Tag: lawyers

INTRODUCTION

The reservation policy is the process of arranging in advance some percentage of seats for backward divisions of the society, scheduled caste, and tribes, in government institutions, jobs, etc. However reservation policy in India is an old-fashioned policy that has been carried out since ancient times, the theory of this policy is from the time when untouchability and ‘Varna’ systems were dominant in society (even though they still are) and when Hindu civilization was divided into 4 classes of Hindus:

1. The Brahmas
2. The Kshatriya
3. The Vaishya
4. The Sudra

Some communities belonged to no category and they were called untouchables. These were deemed to be impure and excluded from the other 4 classes. They were not permitted to inhabit the village and they had no social privileges. In some areas of the countries, people were convinced that even if their silhouette falls on the individual who belongs to one of the four classes, the person got impure. The savage system of the society was based on the theory of purity and impurity. It was an unbearable approach that was stalked and had a bad impact on the evolution of the people who were called untouchables. The design of reservations back at that time to be allowed to those castes of individuals was to furnish them with equal status and occasions in society and to raise them socially.

The pre-independence era blemished the dawning of reservation policy with the beginning of the Government Act of 1919. There were many mends in this act that were initiated by the Indian government at that time which conveyed many affairs of the minority. But the post-independence period had a particular scenario and the reservation policy attained even more admiration than in the pre-independence era. There was a formal presentation of the constituent assembly by Dr. BR Ambedkar who designed certain reservation articles and policies in the Indian Constitution devoted to the same purpose.

PROVISIONS IN THE INDIAN CONSTITUTION

• Article (15) (4) provisos for the evolution and growth of backward classes

Article 15(4) was instigated as an exception to Article 15(1) and (2) and was affixed with the first Constitutional amendment 1951 in the case of State of Maharashtra v. Champakam Dorairajan¹. A judgment was taken by the judge in this case which altered Article 15 and introduced a discrete clause for the improvement of socially and educationally backward classes of the society including scheduled castes and tribes. Article 15(5) was affixed by the Constitutional 93rd amendment Act 2006 that provided for the provisos for reservation of backward classes in private academic institutions. This was presented through a three-judge bench decision of Supreme Court cases T M Pai foundation vs. the State of Karnataka, Islamic academy vs. the State of Karnataka and, P A Inamdar vs. the State of Maharashtra.

Indra Sawhney v. Union of India (1992, nine-judge bench)- The court held that Article 16(4) is an authorizing provision and liberal in character while investigating whether a luscious lawyer should be prohibited from the horizon of reservation. The specification, the court noted, is an origin of reservation for allotments in services for people of backward classes.

Ajit Singh v. State of Punjab (1999, five-judge bench)- This case linked to the reservation in promotions and in case the reserved candidates, who get promotion would be authorized to claim rank over general candidates who earn a promotion at precedent in time.

• Article 16

Another article was proposed for the reservation of posts in public employment on the grounds of inhabitancy under Article 16(3) which was an exception to Article 16(2) that forbids prejudice on grounds of inhabitancy. Article 16(4) was also proposed for reservation for backward classes in public employment. Some other articles that veil the reservation policies are

1. Article 17 deals with the abrogation of untouchability.
2. Article 39A, the directive principles of state policies that guarantee equal justice to all.
3. Article 45 enforces an obligation on the state to maintain quality of living.
4. Article 332, 342 also proposed special provisos for divergent classes of people, like SC, ST, minority, etc.

While the reservation has been a vital part of the Indian legal system, a large number of people are opposed to the idea of the reservation which always triggers controversy. The chief purpose is not to inculpate reservation for minorities but to conquer the deficiency of job openings that have been produced because of the policies, especially on the basis of caste reservations.

BACKGROUND

Reservations, these days are rooted in caste is something which is opposing society and its interest. This sort of reservation is escalating hatred in society and generates an intuition of inequality between each other which is totally inconsistent with the purpose of reservation. A few years ago there was a reservation that was given to the Jain community on minority grounds but on the other side Jain community was regarded to be one of the richest sections in India and yet reservation was allocated to them. There is always a proverb that the caste system is inferior and some people are against it but at the same time, others are okay with it. This behavior is nothing but two sets of rules and hypocrite. The Government of India should take up this issue and give it a prime concern and remove this peril. The feasibility of abolition of reservation on the grounds of caste is a tough task, to eliminate it in one go is not possible but it surely can be eliminated over a span of 10 to 15 years. An expectation of bold commitment to these measures from the government for the elimination of the reservation is hoped from the society at large. Many analysts argue that the policies of the caste-based reservation have only been the critic lines in the Indian caste system and there are some politicians who have boldly elevated their concerns against the system asserting that it is not helping the reason for which it was meant and the founding father of the country didn’t visualize reservation system been arrange in a way in order to win votes.

Today events have come up to such an extent that each community senses that they have been maltreated and the requests have been refused because of this so-called caste-based reservation. Contemplating the fact of Dr. Ambedkar said that castes reservation should have been terminated in 1960 but we are still staggering under it in 2020. The key lectures of Dr. Ambedkar can be deliberately read and perceived that the allocation (quota) based on scientific social research is what sounds better with the perception of India which he thought were the reservation advantages would reach those populations that actually need it and not one who can go up on a ladder without creating efforts for it. In a simpler sense, people who have already achieved the ‘creamy layer’ do not require such kind of reservation in 2020. Unfortunately, this is not the process of working in India nowadays. Everyone can just babble about slashing down the caste-based reservation policies but when it comes to enforcing such things the big issue that lies is that 70% of the population of India belongs to the resort category and this is the figure from the 2011 report.

Therefore if any pass is taken to abolish the caste-based reservation it would clearly mean going against 70% of the population and the political party will venture not to go to that length. Therefore, it is required that Indians who wish to see the end of caste-based systems clearly go against it themselves because reservations do not solve the purpose of it. But it must also be acknowledged that it is not a utopia because there are a number of countries that have carried out this step, for example, the Bangladesh reservation system in government jobs was permanently abolished when the number of students trooped to the capital Dhaka to protest. Therefore, India should proceed towards a system free from caste where any person assures a seat in a college or government job only on the grounds of his or her merit and without any restrictions of the caste-based reservation.

ARGUMENTS OFFERED BY RESERVATIONISTS

1. Reservations are a bureaucratic demand in India.
2. Although Reservation policies do erode the grade of education but quite fair action has aided many people if not everyone from under-privileged groups to flourish and hold top spots in the leading industries of the world.
3. Even though Reservation policies do erode the standard, they are required to give social justice to the most underprivileged and vulnerable which is their human right.
4. Meritocracy is illogical without fairness. Basically, all people must be derived to a similar level, whether it uplifts a section or ease up another, despite merit.
5. Reservations have solely decelerated the procedure of “Rich becoming richer and Poor becoming poorer”.

ARGUMENTS OFFERED BY ANTI-RESERVATIONISTS

1. Intellectuals and philanthropists accept that reservation will segregate India. Reservation is tantamount to internal division because apart from being a form of caste discrimination, it also builds walls against inter-religious and inter-caste marriages. Most voters are discriminating against the newly created minority.
2. Caste Based Reservation only sustains the idea of caste in society and does not undermine it as a factor of social thought, as visualized by the constitution. Reservation is a means to fulfill narrow political ends.
3. Fair treatment can be given at a more broad level taking into account many factors of prohibition such as economic conditions, caste, gender, education, etc. The global plan of Fair treatment would be more helpful than reservations in directing concerns of social justice.
4. Assigning quotas is a type of discrimination which is conflicting with the right to
   equality.
5. As per the Mandal commission, 52% of the Indians come under the OBC category, while as per the National Sample Survey (1999-2000), this static is only 36% (32% excluding Muslim OBCs).
6. This scheme of the government has already provoked an increase in brain ooze and may annoy further. Graduates and undergraduates will initiate moving to overseas universities for higher education

EWS RESERVATION

The Central Government of India recently instigated EWS Reservation. 10% quota is given for the Economically Weaker Sections (EWS) between the General Category candidates in educational institutions and government jobs. This is implemented in the Indian Constitution (103rd Constitution Amendment Act, 2019) by including clauses for the same.

CONCLUSION

Therefore the reservation policy acquired in India with a sight to raise specific caste of people should be executed for the same reason only and not pull away the rights of people of the general class. Because the very purpose of presenting reservation is fading its essence in the 21st century. However, it is urgent to maintain the point and originality of the reservation policy, and not providing prejudice means two people reached the stairs of profit without even taking it.

REFERENCES

1. 1951 AIR 226, 1951 SCR 525.

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This 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.

Case Number

WP (Criminal No.) 115 of 2009

Equivalent Citation

AIR 2011 SC 1290, 2011 AIR SCW 1625

Petitioner

Aruna Ramchandra Shanbaug

Respondent

Union of India, State of Maharashtra, Dean- KEM Hospital Mumbai

Bench

Justice Markandey Katju, Justice Gyan Sudha Misra

Decided on

March 07, 2011

Relevant Act/Section

Article 21 of Constitution of India, Section 309, 306 of Indian Penal Code

Brief Facts and Procedural History

Aruna Ramchandra Shanbaug, the petitioner in this case, was a nurse at the King Edward Memorial Hospital in Parel, Mumbai. On the evening of November 27, 1973, a sweeper from the same hospital attacked her and used a dog chain to yank her back while wrapping it around her neck. Additionally, the sweeper attempted to rape her; however, when he discovered she was menstruating, he sodomized her instead. He tightened the chain around her neck in order to stop her from moving or causing any havoc. A cleaner discovered her body the following day, unconscious and covered in blood. It was thought that the chain’s strangulation caused the brain’s oxygen supply to stop, which led to brain damage. She entered a permanent vegetative state as a result of this incident, which permanently injured her brain (PVS). Later, journalist and activist Pinki Virani petitioned the Supreme Court under Article 32 of the Constitution, claiming there was no chance of her being resurrected and recovering. She ought to be released from her suffering and allowed to die through passive euthanasia.

The respondent parties, KEM Hospital, and Bombay Municipal Corporation submitted a counter-petition in response to this petition. The gaps between the two groups widened as a result. Due to the discrepancies, the Supreme Court appointed a group of three distinguished doctors to conduct an investigation and provide a report on the precise mental and physical state of Aruna Shanbaug. They thoroughly researched Aruna Shanbaug’s medical background and concluded that she is not brain dead. She responds differently depending on the situation. She favors fish soups and gentle religious music, for instance. If there are many people there, she feels uneasy and becomes upset. When there are fewer people around, she is at ease. The KEM Hospital personnel were adequately caring for her. She was constantly kept tidy. Additionally, they found no indication from Aruna’s body language that she was willing to end her life. Additionally, the KEM Hospital nursing team was more than happy to take care of her. Thus, the doctors opined that euthanasia in this matter is not necessary. She held this job for 42 years before passing away in 2015.

Issues before the Court

1. Is it acceptable to remove a person’s life support systems and equipment if they are in a permanent vegetative state (PVS)?
2. Should a patient’s preferences be honored if they have previously said that they do not want to undergo life-sustaining measures in the event of futile treatment or a PVS?
3. Does a person’s family or next of kin have the right to request the withholding or removal of life-supporting measures if the individual has not made such a request already?

Decision of the Court

This decision was made on March 7, 2011, by the prestigious Supreme Court of India Division Bench, which also included Justices Markandey Katju and Gyan Sudha Mishra. The Transportation of Human Organs Act of 1994’s definition of brain death and the doctor’s report were both used by the court to rule that Aruna wasn’t brain dead. She didn’t need the assistance of a machine to breathe. She used to exhibit various signs and felt things. She was in a PVS, but she was still in stable condition. The justifications offered here are insufficient to end her life. It wouldn’t be acceptable. In addition, the court stated during its discussion of the matter that Pinki Virani would not be the next-of-kin in this particular situation, but rather the personnel of the KEM Hospital. Therefore, KEM Hospital has the authority to make any such choice on her behalf. In this instance, it was the food that she was relying on for survival. As a result, removing life-saving measures, in this case, would entail denying her sustenance, which is not permitted by Indian law in any way.

The Supreme Court recognized passive euthanasia under specific circumstances. The High Court would have to approve the decision to end a person’s life after following the proper procedure, the court decided, in order to prevent future abuse of this option.

When a request for passive euthanasia is made to the High Court, the Chief Justice of the High Court must convene a Bench of at least two justices to decide whether the request should be accepted or denied. Before rendering a decision, the Bench should take into account the advice of a panel of three reputable physicians. The Bench also proposes these physicians after consulting with the pertinent medical professionals. Along with appointing this committee, the court also has to notify the state, kin, family, and friends and provide them a copy of the committee of doctors’ report as soon as it is practical. After the court has heard from all parties, it should then issue its ruling. In India, this method must be followed up till relevant legislation is passed.

Aruna Shaunbaug was refused euthanasia in the end after taking into account all of the relevant facts of the case. The High Court further ruled that if the hospital staff ever feels the need for the same thing, they may petition the High Court in accordance with the established procedures. By giving a comprehensive framework of standards that must be fulfilled, the decision in this case has helped to clarify the concerns surrounding passive euthanasia in India. The court also suggested that Section 309 of the IPC be repealed. Every aspect of the case has been covered in detail. Now, let’s talk about the appearance of two crucial characteristics that emerged in this situation and have been addressed previously. The court also advocated for the abolition of IPC Section 309.

India is now among the nations that have legalized passive euthanasia. However, there are still flaws in the way passive euthanasia is carried out. It was a laborious process because it was mandated that every case obtain approval from the High Court after the Shanbaug case. Passive euthanasia is now more difficult to put into practice thanks to the new ruling, which calls for the execution of the directive in the presence of two witnesses, verification by a judicial magistrate, approval from two medical boards, and a jurisdictional collector. The fundamental goal of passive euthanasia is to terminate the suffering of the person in question, therefore this delay is a significant obstacle. On the other hand, if the process is made too liberal and simple, it is always open to serious abuse.

The Supreme Court established standards for passive euthanasia in the case of Aruna Shanbaug. These regulations allowed for the removal of a person’s life support system, which might ultimately result in death. Passive euthanasia is now legal in India under certain circumstances that will be ruled by the High Court. Later in 2018, the Supreme Court issued a new ruling in the case of Common Cause v. Union of India¹, reinstating the right to a dignified death, legalizing passive euthanasia, and granting permission to remove life support from patients who are terminally ill and in a life-long coma. The Court also introduced the idea of “living wills” along with this. In these cases, the directions to be followed are-

1. A Passive Euthanasia application must be pending with the relevant High Court. In any case, two appointed authorities must make up the Bench that the Chief Justice of the High Court appoints, and they will decide whether or not to approve the grant.
2. The Bank must first consider the opinions of a three-person medical committee that it will select before making a decision. One of the three professionals should be an expert in the nerve system, while the other two should be specialists and therapists.
3. When a person goes missing, the High Court Bench will notify the State and those closest to the missing individual, such as guardians, companions, siblings, and sisters.
4. When it becomes available, the Court must send them a copy of the expert council report.
5. After hearing from each gathering, the High Court’s seat must announce its decision.
6. The Supreme Court must make a decision immediately. The court expressed its extreme gratitude to the KEM staff for their dedication over an extended period of time.

This case clarified the euthanasia-related concerns and established criteria for widespread euthanasia. In addition, the court recommended that Section 309 of the Indian Penal Code be repealed. The subject of passive euthanasia, which was previously hardly ever considered, started with this case. It significantly broadens the scope of Article 21 of our Constitution and explains the stance on the right to a dignified death. In the Indian context, this decision is hailed as progressive.

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REFERENCES

1. WP © 215/2005

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

CITATION

1992 AIR 1858, 1992 SCR (3) 658

APPELLANT

Miss Mohini Jain     

RESPONDENT

State Of Karnataka And Ors.

BENCH

Kuldip Singh (J)

DECIDED ON

30 July, 1992

ACTS/SECTIONS

Constitution of India, 1950-Articles 41, 45-Right to Education, Karnataka Educational  Institutions  (Prohibition of Capitation Fee) Act, 1984 ( Section 3)

BRIEF FACTS

Mohini Jain was a young lady initially from Meerut, Uttar Pradesh, and needed to seek after MBBS from a confidential school in Karnataka named Sri Sriddharatha Medical College, Agalokote, Tumkur. As per the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, it was laid out by the state government that Private Medical Colleges will charge just ₹2000 per annum from understudies conceded on Government seats, ₹25,000 from understudies from the territory of Karnataka and ₹60,000 from understudies of the other states in India. Aside from this, no expense ought to be requested from the understudy. This step was taken to guarantee that the Private Medical Colleges don’t charge cash from understudies in return for affirmation.

The administration of the school illuminated her that she would need to present an amount of ₹60,000 for each year however her dad passed on to the specialists that ₹60,000 is an enormous measure of cash and he was unable to manage the cost of that. On this premise, she was denied confirmation in the school. Miss Jain later affirmed that separated from the ₹60,000 the school likewise requested ₹4,50,000 as a capitation charge however this was denied by the school.

The Respondents guaranteed that she was approached to pay a measure of Rs. 60,000, and thusly, the Management got a call from the Petitioner’s dad who pronounced that he didn’t possess the ability to pay the extreme sum.

The Petitioner guaranteed that she was approached to pay an extra amount of around four and a half lakhs as capitation expense, which was denied by the Respondents energetically. Ms. Jain recorded a request under Article 32 of the Indian Constitution testing the notice of the Karnataka Legislature that considers requesting such excessive sums from understudies for the sake of educational cost.

The appeal guaranteed that the warning was violative of Articles 12, 14, 21, and 41 of the Indian Constitution as it conspicuously denied the Right to training to Indian residents on an erratic premise. The expense charged could without much of a stretch be recognized as a capitation charge. It was, in this manner, violative of Section 3 of the Act and against the excellencies of Right to Equality and Right to Education.

ISSUES BEFORE THE COURT

• Whether the Right to Education is ensured to the residents of India in consonance with Fundamental Rights, and whether charging a capitation expense infracts something similar?
• Whether the charging of capitation expense is violative of the fairness statement cherished in Article 14?
• Whether the criticized warning allowed the charging of a capitation expense dishonestly?
• Whether the notice is violative of the arrangements of the Act restricting the charging of such expenses?

ARGUMENTS ADVANCED

The Petitioner battled that the burden of such colossal charges for training by the confidential school is against the different articles under the Indian Constitution.

For this situation, the Respondent battled at first that the rules which have been continued in the confidential school with respect to the capitation expenses are not chargeable from those understudies who were equipped for the Government situates yet just from those understudies who were from various classes. They additionally contended that as they were following such grouping of seats in the school under merit list or under nonmeritorious list, which suggests that Government seats for up-and-comers who were under merit rundown and other people who were not. Accordingly, the administration leading group of the school has the option to charge expenses from the individuals who didn’t go under the legitimacy list.

One more contention by the Respondent was that as they were a confidential clinical school and there was no monetary guide which was given from the public authority Karnataka or the focal government furthermore basically these confidential clinical universities used to cause 5 Lakh Rupees as use for MBBS course. Ultimately, they additionally battled that the confidential clinical universities have consistently observed the Guideline of regulation and submitted to every one of the regulations for the smooth working of the organization and were legitimate in charging the capitation expenses.

HELD

After hearing the contentions from both the gatherings the Apex Court held that however the Right to Education isn’t explicitly referenced as a Fundamental Right; Articles 38, 39(a), (f), 41, and 45 of the Indian Constitution, it is clarified that the of the constitution makes it required for the State to instruct its residents. Article 21 of the constitution peruses “No individual will be denied of his life or individual freedom besides as indicated by the technique laid out by regulation”. Under Article 21 of the constitution and a singular’s poise can’t be guaranteed except if he has a Privilege of Education and taught himself. Further, the Court thought about the Universal Declaration of Human Rights, by the United Nations and a few cases that held that the Right to Life envelops more than “life and appendage” including necessities of life, sustenance, haven, and education.

Charging immense expenses limits admittance to instruction to the lower layers of society and makes it accessible just to the more extravagant segment of individuals. Poor meriting up-and-comers can not get confirmation because of the failure to pay the endorsed charges and as a result, in instructive establishments, a resident’s “All in all correct to Education” gets denied. Further, permitting the charging of an exceptionally high capitation expense disregards Article 14 of the Constitution of India the Court noted. The main strategy for admission to clinical universities ought to be founded on merit alone. The court likewise said that the judgment cannot is applied reflectively and cases past this cant receive the reward of the judgment.

CONCLUSION

The Hon’ble Court displayed its choice of standards of social government assistance and value. 10 years and a half before ‘Right to Education’ was officially presented in the Constitution. The judgment is moderate and somewhat radical. The Court was constant in its understanding of what summed as a capitation expense and its relevance — or deficiency in that department. Its exhaustive assessment of Fundamental Rights interlinked with the Right to training was exemplary. The Court underscored the Right to rise to the opportunity being similarly essentially as vital as the Right to uniformity itself. An extreme assertion in the recently changed Indian setting, the idea that the Right to training moved from the Right to life honored the philosophies of the days of yore. The Court put import on merit as opposed to monetary capital, a demonstration that should have been visible as an obstruction against privatizing instruction.

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

About the Firm

Based in the capital of India, RTA Law Chambers is a well-established law firm which provides legal services in Litigation, Advisory, Consultation, Arbitration, Agreement Drafting and retainer services. Having legal practice spanning across all courts in Delhi – NCR, They have been handling cases with a result-oriented approach, both professionally and ethically and further providing legal consultancy and advisory services. The firm is well equipped in dealing with clients through the expertise, intellect, experience and knowledge of the management.

The firm was set up with the mindset to serve the clients with better focus, to provide better legal advice which is viable for the clients along with proper legal representation.

Internship Description

RTA Law Chambers is looking to hire interns:

• Eligibility: (4th & 5th-year law students)
• Duration: One month (August 2022). 

How to Apply?

Interested applicants may send their updated CVs to advrtalchambers@gmail.com.

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About the Firm

AAA Legal is a law firm with an illustrative legacy of 14 years of practice and advisory. Areas of practice include Arbitration, Banking laws, Competition laws, Data protection, Employment and labour, Intellectual property including Innovation & Technology, Real estate, Customs laws and investigations, White-Collar Crime & Criminal laws Sectors: Automotive, Data Privacy advisory, E-commerce, Renewable Energy, Entertainment and Media, Infrastructure & Construction, Real Estate, Telecom & Technology.

Internship Description

• Mode: Virtual/Online
• Duration: 1 month (August)
• Eligibility: Law students

How to Apply?

Interested candidates can email their CV to litigation@aaalegal.pro (The subject of the email should read ‘Virtual/Online internship for August 2022’).

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About the Firm

AP & Partners was founded with a simple and compelling vision: A team of highly experienced lawyers focused on the most significant opportunities and challenges facing their clients. They are chosen by clients because of their experience, depth of knowledge and ability to manage difficult situations. They aim to deliver exceptional value to their clients by providing clear and actionable advice. They are defined by their approach.

AP & Partners like to work on matters that require the personal attention of their partners. To that end, their associates-to-partner ratio is low. Every mandate that they accept involves at least two of their partners so that their clients benefit from debate and discussion within the team. Their associates have significant past work experience. As to costs, they are innovative with their billing arrangements and look to create value for clients. Their lock-step compensation system allows their lawyers to focus on providing their clients with the best possible service and advice, without regard to extrinsic factors. Their distinctive structure allows them to draw on the strengths of the entire firm for any given matter and offer a wider perspective than that afforded by the specialized practices that make up a typical large law firm. Their lawyers are passionate about the work they do and are highly driven.

Job Description

AP & Partners is looking for lawyers with 3-5 years of post-qualification experience for their corporate and M&A practice.

As a corporate lawyer with the firm, you will act on a wide range of transactions including inbound and outbound M&A transactions. The work profile would also include advising tech businesses and their promoters on fundraising and exit transactions, and regulatory advisory. This is a great opportunity for enthusiastic, ambitious and hardworking lawyers who are ready to take their careers to the next level.

Ideal candidates will have:

• a law degree from a leading Indian law school. An LLM from an international law school would be a plus;
• 3-5 years of post-qualification experience;
• experience in handling small/mid-size transactions and due diligence with limited supervision; and
• prior work experience with the corporate practice of a leading firm.

How to Apply?

Eligible candidates can send their resumes to careers@appartners.in.

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About the Firm

Mind Legal, a full-service law firm is a perfect amalgamation of years of practical experience and deep-rooted theoretical and conceptual understanding. Based out of Delhi, the Firm has been founded by a group of highly trained, disciplined and enthusiastic young visionaries who combine their immense enthusiasm and global exposure to deliver expedient solutions to every single client. With invaluable insights into a very broad spectrum of industries, the firm is driven by the single-minded proposition of providing quality legal services and solutions to clients seeking legal assistance in areas like general corporate, project finance, mergers and acquisitions, joint ventures, taxations, banking, technology law, litigation and dispute resolution, regulatory and policy framework.

The Firm’s unwavering professionalism partnered with the ability to adapt and adopt is what allows it to consistently deliver excellence without failing. Having handled diverse litigations successfully in various courts, tribunals and forums, Mind Legal has in a short span of time become synonymous with trust and has established itself as a firm that delivers legally enforceable and commercially viable solutions.

About the Internship

1. Mode: Offline/in-office
2. Students who are in their 3rd, 4th and 5th year (5-year course), 2nd and 3rd year (3-year course) are eligible to apply.
3. Well-versed with civil law, criminal law, corporate law and other Indian laws.
4. Fluent in English and good research skills. 
5. Students based in Delhi-NCR will be given preference.

How to Apply?

Interested candidates may send their updated CVs to: info@mindlegal.in and shreya@mindlegal.in.

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CITATIONS

1990 AIR 1412

BENCH

Justice S.R. Pandian; Justice K. Jayachandra Reddy 

FACTS

Due to poverty and unemployment, many children are forced to work in manual labor or as maids but, those who get into the hands of people like pimps and brothel keepers are deceived by them, and eventually pushed into ‘Flesh trade’. The trauma they suffered after living in claustrophobic rooms for countless days makes them fearful of the outside world and they may suffer psychological problems for an infinite duration of time. Some of them may be unwilling to live a life of respect and dignity after suffering so much in their life and may surrender to the end of life. The petition was filed by a vigilant citizen Vishal Jeet, he requested the Hon’ble Supreme Court to give direction for inquiry of those police officials in whose jurisdiction the practice of forced prostitution, devdasi system, and jogin traditions were used widely and for rehabilitation of those who become victims of such system.

ISSUE

Whether Supreme Court can issue guidelines or not?

LAWS

Indian Constitution– Article 23: Provides that exploitation against human beings in the form of begar, forced labor, and trafficking of human beings must be prohibited and anyone who contravenes this law is punishable with the due procedure of law.

Article 32: It gives a citizen of India, Right to Approach the Supreme Court in case of violation of any right mentioned in Part 3 of the Indian Constitution. Supreme Court has the power to issue writs whichever is suitable for enforcement of violated Fundamental rights.

Article 35: Any offenses committed against any individual under Part 3 of the Indian Constitution must be punishable with the suitable legislation enacted by Parliament.    

Article 39 Clause (e): It directs that it’s a duty of the state to protect men and women are treated well and children must not be pushed to work in factories or any working companies due to their economic conditions.

Article 39 Clause (f): States must ensure that all children are treated with dignity and healthy manner and must not be exploited. 

Immoral Traffic (Prevention) Act, 1956– This act was made with the objective of punishing those who are involved in trading human beings as products for the purpose of sexual exploitation.

Indian Penal Code, 1860– Section 366A: Anyone who by whatever means forces or deceives a minor girl to do anything where she will be forced to be in illicit with another person shall be punishable with fine and 10 years imprisonment.   

Section 366B: Any person who is importing a girl under the age of 21 years from any country that is not India knowing that she would be forced to have illicit intercourse with another person shall be punishable with imprisonment of 10 years with a fine.    

Section 372: Any person who sells or buys a girl under the age of 18 years for the purpose of prostitution or is forced to have illicit intercourse with another person would be punished with imprisonment up to 10 years and liable to pay a fine. 

Section 373: Anyone who buys or has possession of a minor where she would be forced to have illicit intercourse with another person shall be punished with a fine and imprisonment up to 10 years.

Juvenile Justice Act, 1986–  Section 13: Empowers a police officer or any other official appointed by the state government to look after any neglected juvenile and bring them within the umbrella framework of this act.

Section 15: The Board can hold an inquiry under this act and can pass order which it may deem fit in favor of Juvenile.

DECISION OF COURT

Supreme Court denied giving any directions in this regard on the opinion that this is a socio-economic problem, hence, the measures must be taken carefully giving more emphasis to the prevention of such incidents and not the aftermath of such events. To obtain better results government must keep the laws in check. Supreme Court was of the opinion that issuing direction to the Central Bureau of Investigation to enquire throughout India about the social evils that girl children may face is not possible. The Supreme Court after hearing contentions of both the parties stated that both the Central and State government should organize a committee that would give advice to the government on the need for schemes for care, protection, and rehabilitation of victims of ‘Flesh Trade’. To suggest government laws that needed amendments and programs to create awareness among people who possibly may become victims of trafficking. Supreme Court also directed the government both at the state and central levels to ensure that Devdasi System and Jogin traditions come to an end. Governments must ensure the successful implementation of schemes made for the victims.  

This case analysis is written by Simran Gulia, presently pursuing BA LLB from Maharaja Agrasen Institute of Management Studies.

INTRODUCTION

The explicitness of doctrinal assumptions about differences at the turn of the century fairly clearly defined the early feminist project in law. Women were regarded as being appropriately excluded from the practice of law and other positions of public power due to their perceived biological or “natural” characteristics. They were confined to “private” or familial circles. The foundation of feminist legal theory also referred to as feminist jurisprudence, is the idea that the legal system has played a significant role in the historical subordination of women. Feminist legal theory has two goals in mind. First, feminist jurisprudence aims to illuminate how the legal system contributed to women’s historical subordination. Second, feminist legal theory is devoted to reworking the law and its treatment of gender in order to improve the status of women.

FEMINIST JURISPRUDENCE

A legal philosophy known as feminist jurisprudence is based on the political, economic, and social equality of the sexes. Feminist jurisprudence as a branch of legal scholarship first emerged in the 1960s. It has an impact on numerous discussions of gender-based discrimination, workplace inequality, and sexual and domestic violence. Feminists have uncovered the implications of seemingly neutral laws and practices using a variety of strategies. Feminist jurisprudence’s analysis and wisdom have been applied to laws pertaining to sexual harassment, rape, domestic violence, divorce, and reproductive rights. Rather than suggesting that women should be exempted from these laws and practices, or suggesting that the law itself should be changed to provide additional protections for women, many feminist thinkers point out how the sex-neutral language of the law belies gender-based disadvantages and discrimination, and that women, therefore, need to be provided with specific accommodations in the law so that they can level the playing field.

This type of legal feminism, which predominated until recently, focused primarily on equality. It presupposed that there were no legally significant differences between men and women, an emphasis that was determined by the numerous ways that the law historically both approved of and made it easier for women to be excluded from the public (and thus, overtly powerful) spheres of society. This exclusion was justified on the basis of difference, which was based on the idea that women’s particular biological role in reproduction required protection from the rigors of public life. Therefore, when significant numbers of women started to enter public institutions like the legal system, they sought to overthrow the ideology that had excluded them. Assimilation became the target, and equality became the established norm. The feminist project in law should adapt to this evolution because our perspectives on differences and the value we place on them have changed over time.

When such voices are heard, things like the current generation of diverse feminist legal theories can result. Feminist theorists present a variety of change-related strategies. Feminist-styled legal proposals aim to use the law to enhance the position of women. These proposals range from continued adherence to the equality model to concepts of accommodation and acceptance of “special” needs. Concepts of difference have been successfully introduced and broadly embraced by the larger legal community in some particular areas, such as the emergence of “battered woman’s syndrome.” However, in most areas of legal regulation, concepts that do not take into account or take into account differences are not easily overturned, and it is assumed that the law is appropriately gender-neutral, at least in theory.

RELATION WITH LAW

“Law” and “feminism” are two concepts that sound a lot alike to us. They both play important roles in our lives. The fact that they are connected is the most crucial fact, though. Both endeavor to guarantee gender equality in all spheres of life—social, political, and economic. Let’s first clarify what they mean in reality. The concept of “feminism” can be defined as the freedom to choose one’s identity without hindrance

Now, if we define “law” simply, we can say that it is a set of guidelines for behavior that are established by a supreme authority and have legal force. The main goals of the law are to uphold law and order, settle disputes, and defend individual rights and liberties. It might surprise you to learn that the word “law” comes from the Latin word “jurisprudential,” which means “knowledge of the law” or “skill in law.” The theoretical study of law is known as jurisprudence. Before the advent of law, people used to work or judge with a sense of moral principles and ethics, which is also a source of law. The common ground of law, in the words of great Juris, is the Salmond Philosophical Legal Theory. Even if you don’t know what jurisprudence means, the meaning of this word should be clear after reading the first three sentences of the text.

There has been a shift away from equality as one of the guiding principles of legal thought for many American feminist legal scholars. The dominant abstract principles that have supported business as usual at most levels of society are questioned by feminist theory in law, which also questions the status quo and the legal system’s alleged neutrality. But despite the fact that feminists agree on this fundamental first step, differences start to appear. While some scholars see positive changes resulting from a deeper analysis of women’s perspectives and experiences in the law, others maintain that things are not getting better for most women and things are not getting better for most women, despite claims to the contrary.

There is an unspoken trend in contemporary critical thought toward an overreliance on the speaker’s unique personality traits to validate discourse. This emphasis falsely promotes the notion that individuals are the agents of social action and change and conceals the numerous ways in which oppression occurs and is supported within the prevailing structures and ideologies of our society. It works by putting some discourse beyond criticism; discourse is regarded as authentic not because of the rhetoric’s nature but rather because of the personality of the speaker. For example, if we say that a woman’s speech is valid in feminist terms because she is a poor person, lesbian, or has disabilities, then discourse about issues relating to women and poverty, homosexuality, and disability is beyond criticism because the speaker cannot be faulted for being bourgeois, heterosexist, or nondisabled.

According to Section 14 of the Indian Constitution, equality is a concept that feminism and jurisprudence (the source of law) have collaborated on. There are many theories in the law, “feminist jurisprudence” being one of them. A legal philosophy based on the political and social equality of the sexes is known as feminist jurisprudence. It is predicated on the idea that the fundamental cause of women’s historical subordination has been the law. There are two components to feminist legal theory.

LEGAL THEORY OF FEMINISM

There are two components to feminist legal theory. First, feminist jurisprudence aims to clarify how the law contributed to women’s inferior status. Second, feminist legal theory aims to improve the status of women by reformulating the law’s treatment of gender. The fight against traditional law, which is largely patriarchal, is the focus of feminist jurisprudence. Focusing on the types of institutions and laws required to address the imbalance against women in society, it challenges the current legal status. Inequality in the workplace, gender-based discrimination, and sexual and domestic violence are all hot topics in feminist law.

Feminists have discovered gendered elements and implications of seemingly unrelated laws and practices using a variety of methods. Laws pertaining to sexual harassment, rape, domestic violence, divorce, and reproductive rights have all benefited from analysis and insight provided by feminist jurisprudence. Many feminists believed that history was written from a male perspective and did not reflect on the role that women played in shaping society and making history. Although feminist legal theory and feminist jurisprudence share a commitment to gender equality, they differ from one another.

FEMINISM IN INDIA

Feminism in India was actually started by men, in contrast to the western world. The first step towards feminism was the abolishment of sati by Raja Ram Mohan Roy and William Bentick, as well as widow remarriage by Ishwar Chandra Vidyasagar. Even though our constitution explicitly referred to equality, feminism changed as a result of rising “personal rights” and increased globalization. Leaders like Sarojini Naidu, Begum Rokeya, Captain Lakshmi Sahgal, Kittur Chennamma, Manikarnika, Kamini Roy, and Indira Priyadarshini Gandhi played a significant part in the rise of feminism in the Indian National Freedom Movement.

The theory of Austin, Hart, and Kelsen was criticized by many feminist authors. Authors like Carole Pateman, Catherine MacKinnon, Carol Gilligan, and Margot Stubbs questioned Austin, Hart, and Kelsen’s theories. The feminist movement or feminism has made issues like child marriage, failing to educate girls, and unequal pay for equal work and positions necessary.

The constitution has always been committed to protecting women, but the problem is that this is not always how it is actually applied. The scope is expanding with time, and the offences are being brought to light with greater sincerity. Only in this instance was rape properly interpreted and classified as one of the most heinous crimes. According to Justice Madan B Lokur, who made this statement in the ruling, rape is one of the most heinous crimes committed against a woman. It denigrates women. It injures a woman’s dignity and degrades her honor. Her personality is dwarfed, and she has less self-assurance as a result. It infringes on her right to life, as stated in Article 21 of the Indian Constitution. This ruling, which overturns the patriarchal laws that were once prevalent in our nation, was based strongly on the principles of equality and justice for women.

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

CASE NUMBER

1708  of 2015

CITATION

(2015), 834 SC

APPELLANT

RAJIV SINGH

RESPONDENT

STATE OF BIHAR

BENCH

V. Gopala Gowda, Amitava Roy

DECIDED ON

December 16, 2015

ACTS / SECTIONS

Sections 304B, 201, 498A of the Indian Penal Code , Section 365, Sections 3 and 4 of the Dowry Prohibition Act, 1961, Section 323 Cr.P.C, Section 313, Section 293 Cr.P.C.

BRIEF FACTS

An affectionate vacation excursion of a recently marry youthful couple met with a sad end, with the puzzling vanishing of the spouse from the organization of her significant other, on the train where they were going coming back home. The litigant, the spouse, in the orderly realities and conditions, stands charged and sentenced under Sections 304B, 201, 498A of the Indian Penal Code, what’s more, has been condemned to go through thorough detainment for shifting terms for the offenses in question. The High Court of judicature at Patna, having avowed the conviction and sentence recorded by the learned preliminary court, the litigant looks for a change in the moment procedures, challenge being laid to the judgment and request dated 16.05.2014 delivered in Criminal Appeal (SJ) No. 1169 of 2011.

A short introduction to the horrendous episode is imperative. Rani Archana Sinha got hitched on 29.04.2007 with the appealing party as indicated by Hindu rituals and had properly joined the marital home. Archana was a rehearsing advocate and had shown up in a cutthroat assessment in which, according to the outcomes proclaimed on 10.08.2007, she was not chosen. The couple arranged their special night outing to Darjeeling and continued thereto, by Capital Express on a similar date. They landed at New Jalpaiguri Station, and in the wake of visiting the spots of their advantage, as planned, they on 14.08.2007 boarded a similar help for the return venture at 1500 hrs. As the realities have unfurled from the First Information Report stopped by the appealing party with the Mokamah G.R.P.S. on 15.08.2007, the couple ate at Katihar Junction at 2000 hrs whereafter they turned in their particular billets No. 33 (appealing party) and negative. 35 (Archana) in mentor S 1 of sleeper class roughly at 2100 hrs.

According to the adaptation of the appealing party, he awakened at 0510 hrs on 15.08.2007 at Bakhtiarpur Station, to observe that his better half was absent from her introduction to the world whereafter, he began looking for her on the running train. As per him, when the train arrived at Patna Junction, he searched for her on different trains likewise thereat. His supplication is that on being enquired, the travelers in his mentor avowed that the woman was accessible in the train up to 0400-0430 hours. The litigant’s statement arranged subsequently, he revealed the matter first with the GRP, Patna, and at last stopped the First Information Report with Mokamah G.R.P.S.

ISSUES BEFORE THE COURT

• Whether Archana had vanished of consumption or real wounds or whether her passing had happened in any case than in typical conditions? Assuming such passing is demonstrated, whether it very well may be incidental and neither self-destructive nor desperate?
• Whether soon before her passing, she had been exposed to brutality and provocation by the litigant and any of his family members for or regarding interest for settlement?

HELD

In the current realities of the current case, the assumption engrafted under Sections 304B IPC and 113B of the Indian Evidence Act isn’t accessible to the arraignment as the fundamental central realities to set off such assumption have stayed unproved. The indictment has neglected to lay out for certain the demise of Archana. To repeat, the proof all in all bearing on endowment interest and provocation or abuse in association therewith is likewise not persuading.

On a combined examination of the proof on record, we are consequently compelled to hold that in current realities and conditions of the case, the indictment has neglected to demonstrate the charge under Sections 304B/498A/201 IPC against the litigant. The courts underneath, in our gauge, have neglected to look at and assess the proof on record in the right point of view both genuine and legitimate, and consequently have horribly failed in returning a finding of responsibility against him on the above charges.

It is very much dug on a basic level of a criminal statute that a charge can be supposed to be demonstrated just when there is sure and express proof to warrant lawful conviction and that no individual can be held liable on unadulterated moral conviction. Howsoever grave the supposed offense might be, generally blending the inner voice of any court, doubt alone can’t replace legitimate evidence. The deeply grounded cannon of law enforcement is “fouler the wrongdoing higher the evidence”. In undeniable terms, it is the command of regulation that the indictment prevails in a criminal preliminary and needs to demonstrate the charge(s) without question.

Doubt, despite how grave it very well might be, can’t replace evidence, and there is an enormous contrast between something that “maybe” demonstrated and “will be proved”. In a criminal preliminary, doubt regardless of areas of strength how should not be allowed to happen during verification. This is for the explanation that the psychological distance between “maybe” and “must be” is very enormous and separates ambiguous guesses from sure ends. In a lawbreaker case, the court has an obligation to guarantee that simple guesses or doubts don’t replace legitimate confirmation. The huge distance between “maybe” valid and “must be” valid, should be covered via clear, fitting, and irreproachable proof created by the indictment, before a blamed is censured as a convict, and the fundamental and brilliant rule should be applied.

In supplementation, it was held in confirmation of the view taken in Kali Ram versus Province of H.P. (1973) 2 SCC 808 that assuming two perspectives are conceivable on the proof cited for the situation, one highlighting the responsibility of the denounced and the other to his blamelessness, the view which is positive for the charged ought to be taken on.

This Court, among others, in Amitbhai Anilchandra Shah versus Focal Bureau of Investigation and another (2013) 6 SCC 348, while underlining the vitality of a fair, top to bottom examination had seen that researching officials are the head bosses in the law enforcement framework and dependable examination is the main step towards confirming total equity to the survivors of the case. It was decided that regulating law enforcement is a two-end process, where watching the guaranteed freedoms of the denounced under the Constitution is pretty much as basic as guaranteeing equity to the person in question.

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