constantly conditioned as a woman is the responsibility of a man. All will get altered once we start respecting an individual’s personhood, choices, desires, and consent.

Legal And Constitutional Rights And Provisions Regarding Marital Rape

Most of the time the victims withdrew themselves from filing a complaint against the culprit because of the fear of breaking the marriage, societal pressure, children, etc. even though marital rape is not criminalized but it actually violates several existing rights of a citizen. While raping an unmarried woman is termed a crime, raping a married woman is considered to be legal. This shows an inequality among the individuals on the basis of their marital status thus violating the norms of article 14(right to equality). It also questions the purpose of article 375 where it promises protection and justice for women from sexual exploitation but it fails to protect a married woman from the consequences of marital rape where it is difficult for her to come out of such a relationship when the wife is both legally and financially bonded to her husband. The norms regarding marital rape also harm the real ideology of Article 21. In article 21, the constitution guarantees the right to health, dignity, privacy, safe living conditions, etc. In the case of the state of Karnataka vs. krishnappa [2], the Supreme Court stated that sexual assault apart from the dehumanizing acts is an unlawful invasion into the right to privacy of the woman. The court also held that sexual intercourse without consent accounts for physical and sexual violence. In the case of suchita Srivastava vs. Chandigarh administration [3] states that every individual has the right to make decisions or choices regarding sexual activity and equates it with personal liberty, privacy, dignity, and integrity. Under justice K.S. puttaswamy vs. union of India [4], the supreme court of India mentions the right to privacy where it also includes the ability to make intimate decisions. Under all these cases the Supreme Court had recognized the right to abstain from sexual activity for all women irrespective of their marital status. Now dealing with the remedies for marital rape, the possible remedy which can be provided is the protection of women from the domestic violence act, 2005. This act states forced sexual intercourse as an act punishable under Indian law. Section 498A deals with punishment of three years and a fine for cruelty committed against a woman by her husband or his relatives. However, a magistrate can’t punish a husband by stating he raped his wife. Still, the idea of marital rape is stuck in the patriarchal ideology. We need to walk a long way ahead to realize that consent is important in every relationship.

The Future Aspects Of Marital Rape

For India as a developing country, marital rape still being legal is a great threat to its social development. From women considered as commodities with mere rights to individuals with equal rights and responsibilities, we had moved a lot forward. But considering a married woman as a husband’s property is more like going back to our old belief system. There are certain steps taken at both the global and national levels to protect and provide a safer place for every woman from their abusive spouses. The United Nations declaration on the elimination of violence against women had released their comment on harassment against women as:

“Any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life”.

UN committee on the elimination of discrimination against women (CEDAW) had advocated the Indian government to penalize marital rape. The JS Verma committee was set up as a result of the massive nationwide protests over the Delhi gang-rape case held on December 1, 2012. The criminalization of a crime like marital rape can not only protect women from an abusive relationship but can also make society understand that marital rape itself is a crime and no woman is anyone’s commodity but an individual who has the right to live her life with dignity and choices.

Conclusion

Marital rape is a menace towards a woman’s dignity and criminalization of it will be a fight against the notion of marital sanctity that is based on the subjugation of women. It challenges the age-old rape culture that denies a woman her basic rights, dignity, respect, and autonomy over her own body.

The article has been written by Nourien Nizar.

The article has been edited by Shubham Yadav, a law student from Banasthali Vidyapith.

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Introduction

The Indian constitution was drafted in the mid-twentieth century which gave an advantage to constitutional makers, in so far as they could take cognizance of the various constitutional processes operating in different countries of the world and thus draw upon a rich fund of human experience, wisdom, heritage, and traditions. The emergency provisions are taken from the Weimar Constitution of Germany. After the second world war, the allied forces to safeguard their troops still stationed in Germany asked for the formation of emergency provisions.

Similarities between German and Indian provisions

To understand the reason for taking emergency provisions from Germany we first need to establish what are the provisions in particular taken from Germany. Firstly, like India Germany also has 2 houses namely the Bundestag and Bundesrat, secondly like state emergency in India there is an internal emergency in Germany and the national emergency is common in both countries. The situation of both the countries are not similar before the proclamation of emergency like for example India follows common law and Germany is a civil law country, however, once the emergency is proclaimed both countries place similar restrictions on their citizens and this is an important factor by which one can say emergency provisions are taken from Germany, It is not the before effect that matches between both the countries but it is what happens after the proclamation of emergency that matches.

One can argue that the aftereffects of emergency are similar in all countries worldwide, but the statement holds negligible truth. Like in countries where dictatorship exists fundamental rights are also suspended like in the case of North Korea, Turkey, Russia. Where the top leader holds absolute power to change the terms during an emergency. In recent times there is an example of Myanmar where the military threw out the democratically elected government led by Au Su Khi and imposed a martial rule suspending all the rights of the citizens. Even the basic right to life is hindered and the military explicitly kills the protesting citizens. Other provisions from Germany include suspension of fundamental rights during an emergency, apart from this all the other provisions too are from the Weimar constitution.

Discussions by the drafting committee

While discussing the draft Art. 275 (Art. 352) that dealt with the promulgation of emergency H.V. Kamath warned the assembly about the German experience where Hitler used emergency provisions to establish a dictatorship, however, Hitler invoked many of the provisions of the Weimar constitution such as Art. 48 of the Weimar constitution that provided for the president to notify all the actions to the parliament, this provision is missing in the Indian constitution as observed by H.V. Kamath.

An interesting fact emerged in this course is that the idea of a financial emergency was not taken from Germany, but it is from the American constitution which was implemented during the great depression as observed by Dr. B.R. Ambedkar.

During the debate between our constitutional makers for the emergency provisions, a total of 12 countries were taken into consideration where the UK was most referred to followed by the USA and Germany. If we say the emergency provisions are taken from Germany does not mean the whole of emergency provisions are from the German texts but it means that the national emergency and the state emergency provisions are only taken from the German texts.

Reason for the adoption of emergency provisions from Germany

Germany was the most experienced country among all in terms of dealing with armed rebellion, civil war, and internal security and because Hitler exploited the country’s emergency provisions a system of checks and balances was established by the allied countries in Germany to prevent any such chances of dictatorship.

The revised provisions and the amendments suggested earlier implemented in the year 1968 in the Federal Republic of Germany constitution made it the most favorable constitution to take emergency provisions from. Also, these emergency provisions were accepted and appreciated by all the allied countries around the world so it was best suited for India to take a reference from this nation. Under any form of government, a state of national emergency is considered as “hour of the executive” where the executives can misuse the authority, this was a matter of debate in the Federal Republic of Germany since the mid-1950s which Germany with numerous debates in their little parliament had resolved.

This also gives our constitutional thinkers a reason to refer to the German text as this stand was still unclear in most of the countries like the US. As emergency is such a sensitive matter only nations who had ample experience in dealing with it should be taken into consideration and Germany was one such country. Also, after the partition of India and Pakistan based on religion, chances of civil war could arise in India which the German people had already experienced, so it made sense to our constitution-makers to take ideas from Germany to tackle the situation if it arises.

The article has been written by Aakarsh Chandranahu, a student at Alliance School of Law.

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

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Case Number:

Civil Appeal No. 3717 of 1982, arising out of SLP (Civil) No. 8056 of 1981

Case Citation:

(1983) 1 SCC 22 : 1983 ALJ 488 : AIR 1983 SC 523

Bench:

D.A. Desai and R.B. Misra

Decided On:

18 November 1982

Section:

Section 32(1)(b) of the Indian Partnership Act, 1932

Section 32 of the Indian Partnership Act, 1932 deals with the retirement of a partner. Section 32(1)(b) has provided for the retirement of a partner in accordance with an agreement. According to this, a partner may retire if there is an express agreement between the parties for the same.

Facts of the Case

The plaintiff-appellant had filed a suit in the Trial Court for the dissolution of the partnership firm and also for the rendition of the accounts of “Shyam Bricketing Udyog”. The firm was situated in Etah in the state of Uttar Pradesh. which was also the principal place of business of the firm. The trial court granted the relief of dissolution effective from 23 November 1976 and also passed the decision in favor of rendition of accounts. The respondents-defendants were not pleased by this and approached the High Court. The High Court allowed the suit and set aside the concurrent findings. The High Court dismissed the suit of the plaintiff along with the costs. Thus this appeal is by special leave.

The plaintiff had filed a suit for the dissolution of the firm and rendition of accounts. He alleged that the partnership was at will and that the firm had been dissolved on 23 November 1976 by notice. The respondents argued that the partnership wasn’t, in fact, a partnership at will.

Issues before the High Court

Whether the partnership was a partnership at will
Whether the respondent (now appellant) was entitled to retirement or dissolution of the firm itself.

After listening to the arguments of both sides and after a thorough discussion, the High Court held that the partnership wasn’t a partnership at will. This court shall not take up the first contention and only take up the second contention.

The present issue before the Court

Whether the appellant is entitled to retirement or the dissolution of the partnership itself.

The ratio of the Bench

The two-judge bench of the Supreme Court did a thorough reading of Clauses 18 and 20 of the instrument of Partnership. The bench also discussed Section 32(1) of the same. Upon reading Clauses 18 and 20 the court observed that a partner can in fact disassociate from the firm. In the same way, Section 32(1)(b) provides for the retirement of a partner in accordance with the terms of the partnership The bench held that the High Court made an error and did not view the plaintiff’s contention from the correct angle. The High Court went into the appreciation of the contention as a breach of contract and did not go into the absolute right to retire from a partnership conferred by Clause 18.

The court upon a combined reading of the Clauses 18 and 20 observed that there was no bar on the right to the retirement of a partner within one year of the commencement of the partnership and that there was only a consequence to such an action. The consequence is that the capital shall not be refunded until the expiry of the period of one year.

The decision of the Court

The two-judge bench of the Supreme Court decided that the plaintiff had retired from the partnership and that such retirement is effective from the day of the institution of the suit.

They held that the partnership is not dissolved and that the accounts shall be taken up to and inclusive of the day which precedes the institution of the suit.

The case analysis has been done by Om Gupta, a first-year law student pursuing BBA-LLB from the University School of Law and Legal Studies.

The case analysis has been edited by Shubham Yadav, a 4th year Law student at Banasthali Vidyapith, Jaipur.

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Introduction

The prime rationale behind providing punishments is to make the wrongdoer pay the penalty for the wrong he did and to provide a message to society and deter them from committing the same. Capital punishment is an integral part of the criminal justice system also follows the same rationale. But as human rights movements are increasing and the ideology of considering a person as a fellow human being rather than his gender, race, religion, caste, etc. the rationality of capital punishment is being questioned.

Definition

The word “death penalty” interchangeably used as capital punishment means the state-sanctioned execution of a malefactor sentenced to death after conviction by a court of law for a criminal offense. The sentence that orders someone to be punished in such a manner is known as a death sentence and an act of carrying out such a sentence is called an execution.

Historical Background

“If a man destroys the eye of another man, they shall destroy his eye”

These lines are the core doctrine of the code of king Hammurabi

Of Babylon which originated at the age of 18^th century that led to the evolution of capital punishment. The statute prescribed capital punishment for over twenty different offenses depending on the defendant’s societal status. The crimes which are now treated lightly like theft; perjury, etc. were subjected to capital punishment in the Hammurabi Code. Later, the notion of capital punishment was adopted by different ancient statutes like the draconian code of Athens where the death penalty was considered to be compulsory for all types of crime, the roman law of twelve tables where they imposed capital punishments through various methods like burning alive, boiling in oil, drowning, hanging, being thrown to a wild animal, etc. Soon after its introduction, there was a hike in the number of capital punishments held in the 17th and 18th centuries for crimes ranging from theft, cutting down of trees, marrying a Jew, treason, etc. As the punishments started getting more stringent and heinous the jurists had started considering the death sentence only for serious crimes. This led to early reforms in the statute of the death penalty in Britain. It was not only in the statute but also several religious texts have justified the idea of capital punishment:

“Whosoever sheddeth man’s blood, by man shall his blood be shed” (Genesis 9:6) are the excerpts from bible that justifies capital punishment.
In Islam, capital punishment is entitled for certain crimes like apostasy, adultery, murder, those who conducts war against Islam and spies.

Capital punishment for murder was penalized in India after the independence in 1947 by the imposition of a penal code. But during the British regime, it was during the period of 1931 the fingers started pointing towards the constitutionality of capital punishment when Mr. Gaya Prasad Singh, a member of the British parliament introduced a bill to scrap the death penalty for all the offenses prescribed under the Indian Penal code. But the bill was denied during that time at the parliament by stating the impossibility to enact the bill. And after Independence, the government had retained several criminal statutes including the penal code of, 1860 thus penalizing the death penalty. Later on, during the period of 1950 to 1980 there over 3000-4000 capital punishments occurred in India. But it was the 1980’s landmark case Bachan Singh vs. State of Punjab [1] that became a turning point in the evolution of laws regarding capital punishment.

Bachan Singh Vs. State of Punjab:

In this case, the bench was headed by justice Y.C chandrachud, justice A.gupta, justice N.untawalia, justice P.N.bhagwati, and Justice R. Sarkaria. The issue raised in the case is regarding the constitutionality of section 302 of IPC, 1860 under which capital punishment is provided, and about the necessity to follow the facts identified by the lower courts for awarding capital punishment under section 354(3) of CRPC. The judgment of the case states that:

The court has dismissed the query against the constitutional validity of section 302 of IPC and 354(3) of CRPC and has also stated that the death penalty can only be imposed in rarest of rare cases, which means that conviction for life imprisonment is the rule and death penalty is an exemption. In India, we all have the right to life under article 21 of the Indian constitution so, that capital punishment is only imposed on serious crimes like aggravated murder, other offenses resulting in death, terrorism-related cases resulting and not resulting in death, kidnapping not resulting in death, drug trafficking not resulting in death, treason, espionage and military offenses not resulting in death. Minors, pregnant women, mentally challenged people are excluded from the death penalty. Hanging and shooting are the two methods that are adopted in India for the execution of the death penalty.

The first capital punishment was executed in September 1947 at Jabalpur central jail by hanging Rasha alias Raghu raj Singh and recently for Nirbhaya rape case by hanging four out of six culprits: Mukesh Singh, viny Sharma, Pawan Gupta, and Akshay Kumar Singh at Tihar jail. This was the first time where four convicts were hanged together on the same platform. Prior to this, the death sentence conducted in India was the 30th July 2015 hanging of terrorist Yakub Memon, who was convicted in the 1993 Mumbai blasts. Over 720 people were executed in India after Independence.

Current Status Of Capital Punishment Both Globally And In India

Global level:

There are over 58 countries that still follow the death penalty as a punishment. The convention against torture and cruel, inhuman, or degrading treatment or punishment stated that the execution or imposition of capital punishment will not amount to torture or inhuman. The death penalty was permissible under the international criminal law in Tokyo and Nuremberg tribunals which were formed during Second World War and from there onwards international courts exclude capital punishment as a permissible form of punishment. The death penalty is permissible as a punishment under the international convention on civil and political rights (ICCPR) but at the same time, article 6 under the convention guarantees the right to life and also imposes certain safeguards that are supposed to be followed by signatories before considering the death penalty. The ICCR also consists of a second optional protocol for the abolition of the death penalty. It came to light in 1991 and it has 81 state parties and 3 signatories. Under article 37(a) of the convention on rights of children strictly prohibits the imposition of the death penalty on minors (under the age of 18).

At the national level:

From jag Mohan Singh Vs. the state of Uttar Pradesh [2] then in Rajendra Prasad Vs. the state of Uttar Pradesh [3] till the landmark case of Bachan Singh Vs. In the state of Punjab, the apex court stated that in India death penalty can only be imposed in the rarest of rare cases. In India, we highly value the life of a human being under article 21 of the Indian constitution and it was stated that a person will only be executed for a death sentence if it has a fair and valid reason. The case should require some uncommon nature which makes the life imprisonment inadequate and enables the court to take away a person’s right to live. In India, our constitution also provides the right to seek pardon and get free from the death penalty. The mercy petition can be accepted by the president and governor under article 72 and article 161 in the Indian constitution respectively. 9 presidents have accepted mercy petitions with Rajendra Prasad being the president who accepted more petitions.

The Arguments For The Death Penalty

The major arguments that favor the idea of the death penalty are:

The major argument arises from the concept of Hammurabi code, where it considers the man who deprived the right of another man no longer deserves the luxury of human rights.
Certain crimes like rapes deserve heinous punishments like death penalty.
Awarding death penalty to the wrongdoers will prevent the society from committing the crimes.
Death penalty is given as a counter act of revenge by the victim’s family, which is a right that they deserve.
It is a strong deterrent for criminals.

The Arguments Against The Death Penalty

The common argument that stands against death penalty is that it takes an individual’s right to life.
Many countries execute mentally challenged people who might not even know that they have committed a crime.
In countries like Sudan and Iran death penalty is often used as a political device to execute their political propaganda.
The people who are disadvantaged to have proper socio-economic background are denied proper legal aid and it tends to emerge as a great disadvantage and will not enable the justice system to follow its ideology of justice to all.
There are high chances of a person proving to be innocent after the execution. In America, more than 184 prisoners sent to death row were later released from the row on grounds of innocence in 1973. The death sentence itself cannot ban fellow people from committing the crime

Alternatives For The Death Penalty

By providing value to the life of an individual and also providing the wrongdoer to understand his mistake and repent for the same, other alternative punishments are also provided.

Life imprisonment: it is an effective replacement for death penalty. In this type of punishment a culprit is put behind the bars without the privilege of parole which means that a person cannot leave the prison until he dies. But there is also life imprisonment which provides the luxury of parole. Life imprisonment without parole does have a similar effect that of a death sentence where a person is denied from leading a free and independent life.
Long term imprisonment: in this type of punishment, a culprit is sentenced for a fixed time period of 40 years. Its followed in several countries like: Brazil, Colombia, Croatia, El Salvador, Nicaragua, Norway, Portugal and Venezuela
Release with restrictions: under this punishment the culprit is released with certain restrictions for life long or a particular period of time. any infringement of these restrictions will enable the system to send him back to prison
Preventive detention: this is a type of detention where a person is detained for preventing him from committing a crime.it is mainly provided in case of serious violence or sexual assault where his release can be a threat to society.
Indeterminate term of imprisonment: in this type of imprisonment, a person is sent to jail for a minimum duration but can be prolonged thereafter.

Conclusion

During the time where nirbhaya rape case was a burning topic, BBC had filmed a documentary named India’s daughter where they interviewed the culprits and their family members. In that documentary, Mukesh Singh, one among the six culprits, was asked the question of whether he repents for the crime he did and the answer was a blatant “NO”. He said that no good girl will go out after 9 pm and if rape occurs it’s the girl’s fault than the boy. The main motive behind punishment is to make the wrongdoer pay the penalty and at the same time, it should deter society from committing the same. Not only in the above-mentioned case but in many other crimes the culprit themselves fails to understand their own mistakes. Other than killing someone for taking another’s life capital punishment sadly gets entitled to an act of mere revenge. It fails to implement its major objective of deterring society from committing the crime. There are lots of social, psychological, and legal aspects that are connected with the commission of a crime. Unless we aren’t able to identify and treat and plunder the reasons for the commission of crimes at the `grassroots level, capital punishment won’t be a solution for it.

The article has been written by Nourien Nizar, a first-year B.COM LLB (HONS) student of Government Law College, Ernakulam, Kerala

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

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