Tag: legal research

Introduction

The protection of the environment is immensely vital for the survival of mankind. It helps maintain the ecological balance and preservation of the environment. Two terms are often used synonymously, i.e. environment and ecology. Ernest Haeckel, who is known as the father of Ecology, has defined ecology pollutants as a reciprocal relationship between organisms and their surroundings. The term ‘eco-system’ is derived from the word ecology and it implies, “an organic community of plants and animals viewed within the physical environment or habitat.” According to Justice P. N. Bhagwati, the former Chief Justice of India, the term ‘Environment’ refers to “all the conditions within and around an organism, which affect its behaviour, growth and development, or life processes, directly or indirectly.”

What is an environmental crime?

An environmental crime is any illegal activity that breaches national and international environmental law. The unlawful exploitation of the planet’s natural resources is a threat to the survival of all organisms on Earth. India has a very rich animal and plant heritage. There are 13,000 species of flowering plants, 65,000 species of fauna, more than 2000 varieties of fishes, 200 species of birds and 340 kinds of mammals.

Environmental Crime is also known as Green Crime or Green Collar Crime. It is a life and death issue all over the world. The crimes against the environment are connected with the unlawful exploitation of wild fauna and flora, pollution, waste disposal and its trade.

What is environmental pollution?

The term “pollution” is derived from the word “pollute” which means to make unclear or dirty. The release of substances and energy as waste products of human activities results in changes usually harmful to the environment is called pollution. According to Section 2(c) Of the Environment Protection Act, 1986, when Pollutants substances which mark their presence in the natural environment may be present in solid, liquid or gaseous form, defined as environmental pollution.

Environmental Pollution And Crime

Natural pollution is caused due to natural forces such as tsunamis, soil erosion, fire causing forest destruction, cyclone, acid rain, global warming, greenhouse emissions etc. Air Pollution, Water Pollution, land Pollution, noise Pollution, and radioactive pollution are also called aerial pollution, food pollution, thermal power plant pollution, sea pollution and
pollution caused by solid wastes, and acid rain pollutants are kinds of artificial pollution caused by human activities and this pollution is an example of environmental crime. Wildlife crime, illegal mining, dumping into oceans and other water bodies, illegal fishing, illegal logging, groundwater contamination, burning garbage, improperly handling
pesticides and chemicals, and oil spills are the most common environmental crimes. In the current world context Environmental crime is one of the paramount concerns of India as well as all over the world.

• Wildlife Crime: The term wildlife not only includes terrestrial and aquatic animals living in the forest but it includes all the living organisms and microorganisms living in their natural habitat. Illegal hunting and killing of animals are called poaching. Laos, Thailand and Myanmar, are the golden triangle of wildlife evil action and also a hub for illicit wildlife business. China is the largest importer of illegal animal products. Animals are captured alive and traded into zoos. Uganda is the home to hunting majestic elephants. Zimbabwe, Uganda and Kenya are the biggest countries in the world having poaching problems. Pangolin is the most hunted mammal in India and the world’s most trafficked mammal. Illegal trade of Indian star tortoise, rhino horns, tiger and leopard skins, and tusks of elephants.

•Dumping into water bodies: Water pollution has many reasons which include the discharge of industrial effluents and drainage of sewage. In India, rivers like Ganga, Gomti, Yamuna and Kaveri have become polluted and unfit for drinking purposes. The practise of dumping dead bodies in rivers is one of them in India. Hundreds of corpses have been found floating in the river or buried in the sand of river banks. Villagers in India are usually dependent on the river for drinking, irrigation and giving water to their animals which has become a slow torturous process. Wastes from shipping fuel and oil, off-shore drilling rigs, toxic substances like cyanide, acetylene, acids and alkali present in industrial liquid effluents, and inorganic substances like chloride and nitrogen, and dyes which are harmful to make the water unsafe and harmful for human health. Atomic reactors contain different kinds of radioactive substances which are very harmful to organisms.

•Illegal Logging: Forests are the lungs of the environment and help the process of transpiration and condensation. Trees help to purify the air by releasing oxygen through the process of photosynthesis. Forests provide wood, timber, fuel, medical herbs etc which have a great trade value for industries. The uncontrolled logging to get wood for furniture or other good, and the trade of timber and ivory for financial gain is the most serious cause of environmental crime. There are several movements to protect forests. Chipko Andolan and APPIKO Andolan are the famous ones. Chipko Andolan was launched by Shri Sunder Lal Bahuguna, a noted environmentalist in the early 1970s in protest against the indiscriminate cutting of trees and deforestation.

Protection of Environment – Legal Framework

The former Prime Minister of India Late Smt. Indira Gandhi, the credit goes to her who spread awareness about the preservation and conservation of the environment. She was inspired by the Stockholm Conference (1972) on Environment in which she had represented India. The two new constitutional provisions were inserted in the Constitution of India by the 42nd Amendment Act 1976. Article 48-A imposes a constitutional obligation on the State and the Courts to protect and improve the environment and Article 51-A(g) imposes a duty upon the citizens to preserve the environment.
The major acts passed for the protection and control of environmental crime are as follows:

The Water Prevention and Control of Pollution Act, 1974, The Air Prevention and Control of Pollution Act 1981, The Forest Conservation Act 1980, The Environment Protection Act, 1986, The Wildlife Protection act 1972, The Biological Diversity Act 2002, Batteries and handling rules 2001, recycled plastics manufacture and uses rules 1999, municipal solid waste management and handling rules 2000.

Some other statutory laws also contain provisions relating to the prevention and control of the environment. They are:

1. The Indian Penal Code 1860 (chapter- XIV Nuisance, Sections 268 – 278 in Section 290) provides punishment.
2. The Code of Criminal Procedure, 1973 ( chapter X, Part B- sections 133 – 143 and part C -section 144).
3. Atomic Energy Act 1962
4. Insecticides Act 1968
5. Factories Act 1948
6. Ancient Monuments and Archaeological Sites and Remains Act,1958
7. Public Liability Insurance at 1991
8. The Prevention of Food Adulteration Act 1954.
9. Indian Easement Act 1882.

Landmark Judgements

•Narmada Bachao Andolan v. Union of India (2000) 10, SCC 664 (767)
The Supreme Court has declared the right to have access to drinking water as a part of the right to life and human rights as enshrined in Article 21 of the constitution of India.

•M.C. Mehta v. Union of India, (1988) 1 SCC 471

The River Ganga Pollution Case. To prevent the river Ganga from being polluted in Kanpur due to the industrial discharge of effluents and sludge into the river the Supreme Court issued directions to the Municipal Corporation labour. Increase and widening of sewers, construction of a sufficient number of public urinals, preventing throwing of dead bodies, installation of treatment plants in factories, prevention of waste accumulated at dairies and generating awareness about the importance of cleanliness and a pollution-free environment for public health.

• Indian Handicrafts Emporium v. Union of India AIR 2003 SC 3240.

The Supreme Court held that trading in ivory is totally banned under chapter V-A and any person who has obtained a certificate from the chief wildlife warden under section 49-C (3) may keep possession of such property but cannot display it on any commercial premises.

•Samir Mehta v. Union of India 2014 SCC OnLine NGT 927, 17-04-2014 – Marine pollution case due to the ship sinking.
National Green Tribunal held that ship sinking accident has led to marine pollution. Therefore, environmental compensation of Rs. 100 crores were imposed. It is one of the biggest compensation ever made by a private entity to the Government.

Conclusion

Industrial and technological development lead to environmental-related problems in developed countries whereas undeveloped countries have problems because of poverty and over-population. The balance between Environmental Protection and development activities could only be maintained by the principle of sustainable development. The objective of sustainable development seeks to maintain and protection of biodiversity and enhancement of the quality of life. Thus, Development and environment, both are interdependent and therefore, there cannot be development without the protection of the environment, nor can there be conservation of the environment without development. The Environment Minister, Prakash Jawdekar on 5th February 2015, inaugurated the sustainable development summit in Delhi. He said that India is carried out to improve the lives of future generations and urged all the nations to work together to save the earth from disastrous consequences. If we want to save the earth, then come forward and contribute to protecting the environment for ourselves and the upcoming generations also.

“Ecology and human consciousness cannot be separated. Only because human
beings have become insensitive, we have to talk today about saving the world…”

This article is written by Ashmita Dhumas who has completed her B.A.LL.B from Agra College and currently doing a
diploma in Corporate Law from Enhelion.

INTRODUCTION

Intellectual Property (IP) is a kind of invention by a living being in form of literature, artistic, designs, symbols, names, and images in trading.

Intellectual Property Rights (IPR) are granted to the owner of Intellectual Property. These rights protect the property’s misuse by someone other than the owner. Having intellectual property has become common in the modern world. Protection of Intellectual property enhances the publication and its distribution. It helps in boosting economic growth.

To distinguish IP from other forms of property is its intangibility. IP can be owned and owners have the right to protect the property. When you are given rights to protect the property you are also given duties to be fulfilled. As we all know there are various kinds of IP that leads to different kinds of rights and duties in society so that all IPs can exist together. Any IP once sold by its first owner to the other then the first owner’s claim to the property is completed. With new technologies around the world, the new items are making it up to the IP. Facilitating fair trading and competition in the market.

Bajaj Auto Ltd v TVS Motor Company Limited¹ this case has been pending before the court for 2 years leading to losses to parties due to which Supreme Court ordered that cases must be resolved within four months of filling any such related suit.

Yahoo Inc. v. Akash Arora² this case was about the IPR on the internet, in the instant, the domain name of the defendant’s website was identical to that of the plaintiff due to which people can easily get confused. The general public may believe that both the name must have some sort of connection. The court observing the importance of domain name ordered the defendant to stop the usage of an identical name as it is essential for the company’s advantage.

SUI GENERIS

The term ‘Sui Generiss’ is derived from Latin meaning its own kind and in layman’s terms unique. In legal it means a control-free legal classification. Provides a set of laws to protect Intellectual Property Rights, allowing the provider of the invention must be protected and compensated for the contribution made to society. It can also be a law that provides protection to copyright, patents, trademarks, geographical indications etc.

The policy laid down by the Indian government in 2016 aimed at making citizens aware of intellectual property. To promote modernization, acceleration of commercialization, expansion of institutions specialized in IP and development of human skills.

Intellectual property can be classified as—

COPYRIGHT:- The property in tangible form in terms of literature, artistic, poems, novels, songs, and computer codes. The copyright gives one authority over the work and the owner is capable of deriving economic benefits like commercializing the use of work and receiving respect for his/her work. Copyrights are based on the creativity and originality of work. In India, the copyright is governed under Copyright Act,1957.

PATENT:- It is an exclusive right that is granted to the owner of the invention. Invention means a new way of making use of something, the machine-made for some purpose. In India, the patent is governed under Indian Patent Act,1970 providing the owner of the patent to make use, sell, controlling the patented subject. It must be registered for getting the sanction of license. A patent can be given up by the owner of the patent by surrendering.

TRADE MARK:- It helps us in the differentiation of one product from other products that have the same class. It helps one product stands out from other products. Giving protection to any symbol, phrase, design, or icon helps in the recognition of the product. It is protected under the Trademark Act, 1999 objective of protecting trademarks from misuse of trademark, expanding the usage of trademarks and reputation of a firm’s trademarks.

GEOGRAPHICAL INDICATION:- Name and sign of product based on its geographical location. The indication leads to the defining quality and process for the manufacturing of the product. Geographical indications are governed under the Geographical Indication of Goods Act,1999  in India. It aims at providing protection to the protection considering the interest of the owner. The product that is based on geographical location may be a natural hood, agricultural good or ingredients used in a product taken from that geographical location.

INDUSTRIAL DESIGN:- It aims at protecting visual design created with dimensional or two-dimensional figures or shapes, coloured, lined, textured, and material used.

PLANT VARIETY:- There must be a diversity of plants distinct in nature, offering material used for selling, and providing material for imports and exports.

TRADE SECRETS

Trade Secret is a kind of intellectual property that includes the process of working, formulas to programs, the pattern of work or confidential information that is financially valuable, only a limited number of people are familiar and viable steps must be taken to keep the concerned information a secret. Some examples of trade secrets include Coca-Cola Drink, KFC, McDonald’s etc.

The law based on intellectual property rights forbids others to disclose a trade secret to anyone who is not part of a firm or project or not allowed to know. Trade secrets can be technical in nature including formulas, codes for programming, commercially including advertising, and processes of making.

ORIGIN

The year 1977 saw the rise of Trade Secret in India when the government orders Coke to surrender the formula for Coke due to which Coke pulled out of the Indian market and re-enter the Indian market when the central government changed. India was part of the General Agreement on Tariffs and Trade (GATT) in 1984 as the concept of intellectual property was based on immediate disclosure, publication, and registering the innovation whereas trade secrets are meant to be kept secrets as the term suggests, therefore, India refused to include trade secrets.

In 1991 the liberalisation policy was introduced aiming at private and foreign investment. India was part of the Uruguay Round that leads to the introduction of intellectual property rules into multilateral trade and the treaty was called as Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994. Consequently, India became a member of the World Trade Organization (WTO) in the year 1995. As per the agreement, it makes it an obligation towards members of the organisation to protect ‘Trade Secret’. Later, India enacted laws to comply with the terms of the agreement.

With the passage of time, the issue became important and the need for the new law was felt, therefore, the Indian government introduced the National Innovation Bill 2008 aimed at providing a boost to innovations done either privately or publically and codification of set of laws for maintaining trade secrets. Soon, the bill disappeared in thin air. India ignored the subject till 2016 when ministerial-level meetings were held between the U.S.A. and India leading to the mention of the term ‘Trade Secrets’ in the National Intellectual Property Policy.

PROTECTION

The one who owned trade secrets must be responsible for keeping them confidential by both technical and legal measures. The owner must know the importance of trade secrets, and access to such codes, formulas, and data must be protected by stronger security.

Trade Secrets became more prone to the risk of getting misappropriated when a former trustable employee leave and was suspected of using economically valuable information for its own benefit. For the protection of the trade secrets of a company, there must be stronger laws that include the agreement of secrecy and for breach of confidence etc.

The agreement of secrecy was not considered to hold back the practice of trade³. There is always an agreement of confidentiality between employer and employee⁴.

In the instant case of John Richard Brady v Chemical Process Equipment Pvt. Ltd.⁵ the usage of the same information that is provided by the plaintiff to the defendant under the clause of confidentiality was used for the defendant’s benefit hence the confidentiality clause was breached leads to the liability of the defendant.

When secrets are shared among competitors then the competition would be unfair hence, a company that is unable to meet the satisfaction of consumers leads to a lack of promotion of new innovations. Secrets can be kept for a longer time without a bar of certain years will be applicable immediately or at the stated time.

INTERNATIONAL TREATIES

Paris Convention on Protection of Industrial Property,1883: The first treaty in favour of Intellectual Property Rights having 30 articles revised in 1967 aiming at equal treatment to IP of other member nations same to that of its own citizens, the owner may seek protection from more than one country and all countries must have some common rules regarding IPR.

Berne Convention for Protection of Literary and Artistic Work,1886: The original should be given protection instantly from the time stated an equal treatment must be given to all such works. The protection must be given to work in other member countries as well.

Universal Copyright Convention,1952: The treaty aims at national equal treatment for all IP minimum safeguards.

World Intellectual Property Organization,1967: With the objective of providing people with state cooperation towards international applications for intellectual property, technical assistance for issuance of the certification of  IP.

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),1994 recognises the international intellectual property dispute resolution and protection mechanism.

WIPO Copyright Treaty,1996 promotes the protection of computer programs, and data stored.

CONCLUSION

Even after so many laws to protect Intellectual Property the owner still suffers the loss by bearing the high legal cost of certification and other losses. Laws are just imposed so one might know the consequence of their action but someone will follow the laws that aren’t necessary so the owners of intellectual property still face many problems. Sometimes, people may use your work as their own without your knowledge and consent, but by the time you cane to know the value of the product diminishes.

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CITATIONS

1 2009 (12) SC 103

2 1999 (19) PTC (Del)

3 1967 AIR 1098

4 130 (2006) PTC 609 Del

5 AIR 1987 Delhi 372

This article is written by Simran Gulia of Maharaja Agrasen Institute of Management Studies.                                                                           

INTRODUCTION

India is one of the largest populous countries in the whole world with a lot of diversity within the population. Being a democratic nation, the elections are the most important part of the system. It can be told that the elections lie within the heart of democracy. Only through the elections, do people participate in public affairs and express their will in the democracy. Only through the elections, it has been possible in India to change the power from one party to another in a peaceful manner. The authority of the government gets clothed with legitimacy. However, holding free and fair elections is a sine qua non in a democratic nation.

Even after 70 years of the attainment of independence, India still suffers from global issues like poverty, illiteracy and inequality, etc. In addition to these, the Indian population group themselves as per the caste, religion, region and also gender. It would be a stupendous task to conduct periodic elections by encouraging a large-scale population to participate.

Time and again, Indian have reposed faith in the elections as the most potent means of non-violent and peaceful protest against all acts of omissions and commissions of Government. It can be said that the imposition of the elections has been more successful than many other liberal democracies in the world.

However, several anomalies in the election system’s operation have become apparent. The necessity to address such troubling circumstances has sparked a discussion in the nation over election changes. The Election Commission, which is endowed with the real authority of supervision, direction, and control of elections in the nation under the Constitution, has from time to time made tangible proposals/suggestions based on objective issues experienced during election administration. Politicians have expressed their desire for change via the platforms of parties and Parliament, including the different committees established for that reason. Governments have also taken corrective action in response to suggestions from different bodies. The reform process, as well as the discourse around it, has been nearly continuous.”

Election Commission of India

The Part XV of the Indian Constitution mentions the Elections and specifies Article 324 regarding the Election Commission i.e., The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).^[i]

The Election Commission comes under the Ministry of Law and Justice. The commission consists of a Chief Election Commissioner and two election commissioners. Elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, State Legislative Councils, and the President and Vice President of the nation are conducted by this organization. The Election Commission is governed by Article 324 of the Constitution and the Representation of the People Act, which was adopted later. Under the Constitution, the commission has the authority to act appropriately when existing laws are inadequate to cope with a particular circumstance in the conducting of an election. The Election Commission, like the country’s higher courts, the Union Public Service Commission, and the Comptroller and Auditor General of India, is a constitutional entity that functions with both autonomy and independence. It is a constitutional body that exists indefinitely.

Challenges in Electoral Politics of India

Due to the obvious massive amount of money that must be spent and a large amount of muscle power necessary to win elections, the elections are not being held under ideal circumstances at the moment. The following are the key flaws with the Indian election system:

• Money Power:

Candidates in each seat must spend millions of rupees on campaigning, publicity, and other expenses. The majority of contenders spend significantly more than the permitted amount. The elections weren’t costly till 1952 when compared to the present days. Politicians used to think that it was unethical to work for a reward. But now the scenario has changed. In India, the implementation of planned and mixed economies with a high level of control, regulation, licenses, permits, and quotas gave significant chances for political corruption and resulted in an immoral relationship between electoral politics and the country’s corporate sector. Despite the liberalized economy caused to the country’s political system, this seems to be continuing today with much more devastating repercussions of an overflow of illicit money into the corridors of political parties. Elections in India are so far away from the average person that only individuals with a lot of money may run for office as a candidate since voting is no longer a reliable indicator of public opinion. It’s being purchased.

At present, candidates participating in MP elections spend Rs. 15 to 25 lakhs and candidates participating in the MLA elections is Rs. 5 to 10 lakhs. Any amount spent more than that is being considered corrupt practices as per the Supreme Court of India. It has elucidated as follows:

The object of the provision limiting the expenditure is twofold. In the first place, it should be open to any individual or any political party, howsoever small, to be able to contest an election on a footing of equality with any other individual or political party, howsoever rich and well-financed it may be, and no individual or political party should be able to secure an advantage over others by virtue of its superior financial strength.

In the case of L.R. Shivaramagowde v. P.M. Chandrasekhar^[ii] the supreme court stated, “If the account of election costs provided by the candidate is determined to be erroneous or misleading, the Commission has the authority to disqualify the candidate under Section 10A of the Representation of the People Act, 1951″.^[iii]

• Muscle Power:

Muscle strength is mostly responsible for violence, pre-election intimidation, post-election victimization, riggings, and booth capturing. These are common in many regions of India, and the sickness is progressively spreading throughout the nation. Criminals are able to win elections for their patrons by resorting to violence.

• Misuse of the Machinery of Government:

When a government is in power during an election, it is often noted that the official apparatus is used to help the electoral chances of its party’s candidates. Misuse of official machinery takes many forms, including the publication of ads at the expense of the government and the public exchequer publicizing their accomplishments, payments from ministerial discretionary funds, and the use of government cars for canvassing. The abuse of official machinery in this manner offers the governing party an unfair advantage during elections, resulting in the misuse of public monies to help candidates of a certain party advance.”

• Criminalisation of Politics:

Criminals join politics and guarantee that money and brute power win them elections, preventing the prosecution of their charges. Political parties are also content as long as they have candidates who can win elections. In exchange for cash, political parties cast criminals in elections and provide them with political patronage and security.

• Independent candidates that aren’t serious:

Serious candidates run non-serious candidates in elections to cut down on the number of votes that would otherwise go to competitor candidates.

• Casteism:

Certain caste groups have been known to offer considerable support to political parties. As a result, political parties make concessions to various caste groupings, while caste organizations strive to push parties to provide tickets for their members’ elections. Caste-based voting is common in the nation, and it is a significant blemish on democracy and equality. This causes schisms in the nation.

• Communalism:

The Indian political culture of pluralism, parliamentarians, secularism, and federalism is in danger of communal division. In the linked article, you may learn more about communalism.

• In politics, there is a lack of moral values:

In India, political corruption has turned politics into a business. People join politics in order to make money and maintain their wealth and influence. Few politicians join politics with the intention of improving the lives of their constituents. In India’s political arena, Gandhi’s virtues of service and sacrifice are absent.

Electoral Reforms in India

To overcome the challenges in the electoral system, electoral reforms are brought in by the suggestions of the Law Commission and National Election Watch. The following are a few reforms mentioned below:

The electoral reforms can be divided as follows:

Reforms made Pre-2000:

1. Reduction of voting age:

In the 61^st Amendment of the Constitution, the voting age has been decreased in India from 21 years to 18 years (Article 326).^[iv]

2. EVM introduction:

Electronic Voting Machines have been introduced in 1982. Its usage has been first present in Pakur village, Kerala. The amendments have been made to the Representation of People Act 1951 which has made provisions to the EVMs to Sections 61A.^[v] They were initially used in Madhya Pradesh elections in 1998, followed by assembly elections in Delhi and Rajasthan. Its arena was eventually dispersed around the country. EVMs are now at the forefront of elections, and they are unavoidable.

3. Disqualification on conviction for violating National Honours Act, 1971:

If convicted of breaking the National Honours Act of 1971^[vi], the individual would be barred from standing elections to Parliament and state legislatures for a period of six years.

4. Contesting from more than two constituencies is prohibited:

A candidate may only run in two constituencies at a time.

5. A contending candidate’s death:

The election had already been postponed due to the death of a contending candidate. No election will be annulled in the future due to the death of a contending candidate. If, on the other hand, the dead candidate was nominated by a recognized national or state party, the party concerned will be given the opportunity to nominate another candidate within seven days of the Election Commission issuing a notification to that effect to the party concerned.

6. The Arms Act of 1959^[vii] makes it illegal for anybody carrying a weapon to approach a voting place. Anyone detected in possession of weapons near the voting booth might face a penalty of up to two years in prison.

7. The employees of organisations get paid holiday during the poll days and it is punishable by a fine in case of violation.

8. Sale of Liquor:

A 48-hour ban on liquor will be imposed near the polling areas. No intoxicants will be allowed for sale till the conclusion of the poll.

9. Bye-elections’ time limit:

Bye-elections shall henceforth be conducted within six months after the occurrence of a vacancy in either House of Parliament or State Legislature. 

10. Election Commission Delegation:

For the duration of their employment, all workers involved in the preparation, revision, and correction of electoral rolls for elections will be regarded on deputation to the Election Commission and will be overseen by the Election Commission.

11. The Increase in proposers and security deposit:

The number of voters necessary to sign as proposers in nomination papers for elections to the Rajya Sabha and State Legislative Councils has been increased to 10% of the electors in the constituency or ten such electors, whichever is fewer, primarily to discourage frivolous candidates. To deter non-serious applicants, the security deposit has been increased.

12. The campaigning time has been shortened.

Post- 2000’s Electoral Reforms:

• Postal Ballot:

Service voters, special voters, spouses of service voters and special voters, voters under preventive detention, voters accountable for election duty, and Notified voters were among the six categories added to the postal ballot in 2013. The Electronically Transmitted Postal Ballot facility was provided to qualified foreign voters in 2020, in order to increase the number of voters, which had decreased during the year.

• Election spending cap:

Currently, there is no cap on how much a political party may spend on an election or a candidate. However, the Commission has set a spending limit for individual candidates. It costs between Rs. 50 and Rs. 70 lakhs to fight a Lok Sabha seat (depending on the state they are from), and between Rs. 20 and Rs. 28 lakhs to win an assembly election.

• Voter education:

 The government has made initiatives to improve voter education by designating January 25th as ‘National Voters Day.’

• Restriction of Exit Poles:

Exit polls were banned in 2010 when Section 126(A) of the Representation of Peoples Act, 1951 was introduced.^[viii]The Election Commission issued a declaration banning the broadcast of exit polls before the 2019 Lok Sabha elections. They said that exit polls may only be televised after the election’s final phase. This action was done to ensure that voters were not deceived.

• Every applicant is required to disclose their criminal history and assets. The candidates must reveal their criminal history thrice before an election, once in a national daily newspaper and again in two different regional language newspapers, and lying in the affidavit now carries a penalty of six months in jail, a fine, or both.

Conclusion

India’s Parliamentary system has been a successful standing example for emerging democracies. The elections are considered the heart of democracy. The people have vested their faith in the elections, as they get to choose their own representatives. However, there are many factors affecting the outcomes of the elections. There are many negative impacts on the voting population which decide upon whom they vote for, as aforementioned. Many reforms have been passed to make the electoral system a better version and to run in a free and fair manner. However, there are still a few flaws in our electoral system like candidates with criminal backgrounds being able to participate as representatives. There isn’t any provision that prevents them from participating in elections.

According to the Association of Democratic Reforms, “29% elected members of 17th Lok Sabha to have criminal cases of rape, murder, attempt to murder and crime against women. Since 2009, 109 per cent has increased in the number of MPs with serious criminal cases. In the 2014 Lok Sabha elections, 185 winners declared criminal cases against themselves. The political parties have become a shelter home for criminals. Now, criminal representatives of the legislative are involved in rule making process. This is a serious issue before electoral reforms. There is no legislative action to prevent criminal politicians from rule making process. Booth capturing, violence, pre-election intimidation, and victimisation are mainly the product of muscle power. However, the Apex Court has issued an order in 2003 that candidates must file an additional affidavit stating (i) information relating to all pending cases in which cognizance has been taken by a Court, (ii) assets and liabilities, and (iii) educational qualifications.”

There is an urgent need to make stricter laws like the Anti-defection law for preparing India to have free and fair elections and prohibit the candidates who perform malpractices to win the elections. The EVMs must also be taken care of, as there are many situations in which the machines have malfunctioned and benefitted the winning party.

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CITATIONS

[i] The Constitution of India 1950, art. 324.

[ii] L.R. Shivaramagowde v. P.M. Chandrasekhar, 1998 Supp (3) SCR 241.

[iii] The Representation of People Act 1951, s. 10 A.

[iv] The Constitution of India 1950, art. 326.

[v] The Representation of People Act 1951, s. 61 A.

[vi] National Honours Act 1971.

[vii] The Arms Act 1959.

[viii] The Representation of People Act 1951, s. 126 A.

This article is written by K. Mihira Chakravarthy of Damodaram Sanjivayya National Law University.

INTRODUCTION

The Latin proverb that suits the Juvenile Justice framework in India best is ‘Nothing Novi Spectrum’ which suggests that nothing is new on this planet. There is an assumption in the entire world since the old-time frame that Juveniles ought to be managed mercifully on the grounds that there exists a school of thought that says- young people, by and large, have a propensity to answer in a serious and delayed dissatisfaction which goes with forceful methodologies.

Over the most recent couple of years, it is likewise seen that the violations done by kids younger than 15-16 have expanded essentially. The overall propensity or the brain research behind the responsibility of the wrongdoing or the reasons for wrongdoing are early-valuable encounters, prevailing manliness, childhood, financial ruins, absence of training, and so on. It involves a disgrace that the kids younger than 6-10 these days are utilized as instruments for doing unlawful or criminal operations. Since a child’s mind is naive and manipulative in nature, they can be baited at a pitiful expense.

Before the Eighteenth Century, juvenile offenders were dealt with in a similar way as other criminal wrongdoers^[i]. Around the mid-eighteenth hundred years, a push for specific treatment of juvenile offenders began.

DISTINCTION BETWEEN JUVENILE AND CHILD

A minor is a person who is under the age of legal obligation and responsibility, or who is yet to reach the lawful age of 18 years. An accused child of a crime cannot be attempted as a grown-up and moved to a Child Care Centre, whereas a juvenile is somebody between the ages of 16 and 18. A young person who has been accused is a juvenile and can be tried in court as an adult.[ii] As a rule, the two terms have a similar definition, however, the difference lies in the legal implications. Minor indicates a child or teen, while a juvenile indicates either an immature person or a young offender.

PRESENT SCENARIO

At present time, a development for the exceptional treatment of juvenile offenders has begun throughout the world including in many nations like the U.K. and the U.S.A. This development began around the eighteenth hundred years. Before this, juvenile offenders were treated as same as other criminal wrongdoers[iii]. Furthermore, the General Assembly of the United Nations has embraced a Convention on the Rights of Child on the twentieth of November 1989 to safeguard the well-being of juvenile offenders. The Convention expresses that to safeguard the social – reintegration of adolescents, there will be no legal action and court preliminaries against them. The Convention drove the Indian Legislation to nullify the Juvenile Justice Act, of 1986 and to make another regulation. Consequently, Indian Legislation concocted another demonstration which was called “The Juvenile Justice (Care and Protection of Children) Act, 2000.”

The Juvenile Justice, 1986 which revoked the previous Children Act, 1960, pointed toward giving impact to the rules contained in the Standard Minimum Rules for the Administration of Juvenile Justice embraced by the U.N. nations in November 1985. The previously mentioned Act comprised 63 Sections, and 7 Chapters and is stretched out to the whole of India, except for the State of Jammu and Kashmir. The basic role of the Act was to give care and insurance, treatment, improvement and recovery to the ignored juvenile delinquents. The principal goals of the Act were:

a. The demonstration essentially set down a uniform structure for adolescent equity in the country so that it safeguards the right and interests of adolescents.

b. It discusses the apparatus and infrastructure for the consideration, insurance treatment, advancement and recovery of the adolescent wrongdoers.

c. It set out the fundamental arrangements for the appropriate and fair organization of law enforcement in the event of horrifying wrongdoing done by adolescent guilty parties.

The Indian Juvenile Justice Policy is created around the Constitution. Articles 15 (3), 21, 24, 39 (e) and (f), 45 and 47 of the constitution, in addition to different worldwide Covenants, remembering the UN Convention for the Rights of the Child (CRC) as well as the UN Standard Minimum Rules for Juvenile Justice Administration (Beijing Rules). The United Nations General Assembly passed the Convention on the Rights of the Child on November 20, 1989, which incorporates arrangements to protect the right of young wrongdoers. This exhibit additional safeguards the social breaking down of juveniles by expressing that no legal activities or court preliminaries would be held against juveniles. The Indian Parliament was pushed to invalidate the Juvenile Justice Act of 1986 and substitute it with the Juvenile Justice (Care and Protection of Children) Act of 2000, which is an improved and essentially better version. Moreover, the Juvenile Justice Act of 1986 replaced the Children Act of 1960 to take on the United Nations General Assembly’s Standard Minimum Rules for the Administration of Juvenile Justice, which was passed in November 1985. Except for Jammu and Kashmir, the law laid out a public starting point for the insurance of the privileges and interests of juveniles. It also covered a few major requirements for the organization of equity as well as the game-plan to be taken when teens commit shocking offences.

The Juvenile Justice Act of 2000 was enacted with the United Nations General Assembly’s 1989 in mind. Its object was to consolidate and amend the law relating to juveniles in conflict with the law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach. Albeit it was amended twice in 2006 and 2011, it was insufficient in shutting out the defect and incompetency. To counter the advancement of juvenile offenders in India, the regulation was cancelled and replaced with The Juvenile Justice (Care and Protection) Act, 2015, which is presently the key rule controlling India’s juvenile equity framework.

The “case of immaturity,” which implies to concluding who might request the freedoms of an adolescent or who can be considered an adolescent, is the first and foremost question that needs to be answered. In India, the Juvenile Justice Board leads a case of immaturity as per Rule 12 of the Juvenile Justice Rules, 2007. The board must decide the case of immaturity under the steady gaze of the court procedure, nonetheless, the case might be raised anytime, even after the case has been chosen. The Court deduced on account of Kulai Ibrahim v. Territory of Coimbatore^[iv] that under Section 9 of the Juvenile Justice Act of 2015, a charge has the privilege to document a case of immaturity anytime all through the preliminary or even after the issue has been settled. The Supreme Court administered in Deoki Nandan Dayma v. Province of Uttar Pradesh^[v] that an understudy’s date of birth expressed in school records is OK proof for deciding an adolescent’s age.

India has laid out a regulation that tends to juvenile offenders’ privileges, interests, and security. This is an endeavour to resolve the issues connected with adolescent misconduct. The three mainstays of India’s adolescent equity framework are as per the following: The three mainstays of India’s adolescent equity framework are as per the following:

Youthful guilty parties ought not to be arraigned in courts; all things being equal, they ought to be given the most ideal recovery. Rather than being rebuffed by the courts, they ought to be offered reformative changes. A youngster disregarding the law ought to get non-reformatory consideration while on trial^[vi], in light of the local area’s social control organizations, like Observation Homes^[vii] and Special Homes^[viii].

A consequence of the Nirbhaya Case^[ix]

Today (After the Nirbhaya case) many individuals know that a different Justice System exists for Juveniles. Many people are not yet aware of how JJS functions. After the episode of Nirbhaya, individuals turned resentful and communicated their antagonistic mentality towards the decision of the court. They requested a capital punishment for the juvenile convicted in the Nirbhaya case. There was thundering in parliament and the new regulation (Juvenile Justice Care and security of youngsters 2015) was enacted in India. It is an extensive arrangement for youngsters claimed and regarded to be in trouble with the law. It additionally manages juveniles needing care and assurance. This regulation is instituted thinking about the Rights of the Child and other related worldwide instruments. The administration of India consented to the show of Rights of the Child (CRC) on 11 Dec.1992. As per the global deals and established boundaries, it is the obligation of the state to treat the juveniles with all delicateness and see to their well-being. In any case, there are major areas of strength for the interest of crueller discipline for young people who carry out heinous offences. For example, offences like homicide, assault, burglary, dacoit and so on. Such juvenile offenders ought to be rebuffed like grown-ups.

Obviously, there is an incendiary manner of speaking about youth violations and there is expanded public scepticism about the present JJS. Since the reception of our constitution a lot of endeavours were made to comprehend the way of thinking of the JJS and as needed by different regulations were sanctioned. However, every one of the endeavours is apathetic and needs serious thought. The partners of the Juvenile Justice Administration should observe the difficult circumstances that win in our JJS. Learned people condemn misguided strategies and waste of enormous valuable assets.

CONCLUSION

The Juvenile Justice System depends on the rule of social government assistance and privileges of the kid. The focal point of the JJS is reorganization and recovery. It sets out to open doors for the youngster to foster his character. The objective, all things considered, is to continue ahead to make a populist society of high request. Youngsters are the future assets of the country. They should be nurtured from negative to positive characters. Nonetheless, shifting focus over to the previous experience, we need to connect the wide hole between hypothesis and practice. In this cycle, we need to construct a decent framework and productive Juvenile Justice Administration. The new regulation conveys the fantasies, however, what we really want is to make the fantasy, a reality.

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

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[i] https://www.juscorpus.com/the-role-of-the-juvenile-justice-system-in-india/ ( Last accessed on 17 June, 2022 )

[ii] https://blog.ipleaders.in/juvenile-justice-system-india/  ( Last accessed on 17 June, 2022 )

[iii] https://www.legalserviceindia.com/legal/article-6794-juvenile-justice-system-in-india.html ( Last accessed on 17 June, 2022 )

[iv] Kulai Ibrahim v. State Rep. by the Inspector of Police B-1, Bazaar Police Station, Coimbatore [2014] (142) AIC 144

[v] Deokinandan And Ors. vs State Of U.P. And Ors. [1995]  1996 CriLJ 61

[vi] Juvenile Justice (Care and Protection) Act, 2015. Section 2 (13)

[vii] Juvenile Justice (Care and Protection) Act, 2015 Section 47

[viii] Juvenile Justice (Care and Protection) Act, 2015. Section 48

[ix] Mukesh & Anr v. State For NCT of Delhi & Ors. (2017) 6 SCC 1

“I think those who have a terminal illness and are in great pain should have the right to
choose to end their own life, and those that help them should be free from prosecution.”

Stephen Hawking

INTRODUCTION

While survival is unquestionably important, life may also be unpleasant and terrifying at times under certain circumstances. Euthanasia is nothing more than permission or license given to a medical provider to end the life of a person. Though the Constitution of India allows a feasible way of living a healthy and dignified life, it does not allow for voluntary death. The practice of euthanasia raises complex questions of legal and execution conformity in countries all over the world. Every individual wishes to live and enjoy life till the end of his or her days. However, there are certain instances when a man wants to end his life on his own volition, no matter how strange it is to end one’s life in such an unconventional way.

The phrases ‘euthanasia‘ and ‘thanatos’ are derived from the Greek words ‘eu’ and ‘thanatos,’ which mean ‘happy death’ or ‘easy death,’ respectively. When a person takes his or her own life, we call it “suicide,” but when others take a person’s life at the desire of the dead, we call it “euthanasia” or “mercy killing”. It is the physician’s painless end of the life of an acutely suffering patient at the patient’s request¹.

As a corollary, euthanasia is identified with those who are suffering from a fatal disease or incapacitation and refuse to live the remainder of their lives in misery and suffering. A terminally sick or disabled individual should be able to choose whether or not to live. Euthanasia is a divisive topic that touches on a society’s ethics, integrity, and principles.

TYPES OF EUTHANASIA

Euthanasia is usually performed when a person wants and requests relief; however, When a person is unable to make such a request, euthanasia is employed as a last resort.

On the basis of informed consent:

1. Voluntary Euthanasia
2. Non-Voluntary Euthanasia
3. Involuntary Euthanasia

On the basis of its manner:

1. Active Euthanasia
2. Passive Euthanasia

● Voluntary Euthanasia: Euthanasia is deemed voluntary when it is carried out with the patient’s expressed wish and agreement. The ability of the terminally ill patient to choose whether or not to end his or her life, a choice that serves his or her best interests as well as the interests of others, is at the heart of voluntary euthanasia. In this circumstance, it can be demonstrated that the permission given should be free of any sense of obligation, i.e., the decision to utilize Euthanasia was an example of unconstrained self-determination. This is the most widely accepted form of euthanasia on a global scale.

● Involuntary Euthanasia: Involuntary euthanasia is euthanasia that occurs against a person’s will and is frequently seen as murder. As a result, involuntary euthanasia happens when the patient has refused to consent to the surgery and is an unwilling participant. During World War II, Nazi Germany carried out similar executions in gas chambers involving physically disabled or mentally handicapped persons. It appears to be immoral and brutal.

● Non-Voluntary Euthanasia: It refers to the death of someone who is not psychologically capable of making an informed death request, such as a comatose patient. The patient has not left a living will or provided any prior directives in non-voluntary euthanasia because he may not have had the opportunity to do so or may not have foreseen any such catastrophe or scenario. Family members are frequently the ones who make the choice in circumstances of non-voluntary euthanasia. This includes cases where a person is in a coma/ too young/ absent-minded/ mentally challenged/ severely brain-damaged.

● Active Euthanasia: The act of intentionally reducing one’s life is known as ‘active’ Euthanasia. Active Euthanasia is the practice of putting people to death without suffering for compassionate reasons, such as when a doctor gives a patient a deadly amount of medicine. In this instance, a person cannot inflict his own death and must rely on the assistance of someone else to administer a lethal prescription. Active euthanasia is banned in India and is a crime under sec. 302 of Indian Penal ode, 1860 or at the very least section 304 of the Indian Penal Code, 1860.

● Passive Euthanasia: Postponing medical care in order to prolong life, such as withholding antibiotics when a patient is likely to die if they are not provided, or removing the heart-lung machine from a coma patient, are examples of passive euthanasia. Passive Euthanasia is the purposeful absence of a life-prolonging act. It entails failing to take action to avoid death, such as when a doctor refuses to use a device that would keep a terminally sick patient or a patient in a persistent vegetative condition alive. In India, passive euthanasia is the sole legal manner to administer euthanasia. The physicians are not intentionally murdering somebody in “passive euthanasia,” they are just not rescuing him.

JUDICIAL VIEW OF EUTHANASIA

The subject of whether or not to allow a person to die has been debated by Indian courts on several occasions. State v Sanjay Kumar² was the first case in which such an issue was raised before an Indian court. The Indian Penal Code, 1860, Section 309, is outdated and unfit for Indian society.

In Maruti S. Dubal v State of Maharashtra³, the Bombay High Court found Section 309 to be unconstitutional because it violated Article 21 of the Indian Constitution’s right to life, whereas the Andhra Pradesh High Court found Section 309 to be constitutionally valid in Chhena Jagadesswer v State of Andhra Pradesh⁴. The Bombay High Court observed in Naresh Marotrao Sakhre’s⁵ case that suicide is, by its very nature, an act of self-killing or self-destruction, an act of ending one’s own life without the help or support of any other human agent. On the other hand, euthanasia, often known as mercy killing, refers to and implies the use of another human agency to end a person’s life. As a result, mercy killing is not the same as suicide. Both legally and factually, the two notions are separate. Whatever the circumstances, euthanasia or mercy killing is nothing more than homicide.

The Supreme Court declared Provision 309 of the Indian Penal Code to be legally legitimate in Gian Kaur v. the State of Punjab⁶, however in the current situation, even though this section is constitutional, it is time for the Indian government to repeal it because it is outdated.

196^th REPORT OF LAW COMMISSION

The Law Commission of India’s 196th report went into great detail on the subject. The main question before the Law Commission was whether or not terminally sick individuals should be denied or denied medical treatment (including artificial nourishment and hydration).

The Law Commission addressed a number of issues, including who are competent and incompetent patients, what constitutes an informed decision, what constitutes a patient’s best interests, and whether patients, their relatives, or doctors can petition a court of law for a declaration that a doctor’s act or omission, or a proposed act or omission, is lawful, and, if so, whether such a decision will be binding on the parties and doctors in future civil and criminal proceedings. The Law Commission suggested enacting legislation to safeguard terminally ill individuals who refuse medical care, such as artificial nourishment and hydration.

The Law Commission further stated that, while medical practitioners will contact the patients’ parents or close relatives, it is the doctor’s right to make a clinical choice based on professional medical opinion and the doctor’s decision should be based on the Medical Council of India’s norms. The treating physician was not given the option of selecting an expert of his own choosing.

CONCLUSION

Euthanasia is an intensely stressful and sensitive topic that sometimes leads to disagreements and misconceptions. Given its wide use in the media and scholarly research, it lacks a consistent set of ideas and meanings. Euthanasia dialogues are frequently ill-informed and ineffective, resulting in more frustration than answers. The debate over good death is an existential, emotionally charged, and ethically controversial discourse that will almost certainly continue to be a severe social and legal burden.

The crux of the problem is that individual autonomy and rights must be fostered in order for an individual to make decisions about his or her own life and death, but the right to life must be vigorously safeguarded. Suicide has become criminal in general as a result of the Gian Kaur case, but euthanasia has not. In Aruna Ramchandra Shanbaug v. Union of India, our Supreme Court has recognized passive euthanasia, stating that while passive euthanasia is admissible under the law in rare situations, active euthanasia is not. When legislation on the subject is drafted to avoid euthanasia malpractices and misuse, the suggestions made in the Law Commission of India’s Reports and the directions offered in the Aruna case must be taken into account. Furthermore, if the aforementioned proposals are adopted, the risks of euthanasia being misused would be considerably decreased.

Aside from religious and moral considerations, the ideas of life and death have been altered as a result of the expansion and development of science and technology. Medical science has advanced to the point that it is now possible to prolong both life and death. This knowledge makes it possible to prevent death in those who are in excruciating agony to a substantial extent.

CITATIONS:

1. Brody Baruch, Life and Death Decision Making, NewYork: Oxford University Press, 1988.
2. 1985 Cr.L.J.931
3. 1987 Cr.L.J.743
4. 1988 Cr.L.J.549
5. Naresh Marotrao Sakhre v. UoI; 1995 Cr.L.J.95 (Bomb)
6. 1996(2) SCC 648; AIR 1996 SC 946

This article is written by Sanskar Garg of the School of Law, Devi Ahilya University, Indore.