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Relevance of Torts in Present Scenario

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Introduction

Any civil wrong for which the law provides a remedy is referred to as a tort. Torts compensate people and property for injuries caused by someone else’s negligence. Essentially implying, a tort is a civil wrong independent of a contract where the only remedy available is in the form of compensation. A tort is the French version of the English word “wrong” as well as the Roman law term “delict.” The term tort comes from the Latin word “tortum,” which denotes “twisted, crooked, or incorrect.” plays a role in disciplining organizations and individuals who cause harm to others through reckless and negligent behavior. The fundamental principle of tort law is Ubi Jus Ibi Remedium. The objective of tort is to recompense the victim whose legal right has been infringed or violated by the person who caused the damages in the first place, as well as to deter them from repeating the same breach in the future. In India, tort law is a relatively young common law development reinforced by codifying statutes, including damages statutes. Tort first appeared in India, which is still a developing country, with the establishment of British India. Following independence, India embraced British laws, including the distorted idea of tort law. While India generally takes the same strategy as the United Kingdom approach, there are some variances that could show judicial intervention, causing controversy. Because of conflicts about who should carry the economic burden of an accident and what damage should be compensable, there has always been concern over whether tort law should be restricted. Although statutes such as the Motor Vehicles Act of 1988, the Consumer Protection Act of 1986, and the Environment Protection Act of 1986 were enacted to establish tort liability in India, there is no official codification or formal legislation of tort law in our country. It has also been held that section 9 of the Code of Civil Procedure, 1908, which allows the civil court to try all civil matters, implicitly confers jurisdiction to apply tort law as a matter of justice, equity, and good conscience. As a result, the court can use its inherent powers under section 9 to expand this area of liability.

Law of Torts in Present Scenerio

A Brief Outline

COVID-19’s spread has clearly been one of the most challenging moments for the judiciary all over the world for administering justice. The judiciary in India, the world’s largest democracy, has always been challenged by the huge amount of litigation cases that come before courts every day. An Indian court can assume jurisdiction by being the site where the cause of action, the tort; occurred, according to India’s conflict of law provisions, which are yet uncodified. Analyzing the situation in other nations, India considered its own capacity to avert a pandemic, taking into account the limited resources available in a country with an inadequate health infrastructure.

With the current persistent provisions, the plaintiff(s) filing a lawsuit in an Indian court would have the onus of responsibility to prove that the Chinese government’s concealment of the virus’s nature and failure to take appropriate measures to contain it, creating an actionable act under both Chinese and Indian law, and thus the suit will be governed concurrently by both the Chinese and Indian tort law.

According to the House of Lords’ interpretation of common law principles, negligence is defined as a failure to exert the degree of care that should have been undertaken by the doer. As stated in Rajkot Municipal Corpn. vs. Manjulben Jayantilal Nakum, (1992 ACJ 792), Indian tort law is based on common law principles as;

  1. that the defendant owed the plaintiff a “legal” obligation of duty and care
  2. that the defendant breached this duty
  3. the plaintiff suffered harm as a result of the defendant’s breach

The Liability of Spread of Virus

China’s ‘responsibility of care’ to India and its residents can be traced back to the relevant sections of the International Covenant on Economic, Social, and Cultural Rights and the International Health Regulations, 2005. This legal obligation to non-nationals can be extended to include a duty to other countries and their citizens. China has breached its duty of care to the countries by failing to notify the World Health Organization in accordance with the International Health Regulations of 2005 in a timely manner despite the given signs of a public health issue and the whistleblower being subjected to traumatic measures for threatening the name of the country in an international context.

“Using a constructive knowledge criterion holds liable individuals who actively avoid knowledge of infection even when suffering apparent indications of a disease,” it was determined in the case of Endres v. Endres. California’s courts had imposed culpability in another case, Doe v. Roe, even when the person spreading the disease believed they were not infected.

Although it has not been resolved whether a cause of action for negligently disseminating COVID-19 can exist, it appears that the individuals should be held accountable because they knew or should have known that they were carriers of the virus; those people had an obligation to avoid COVID-19 transmission and thus contain the spread ensuring the right to live of other individuals.

The Liability to ensure the public health

Suits have already been brought against cruise ship operators, nursing homes, and entertainment venues, alleging that someone wrongfully exposed me/my loved ones to COVID-19, and we/they became infected/died as a result. It may be simple to demonstrate causation in some cases (for example, some who are infected by the virus were in very closed locations such as nursing homes given the knowledge about incubation periods, it is reasonable to infer that they caught the coronavirus in that location). While causation may be simple to establish, for example, prisoners with coronavirus definitely caught the disease inside prisons, there may be no negligence with the institutions’ poor health and medical infrastructure.

Doctors who prescribe drugs to COVID-19 patients that the Regulatory Authority has approved for other applications should be insulated from liability by legislation if the drugs don’t work, as long as scientific evidence supports their usage for this purpose. Liability considerations have delayed the development of new vaccinations in the past, as seen by outbreaks of smallpox and other influenzas. In 1976, when President Gerald Ford launched an ambitious effort to immunize millions of people against a swine flu outbreak, insurers and manufacturers refused. Liability shields have allowed businesses to manufacture effective therapies swiftly while avoiding legal repercussions. However, taking complete responsibility for highly new items that are developed and licensed at breakneck speed is a dangerous endeavor for countries.

Although governments’ tortious culpability should be assimilated to that of citizens, ‘there are limits to the extent to which that is achievable because governments’ character and functions differ from those of individuals. Assessing the reasonableness or unreasonableness of government policy decisions is an unsuitable matter for judicial consideration in determining government tort liability. Considerations in the context of the COVID-19 pandemic and government culpability in negligence might include the potential of harm being caused to the public and the economic loss sustained as a result of putting in place contagion-control procedures.

Medical Negligence

The Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab Appeal (Crl.) 144-145 of 2004 opined that;

Negligence is defined as a breach of duty caused by the failure to do something that a prudent and reasonable person would do, or by doing something that a prudent and reasonable person would not do, based on the principles that normally govern the conduct of human affairs.

Mismanagement, denial of proper care and medical help to patients, non-observance of safety rules have all been reported, putting the lives of both healthcare personnel and patients in jeopardy. These difficulties raise the issue of medical negligence reflecting the tortious liability. In light of the harsh conditions in which doctors work, there are suggestions that medical practitioners be temporarily exempt from liability for medical malpractice. Another intriguing viewpoint is to look into alternative dispute resolution processes in which the patient can be reimbursed financially to the degree possible.

Conclusion

Rather than basing our judicial thought on English laws, we need to develop new principles and norms that effectively address the difficulties of India thus indicating a need for our own jurisprudence. The spread of COVID-19 has undoubtedly been one of the most difficult times for humanity to accept, and because the number of cases is alarmingly high with various mutant variants taking a spread, it is the responsibility of each and every individual to act responsibly with the negligent people, as well as the ruling machinery, who must be held accountable for their actions. With one recent instance of the case of Johnsons & Johnsons Talc Powder Cancer Case in tort law where 22 women in the US state of Mississippi claimed to have developed ovarian cancer after using Johnson’s talcum powder, and the firm granted them $3.6 billion amplifies the importance of tort jurisprudential evolution in India where the aggrieved would have a justified resort to resolve the grievances.

This article is authored by Aathira Pillai a 5th year BLS LLB student of Dr. D. Y. Patil College of Law.

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Basic Structure of Indian Constitution: Eminent Judicial Pronouncements

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Introduction

The Constitution is not a mere lawyer’s document, it is a vehicle of life, and its spirit is always the spirit of the age.

Dr. B.R. Ambedkar

As the mitochondria in biology are referred to as the powerhouse of the cell, the Indian Constitution can be said to be the powerhouse for the working system of the nation. It is an instrument of control for the three arms of the nation namely Legislature, Executive & Judiciary. It helps in the systematic separation of power between the three arms of the government, safeguarding the rights & providing the limitations for the inhabitants. 

Basic structure doctrine & its evolution

As article 368 power to the parliament (legislature) to amend the constitution when the necessity arises, the article also lays the fundamental rules & procedure for amending the constitution.    

Parliament’s amending powers are absolute and they incorporate all parts of the constitution. Although, the Supreme Court has functioned as decelerate to the legislative ardor of Parliament since India’s independence. With the focal intent on safeguarding the beliefs of the constitution-makers, the Supreme Court articulated that Parliament could not contort; detriment, or reorient the fundamental characteristics of the Constitution under the plea of amending it.  

It was the case of Indra Nehru Gandhi case in which the faith of the doctrine of basic structure was established & reaffirmed. The petitioner had filed an appeal against the ruling of the Allahabad High Court refusing her win in the election as the Prime Minister. While the appeal was unsettled or in reserve at the Supreme Court, the 39th Amendment was legislated and upheld which affirmed that no court has its jurisdiction over the election of the Prime Minister. Certain other features were also added like the Rule of Law & Power of Judicial Review to the basic structure.

In the case of Minerva Mills, the Supreme Court gave lucidity to the doctrine and set out that the power of amendment under Article 368 is restricted and execution of such power cannot be absolute. A restricted amending power was important for the basic structure doctrine of the Constitution. Further, the congruence and harmony between fundamental rights and directive principles are additionally essential for the basic structure, and anything annihilating the equilibrium is an ipso facto infringement of the doctrine. 

The case of L. Chandra Kumar, again expressed that the power of judicial review under Article 32 of the Supreme Court and Article 226 The High Court is essential for the basic structure doctrine and these powers cannot be attenuated by moving them to administrative tribunals.

Golak Nath Era

The Constitution of India was amended in 1951, which set forth the much-discussed Article 31A and 31B to it. Article 31B instituted the ninth Schedule which asserted that any law gave under it could not be tested for the infringement of Fundamental Rights according to Article 13(2) of the Constitution. Article 13(2) states that the Parliament will not draft any law which abbreviates the rights given under Part III and to that degree it will be void.

An appeal was documented in the Supreme Court of India testing Article 31A and 31B on the ground that they curtail or detract rights ensured under Part III of the Constitution which is against the pneuma of Article 13(2) and thus ought to be pronounced void. In the case of Shankari PrasadThe, Hon’ble Supreme Court held that the power to amend the Constitution including the Fundamental Rights is presented under Article 368, and the word “Law” as referenced under Article 13(2) does exclude an amendment of the Constitution. There is a dissimilitude between Parliament’s law-making power, that is, the legislative power and Parliament’s power to amend or integral power.

After this, few amendments were brought to the Constitution and indeed the extent of amendments was tested in the Sajjan Singh case. The five-judge bench in Sajjan Singh dispensed the legitimacy of the 17th amendment which had added 44 regulations to the 9th schedule. However the entirety of the judges concurred with the verdict of Shankari Prasad yet without precedent for the agreeing belief by Hidyatullah and Mudholkar JJ, questions were raised on the liberating power of Parliament to amend the Constitution and reduce the fundamental rights of the residents.

The Golak Nath verdict

In 1967 an eleven-judge bench of the Supreme Court, passing its 6:5 majority judgment in the Golak Nath case, Chief Justice Subba Rao set forth the inquisitive position that Article 368, which contained provisions associated with the amendment of the Constitution, simply set out the amending procedure. Article 368 did not present upon Parliament the power to amend the Constitution. The amending power (constituent force) of Parliament emerged from different provisions contained in the Constitution (Articles 245, 246, 248) which enabled it to make laws i.e. plenary legislative power.

Consequently, the Supreme Court held that the amending power and legislative power of Parliament were basically something similar. Hence, any amendment of the Constitution should be account law as perceived in Article 13 (2).

The judgment summoned the idea of inferred constraints on Parliament’s power to amend the Constitution. Article 13, as per the majority view of judgment, manifested this constraint on the power of Parliament. Parliament could not change, limit or hinder fundamental rights because of this very plan of the Constitution and the idea of the rights allowed under it. The judges expressed that the fundamental rights were so sacred and supernatural insignificance that they could not be limited regardless of whether such a move was to get the consistent endorsement of the two houses of Parliament. They saw that a Constituent Assembly together might be invoked by Parliament to amend the fundamental rights if vital.

Kesavananda Bharati Era

This case was at first filed to challenge the legitimacy of the Kerala Land Reforms Act, 1963. However, the 29th Amendment of the Constitution set it under the 10th schedule. The appellant was allowed to challenge the 29th Amendment as well as the legitimacy of the 24th and 25th Amendments. 

  • The Kesavananda Bharati Judgement

The notable judgment was given by a 13 judge bench and with a 7:6 majority; they overruled the Golak Nath case. It was held that the power of Parliament to amend the Constitution is all over and reaches out to every one of the Articles yet it’s anything but limitless to a degree that it annihilates certain fundamental features or structure of the Constitution.

The Hon’ble Supreme Court, although, held that the 24th Amendment was legitimate as it just states what was available before certainly. It does not augment the powers of Parliament; Article 368 consistently incorporated the power and way to amend the Constitution.

Basic features of constitution according to Kesavananda verdict

Each judge set down independently, what he thought were the primary or fundamental elements of the Constitution. There was no unanimity of assessment inside the majority view. 

The majority view of the verdict, Chief Justice Sikri, clarified that the idea of basic structure incorporates:

  • Primacy of the Constitution 
  • Conservative and elected based of government 
  • Secular nature of the Constitution 
  • Separation of powers between the legislature, executive and the judiciary
  • Federal nature of the Constitution

Justice Shelat & Grover added two more essential characteristics to the list: 

  • The command to assemble a government assistance state contained in the Directive Principles of State Policy
  • Solidarity and probity of the country

Justice Hegde & Mukherjea recognized a different and more limited list of fundamental characteristics: 

  • Supremacy of India 
  • Parliamentary based feature of the country 
  • Solidarity of the country 
  • Fundamental characteristic of the individual freedom got to the residents 
  • Command to construct a government assistance state

Justice Jaganmohan Reddy expressed that components of the fundamental highlights were to be found in the Introduction of the Constitution and the arrangements into which they interpreted, for example: 

  • Sovereign elected republic 
  • Parliamentary democracy 
  • Three organs of the State

The minority view of the verdict given by Justice A.N. Ray, M.H. Beg, K.K. Mathew and S.O.N. Dwivedi additionally concurred that the Golaknath verdict had been wrongly interpreted. They maintained the legitimacy of every one of the three amendments tested under the eye of the court. Justice Ray held that all pieces of the Constitution were fundamental and no qualification could be made between its fundamental and unimportant parts. Every one of them concurred that Parliament could enact fundamental amendments in the Constitution by practicing its power under Article 368.

Conclusion

One of the most favorable attributes of the Indian Constitution is that it can be amended as per the needs of society. The basic structure doctrine gives the fine harmony among adaptability and inflexibility that ought to be there for amending the power of any Constitution. In today’s time, we can say that there is no quarrel concerning the doctrine but, the only trouble that emerges time & again is the content of the same. 

Still, the sovereign, parliamentary based and secular character of the nation, rule of law, judicial independence, fundamental rights of residents, and so forth are a portion of the fundamental characteristics of the Constitution that have seemed consistently in the Supreme Court’s pronouncements.

The article has been written by Ajay Kataria, from Dr. B.R. Ambedkar National Law University, Sonepat, Haryana.

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Analytical Positivism

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INTRODUCTION

Jurisprudence is defined as the science or philosophy of law. The origin of this term can be traced back to a Latin term, ‘Jurisprudential,’ translated to the ‘study, knowledge or science of law.’ There are five primary schools of thought in jurisprudence. They are:

  • Philosophical School.
  • Historical School.
  • Realist School.
  • Sociological School.
  • Analytical School.

This article attempts to explain the analytical positivism of the analytical school of thought. The analytical school of thought is also known as the positivist law or the positive school. This is mainly because the proponents of this theory focused on what the law is rather than what it should be. For example, if there is a law that punishes anyone murdering with a death sentence, then according to the positivist law, people must follow this rule without questioning if anyone should be given a death sentence. Analytical positivism calls for consideration of empirical facts, rejecting any moral or value-based theories.   

ORIGIN

Through the 18th century, the natural law theory was more prominent in practice. According to the natural law theory, there are some laws common to all societies irrespective of their cultural or ethnic backgrounds. Natural law theory is based on the premise of the human conscience of what is good and what is evil. Anything morally wrong is considered to conflict with the law according to this theory. It was only around the beginning of the 19th century when the positivist school of thought emerged, rejecting the unclear assumptions of the natural law school. 

As proposed by Jeremy Bentham and John Austin, the theory of utility and analytical positivism contributes majorly to the analytical school of thought. Analytical positivism also found support in the works or ideas of philosophers like Salmond, Hart, and Holland. Auguste Comte, a French thinker, was the first one to coin the term positivism. The term ‘positivism’ has five meanings:

  1. Law commands.
  2.  Legal concept analysis differs from social and historical investigations and critical evaluation.
  3. Decisions can be made based on predetermined guidelines.
  4. Moral judgments cannot be accepted or defended by rational arguments.
  5. Law, as it is, must be kept separate from the law that ought to be.

JEREMY BENTHAM’S CONTRIBUTION

In England, Jeremy Bentham became the flag-bearer of a new era of history in legal thought. His theories on positivism later led to the establishment of a new school of thought (Analytical School of thought). Around the late 18th century, the law that existed in England was mainly developed through customs. The then prevailing English legal system lacked organization. At this point, Bentham, with his robust positivist approach, gave a new direction for legal research and lawmaking. His ideas laid the building blocks for a phase of transformation from Blackstone’s Natural Law Theory to the Analytical School of thought.

In Bentham’s belief, every law must be considered concerning eight aspects, namely:

  1. The source of the law
  2. The subject of the law could be either persons or things.
  3. The object for the enactment of the law.
  4. The extent of the applicability of the law
  5. The aspect of the law, i.e., whether it is directive or sanctioned.
  6. Force
  7. Expression and
  8. Remedial State Appendages

This was a first-of-its-kind proposition and further laid the foundations of a new approach. Bentham’s theory might have some shortcomings, but no one can deny his importance in shaping the positivist approach of the Modern English law and laying the bedrock for the emergence of new schools of thought, the Analytical school being one of the most important of them. Needless to say, John Austin also owed much to Jeremy Bentham for his works on Analytical Positivism.

JOHN AUSTIN’S CONTRIBUTION

English legal theorist John Austin has extensively used the analytical method in his works, and hence the analytical school founded by him became famous with different names like positivism or analytical-positivism. For his significant contribution in this field, he came to be known as the father of the analytical school of thought (the law of positivism). Austin believed the law to be the command of the sovereign (imperative concept of law), imposed by politically superior to politically inferior. Austin was the first one who had set out to differentiate between positive law and positive morality through his works. A positive morality, according to him, is a law by analogy and hence not an appropriate subject matter to be discussed under jurisprudence. In his theory, Austin did not include laws of inanimate objects or improper laws. 

He had a firm idea of law being rules set by men for men. He divided law into two parts:

  1. Human law
  2. Laws of God

Human law can be further divided into two kinds:

  1. Positive law – Laws set by persons acting as political superiors in pursuance of legal rights. (According to Austin, positive law was the proper subject matter to be dealt with under jurisprudence.)
  2. Other laws – Several rules or opinions which have moral and sentimental undertones. (International law is classified under this category by John Austin.)

Austin’s theory was clear, simple, and consistent in regards to what it wanted to explain.

This made his proposed school of thought quite famous, and many other jurists and schools of thought have followed after it. However, many theorists have later classified John Austin’s school as the Imperative school. This is because positivism is a term that failed to define the idea of Austin’s school single-handedly. Similarly, the word ‘analysis’ was not confined to this school and hence could create confusion.

Austin is given the credits for opening a new era of approach to law. Even the flaws of his theory paved the way for new ideas to follow. Later many jurists and philosophers such as Salmond and Gray took inspiration from his thoughts and improved upon his approach.

CONCLUSION

In conclusion, we can say, the analytical school of jurisprudence believes that the most significant feature of the law is its relationship to the state. As a result, the school is also known as the obligatory school. In the United States, prominent jurists like Gray, Hohfeld, and Kocourek supported the school, as did Kelson, Korkunov, and others in the Continent. Analytical Jurisprudence is a methodological approach to law that views law as a collection of actual interlinked principles rather than a random collection of rules intrinsically linked to the transcendental Law of Nature. It aims to describe, classify, identify the key characteristics, and establish a yardstick by which all laws may be judged.

The article has been written by Debasmita Nandi, a first-year law student of Christ (Deemed to be) University Lavasa.

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Kuchwar Lime and Stone Co. v. Dehri Rohtas Light Rly. & Co. Ltd. (AIR 1969 SC 193)

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CASE NUMBER

Appeal (Civil) – 210 and 230 of 1968


EQUIVALENT CITATION

1969 AIR 193, 1969 SCR (1) 359


BENCH

SHAH, J.C., BHARGAVA, VISHISTHA


DECIDED ON

15/07/1968


RELEVANT ACT/ SECTION

Colliery Control Order, 1945 – Clause 5, Clause 4, Clause 6(1), Clause 8
Coaching Tariff – Rule-108 – Clause (2), Clause (8)
Clause 20 in Part -III of the Goods Tariff
Essential Supplies (Temporary Powers) Act, 1946
Railway Act, Section 56


BRIEF FACTS & PROCEDURAL HISTORY

A quantity of steam coal was booked by Colliery to the appellant company (Kuchwar Lime & Stone Company) to Banjari Station on the Dehri Rohtas Light Railway. The Company accepted the delivery of one part of the consignment but refused the delivery of the other part on November 12, 1954, at Banjari Station.


After correspondence between the parties and the Coal Controller, the Railway Administration served the notice on the Company and Colliery on April 28, 1955. The Railway sold the unclaimed coal at public auction for Rs. 1,050 on June 2, 1955.


After this, the Railway filed a suit against the Company and the Colliery in the Subordinate Court claiming demurrage for 202 days during which six wagons were remained unloaded, detained, and sought a decree for Rs. 17,625/14 after giving credit for the amount realized from the sale of the unclaimed coal. The subordinate court granted the decree of Rs. 1,620, with interest. However, the High Court modified the decision of the trial court and granted the decree for the full period.


ISSUES BEFORE THE COURT

  1. Whether consignee (Company) is liable after refusing to take the delivery of the consignment.
  2. Is the Railway entitled to demurrage for a full period? Or is it obliged to unload and claim demurrage only for a reasonable period?

RATIO OF THE CASE

The Company contended that the Railway should be granted the demurrage only for 22 when the wagons were detained. The court observed that once the notice is served to the owner, Section 56 of the Railway Act empowers the Railway to sell the consignment after serving the notice to the owner. The six wagons reached Banjari Station on November 12, 1954, and before this, the Company had already denied accepting the goods. It was the duty of the Railway to sell the consignment. The Railway had delayed unloading the wagons and putting them to use after the expiry of the reasonable period.


It was further contended that the Company is not liable for the freight and demurrage to the Railway because there was no privity of contract between the Company and the Railway. Another contention was that the consignee is liable for the payment of demurrage charges as the wagon detained is for his convenience. However, the court said that if the wagon detained is for the benefit of the consignee. If he refuses to take the delivery, he could be held liable to pay for freight and demurrage by the Railway. Therefore, the Company is entitled to pay the freight or the demurrage. The court was unable to hold that the Company is not liable to pay the freight and the demurrage because the Colliery had entered into the contract with the Railway.


DECISION OF THE COURT


The Colliery acted as an agent for the Company in entering into the consignment contract. Therefore, the Colliery supplied the coal in pursuance of the sanction order proposed by the Deputy Coal Commissioner to transport to the appellant-Company in allotted wagons to Banjari Station. Hence, the liability to pay for the freight and demurrage charges lay upon the Company for refusing to accept the delivery. The court observed that the High Court was in error in holding the Company liable to pay the freight and the demurrage for 202 days.

The court further held that as the Company had declined the delivery, the Railway administration could have exercised their power under Section 56 of the Railway Act. The Railway administration was bound to minimize the loss. It was in the position of bailee qua for the Company. After the expiry of a reasonable time for the arrival of goods, the Railway authority should have unloaded the coal from the wagons and put them to use. Hence, the company was liable only for the wharfage. The railway did not act reasonably, as it failed to take action for more than six months. Therefore, the Railway is entitled to demurrage for the detention of the wagons for only one month. A decree for Rs. 2,145/14 was granted to the Railway.

The case analysis has been done by Gracy Singh, a 2nd-year law student from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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Rehabilitation Of Rape Law Victims

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Introduction

Let’s start by discussing what rehabilitation is and how it works. Rehabilitation in the general sense is getting back to the normal life of a victimized person who has done something wrong and has been imprisoned for that, and this process of rehabilitation starts after imprisonment. This process includes more training to get back to normal life and to keep track of their mental health. The path is often paved with so many hours including therapy and education and more. In the legal sense, it means that a criminal needs rehab for the crime to not be repeated in the future again. And the process of rehab doesn’t just include educating and therapy, it is more of the right process or processes to straighten the mind of the convicted person.

What is Rape?

Rape is an unlawful sexual activity; the act of rape is very heinous. This activity is against the will and consent of the person which duly affects the mental health and the physical health of the victim. It may be said that the sexual intercourse of a man with a woman against her will, and it is forcefully. Though the definition of rape has been changed for many years. Rape is a manifestation of a process wherein women are objectified as the property of men. There are many cases in many countries of Rape. The only thought of therapists is to create fear in the minds of the victims and they desire to punish, cause pain and take revenge with them. 

The general age wherein the rape happens more often will be across 14-18 years of age. Sexual intercourse with a person below the prescribed age will be said as statutory rape. Sexual assault or sexual violence will affect a person very badly. 

Who are rape victims?

Generally, the rape victim is the one who has been affected by sexual assault in the form of rape. The activities carried out will be with physical force, violence, and who is incapable of valid consent can be termed as a rape victim. These circumstances will affect the victims very badly.

The consequences of rape to a woman or man can be classified as physical, mental, or emotional. Rape victims are the ones who are faced with sexual assault or violence either way known as rape and this is totally against their wills. There are certain cases, they are raped very badly and which leads to the death of the victim. And, in certain cases, they are raped and this doesn’t lead to the situation of death. Rape victims go through a lot of difficulties.

Consequences of rape:

There are many consequences that any consequences lead to bad situations and decisions in life further, these may be either physically or mentally:

– Unwanted pregnancy: The most immediate of rape may give a rise to chances of pregnancy. Now, it depends upon the age of the victim, for the conceiving of the child. In most rape cases, wherein the women get pregnant they opt to abort the child; it is because of the illegal criminal act done against them.

– Exposure to diseases: They may be exposed to some of the diseases which are transmitted due to sexual intercourse. This would lead to long-term or short-term disease and sometimes it may take life too.

– Damage to the body organs: Rape being forceful intercourse, will appear to damage some of the organs of the body part. The risk is more around the age of teenage girls. During the rape or after the rape they will be torturing or harassing them by beating them up very harshly. This might even end up losing their lives.

– Trauma: The effect of rape is psychologically a trauma. The victims are exposed to some mental and different trauma which may lead to taking any dangerous steps. The effect will be shown whenever they try to socialize with a group of people or especially with men. The effects last longer till the victim’s lifetime. 

– Suicidal tendencies: The most effective thought for a victim would be suicide. Because of the blame, pity, the trauma they n longer have the hope to live their lives and will be in a thought that they might not recover from it anytime sooner.

Rehabilitation of rape victims:

The idea of rehabilitation of rape victims is a very thought-provoking concept. This usually gives victims a better idea of when to start looking for them. The rehab changes everything. It is usually a process that involves long hours of therapy. Therapy is the process to change their thinking. It is to restore a good condition so he or she can effectively operate again in the real world which involves a lot of time and analysis. During the rehab plan, the right decisions should be made so that the process of rehab goes well. 

Rehab for rape victims would be a better idea. Because it gives them another chance to build themselves and face the real world again. This process includes a lot of education, analysis which lasts up to longer hours. They analyze how a victim can be recovered from the trauma. This process of rehab varies from one victim to another. The ultimate aim is to get out the fear, trauma and straighten out the mind of the victim. This process is truly a lifesaver. Rehab processes last longer than usual because it goes in-depth to understand the victim and get that victim to a normal person again. It includes counseling sessions and many more processes which are to make the victim positive and ensure safety. They have suffered a lot, through which they won’t come up easily and tell clearly, the process of rehab involves interactive therapy. By all the processes it is just to ensure that they won’t have any negative thoughts in their mind and which may lead to bad decisions in life.

Conclusion:

Therefore, the process of rehab for rape victims is one of the essential processes these days. It indicates a lot more things, which help them to face the real world again. Hence, this process involves a lot of therapy which involves a lot of hours. It leads to a good path which is by the process of therapy and education given to them. Therefore, Rehabilitation for rape victims plays an important role for the rape victims.

The article has been written by Saba Banu, a 3rd-year law student from Pendekanti Law College Hyderabad.

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EFFECTIVENESS OF REGULATIONS GOVERNING ANTI-COMPETITIVE AGREEMENTS

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The article is written by ADV. ZUBA PARVEZ BUBERE

Introduction:


The Monopolies and Restrictive Trade Practices (MRTP) Act, 1969 was primarily enacted to control the formation of monopolies, prevent economic assemblage of power in the hands of few, and prohibit monopolistic and restrictive trade practices. Over time, the provisions of the Act were seen to have turned obsolete in the era of cut-throat competition between the players in the marketplace. In other terms, the MRTP Act fell short in safeguarding the general consumer interest and ensuring fair competition in the market. Thereafter, the Competition Act, 2002 replaced the MRTP Act, 1969 intending to encourage healthy competition amongst the players besides prohibiting anti-competitive agreements, abuse of dominant position, and regulation of acquisitions, mergers, and amalgamations. The CCI, under the Act, sought to regulate two kinds of agreements viz. anti-competitive agreements between the competitors (also known as “horizontal agreements”) and anti-competitive agreements amongst persons placed at different levels of the production/ supply chain ((also known as “vertical agreements”).


Since its inception, the governing Act along with the functioning of the CCI has been challenged at timely intervals. The major issues as regards the effectiveness of competition laws relate to its ability to tackle the abuse of dominant position by the major players in the market, formation, and operation of cartels, and the potential of penalizing laws to punish the offenders. The absence of effective anti-competitive agreements paves the way for the dominant entities to rule the market thereby forcing other competitors to function just like puppets. These dominant firms interrupt competition and seek to enrich themselves at the cost of general consumer welfare.


Analysis Of Study:


As regards the first issue, several reports indicate that various sectors in the Indian economy have witnessed a reduction in the number of dominant players while the proportion of market share as held by them has increased considerably. For instance, as per the statistics sourced from the Annual Reports of the CCI, in the year 2010, 39.13% of the firms in the Indian market were marked as being in the dominant position while the market cap in the respective industry remained 80.48. The corresponding figure in 2018 was 38.8% while in the year 2020 fell to 16.48%. On the other hand, the market cap in the respective industry remained 84.25 in 2018 and 89.33 in 2020.

Since the CCI came into existence in March 2019, 1008 cases have been marked as “antitrust matters”. While 20% of those matters related to the real estate sector, around 10% were linked to the automobile industry. In 2017-2018, 68 cases were registered as anti-competitive agreements and abuse of dominant position by the major participants in the market. Expressly, the consolidation of powers in the hands of the few can result in serious repercussions to be faced by the entire industry.


This is a grave concern as far as the Internet is concerned since quantification of these risks is a challenging task in itself and some of them are either listed on stock exchanges of countries abroad or are unlisted private entities. An instance that is worth mentioning is the Jio-Facebook merger which can have humongous effects on the Indian economy. Concerning the alliance of Jio with other entities such as Intel and Google, some of the experts are of the view that Jio could emerge as a giant international player rolling several companies into its sphere. While Facebook and Google account for 68% of the digital ad revenue in the Indian scenario, Flipkart and Amazon contributed to around 90% of the business in the E-commerce industry in October 2019. Though such mergers bring in short-term benefits for the consumers, nothing can be commented on as far as the long-term repercussions are concerned.


As regards cartels, they operate to aggrandize themselves by embracing unhealthy competitive plans and policies. Cartels usually enter into four kinds of agreements viz. price-fixing agreements, market-sharing agreements, bid-rigging agreements, and agreements to control the production/ supply in the market. Those competitors who do not form a part of the cartel feel isolated and find it challenging to survive and grow in the market.

Export cartels form an exception i.e. as long as it does not create any anti-competitive effect in the domestic markets and those seeking IP Protection in the form of patent pooling, tie-in agreements, etc. Foreign Direct Investment may acquire domestic firms and entities in the market-leading to a concentration of powers in the hands of a small group transforming them into dominant players in the respective sector. A single instance of such acquisition may not result in any notable impact on the competition. Perhaps, when there are numerous occurrences of a similar nature, it can potentially damage fair and free trade especially if the exporter is a major player in the market. On the other hand, instances of patent cross-licensing schemes have resulted in the formation of cartels. Therefore, the activities of those competitors availing or attempting to avail the benefits of these exceptions are required to be carefully monitored.


As regards the third issue, post a thorough investigation of the registered cases under its banner, the CCI imposed penalties of approximately Rs. 357 crores on the defaulting offenders. Since most of those cases were challenged in appeals before the higher authorities, only as much as approximately 1.4 crores could be realized. To put it another way, most of the time, the offenders attempt to get away with their ill-conduct by taking advantage of the long-drawn litigation process, leaving behind possibly no scope for the CCI to initiate strong measures against them. This, in a manner, could be said to be a failure of the penalizing powers of the Commission.


There is a need to direct efforts towards educating the larger population about competition laws. It is only when a majority of the population is educated, will they turn intolerant towards the unfair business policies and place their opinions and demands forcefully.

Conclusion:


Though the CCI has succeeded in attaining its objectives up to a definite level, it has still failed in addressing certain loopholes and ambiguities. The biggest loophole in the performance of the CCI can undoubtedly be stated as the inability of the said Commission to enforce strong measures against anti-competitive agreements and taxing the defaulting offenders. The CCI derives its authority from the Competition Act, 2002. However, the Act doesn’t confer ample power on the concerned authority to out master the unfair tricks and means adopted by some. For instance, the Act states that the CCI has the liberty to grant some leeway by way of contributing to economic development. This ground can be used by the major players as an opportunity to justify their anti-competitive practices in the name of development.


Some of the most challenging scenarios that the CCI may have to deal with in the future are related to industries such as the telecom, internet, etc. The key distinguishing feature that compliments the two markets is the “network effects”. These sectors may comprise contestants who can establish themselves as being in the dominant position and dictate terms of trade and business in pursuance to the network effects, thereby abusing the said positions and disturbing the smooth flow of activities. The CCI must actively look into the terms of mergers and negotiations contracts. To address issues falling in the said sectors and ensure healthy competition in the respective industries, persons of specialist knowledge and practical experience in the said fields besides possessing the ability to comprehend modern industrial economics will have to be employed.


Anti-competitive practices impose negative consequences on consumers due to their higher prices and restricted supply. Staunch alliances injure consumer interest both in developed as well as developing countries. With the creative minds working towards malicious motives, the CCI needs to pull up its socks and be ready to come to the rescue of innocent consumers.

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Satish Kumar v Surinder Kumar, AIR 1970 SC 833

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The article is written by Sanjana Suman, a student of Amity Law School, Amity University Jharkhand, Ranchi.

Case Number

Appeal (civil) 822 of 1966

Equivalent Citations

1970 AIR 833, 1969 SCR (2) 240

Bench

Sikri, S.M.

Date of Judgement

27/09/1968

Relevant Act/ Section

Indian  Arbitration Act (10 of 1940)

Indian  Registration   Act  (16  of  1908),  Sec 17(1)(b)

Facts of the case and Judgement

All that had to be seen for s. 17(1)(b) of the Registration Act was whether the award in question purports or operates to create, declare, assign, limit, or extinguish any right, title, or interest to or in immovable property, whether vested or contingent, of the value of one hundred rupees and upwards, whether now or in the future.

252 and Sardooll Singh v. Hari Singh I.L.R.

An arbitrator appointed by the appellants and respondent partitioned their immovable property exceeding the value of Rs.100.

The award required registration.

Samarath Bai, [1960] 2 S.C.R.

The arbitrator requested that the award be made a rule of the court under section 14 of the Indian Arbitration Act, 1940. 

Say that the created right cannot be enforced without additional steps. 

If an award has an impact on immovable property, a value of Rs. 100 should be ordered. 

HELD per Full Court on the issue of whether the award was admissible in evidence because it was not registered.)

Chamanlal Girdhat Ghanchi v. Dhayabhai Nathubhai Ghandi A.I.R.

100 its registration does get rid of the disability created by s. 49 of the Registration Act.

816 and Kashinathsa Yamosa Kabadi v. Narsingsa Baskarsa Kabadi, [1961] 3 S.C.R.

After an award is made, no further action on the initial claim that was the subject of the reference can be taken. Prabhu Chand would not receive a title on the reward unless he had registered paperwork, and Sheonarain’s title would remain in the shop.”

Satish Jatindar Rakesh Chand Kaka Surinder Kumar is an Indian businessman. Kumar Kumar (Minor) Smt Nirmal Kanda (Resp. Rani) Reap Lajya Devi Reap Lajya Devi

As a result, in the same controversy, there may be not just one but several registrations for the same title, a circumstance that the Registration Act does not even contemplate.”

According to Section 17(1)(b) of the Registration Act, all that is required is that the award in question purports or operate to create or declare, assign, limit, or extinguish, whether in present or future, any right, title, or interest to or in immovable property worth one hundred rupees or more.

C1/69—17 of the answers given by the Patna Full Bench in Sheo Narain Lal v. Prabhu Chand(1) held that such awards did not need to be registered, but the case was determined on the question of whether the award in question in that instance intended or operated to establish a right, title, or interest worth more than Rs. 100.

Issues before the Court

  • The issue before us is whether an award made under the Act on a private reference needs registration under section 17(1)(b) of the Indian Registration Act if it affects the division of immovable property worth more than Rs. 100.
  • The claim that the award needed registration and that the arbitrators would not submit it until it was registered is also without merit.

The decision of the Court

  • The case was then appealed to the High Court. According to Capoor, J., the award affected a partition and required registration under section 17(1)(b) of the Indian Registration Act, 1908. The learned Judge disagreed with the decision of the Patna High Court’s Full Bench in Seonarain Lal v. Prabhu Chand, preferring to follow the views expressed by the Bombay High Court in Chimanlal Girdhar Ghanchi v. Dahyabhai Nathubhai Gandhi, the Nagpur High Court in M.A. M. Salamullah Khan v.M. Noorullah Khan, and the Rangoon and by the Calcutta High Court in Nani Bela Saha v. Ram Gopal  Saha. 
  • The judgment of the Patna High Court was, however, eventually followed by a Full Bench of the Punjab and Haryana High Court in Sardool Singh v. Hari Singh, ruling, dated November 8, 1966.
  • The Punjab Full Bench added two more reasons: “Even though an award is registered, it remains a waste paper unless it is made a rule of the Court.” As a result, registration has no bearing on its effectiveness or competence.  Section 32 of the I.L.R. 37 Pat.252. The 248 Arbitration Act is specific in that no right can be established on an award as such after the 1940 Arbitration Act comes into force; it is not argued and could not be that the Court has the jurisdiction, under section 16, to remit the award from time to time. If the registration of an award is required before it can be made a rule of the Court under section 17, then every time an award is remitted and a new award is made, the new award must be registered. As a result, in the same controversy, there could be not one but several registrations for the same title, a situation that the Registration Act does not even contemplate.”

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Delhi High Court Issues Practice Directions To Magistrates under Supreme Court Order On Cheque Bouncing Cases

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The exercise instructions dated 21st June 2021 that got here into pressure with instantaneous impact said that the Magistrates having jurisdiction to attempt offenses below the Negotiable Instruments Act, 1881 “shall document cogent and enough reasons” earlier than changing a grievance below sec. 138 of the N.I. Act from precis trial to summons trial in exercising of energy below the second one proviso of sec. 143 of N.I.Act.

“Due care and a warning will be exercised in this regard and the conversion of precise trial to summons trial shall now no longer be in a mechanical manner.” It stated.

Furthermore, it stated: “While engaging in the sort of inquiry below Section 202 Cr.P.C., the proof of witnesses on behalf of the complainant will be authorized to be taken on affidavit. In appropriate cases, the Magistrate might also additionally limit the inquiry to the exam of files for pleasure as to the sufficiency of grounds for proceeding below the stated provision.”

Other instructions issued are as follows:

  • Trial Court shall deal with the provider of summons in a single grievance below Section 138 N.I. Act forming a part of a transaction, as a deemed provider in admiration of all proceedings filed before the equal Court relating to dishonor of cheques issued as a part of the equal transaction.
  • Section 258 of Cr.P.C. has no applicability to proceedings below Section 138 of N.I.Act. The words “as a long way as might also additionally be” in Section 143 are used most effectively in admire of applicability of Sections 262 to 265 of the Code and the precise manner to be observed for trials below the stated Code
  • Trial Courts don’t have any inherent energy to check or take into account the problem of summons on the subject of the grievance filed below Section 138 of N.I. Act. However, the equal shall now no longer affect the energy of the Trial Court below Section 322 of Cr. P.C to revisit the order of difficulty of the system in case it’s far added to the court’s observation appropriate that it lacks jurisdiction to attempt the grievance 
  • The Appellate Courts earlier than which appeals in opposition to the judgments in grievance below Section 138 of N.I. Acts are pending and are directed to take some time to settle the dispute via mediation.

Report by – Manaswa Sharma

IT Rules and Liability of Intermediaries

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The present article is written by Sanjana Suman, a student of Amity Law School, Amity University Jharkhand Ranchi.

Introduction

The Ministry of Electronics and Information Technology recently released a draft of the Information Technology (Intermediary Guidelines) Rules 2018 and solicited feedback. A review of the proposed rules reveals the same issues that have plagued the Information Technology Act of 2000 since its start, namely, excessive delegation to subordinate legislation, vague wording, and difficult-to-implement restrictions.

With respect to any given electronic message, the term “intermediary” has been defined under the Information Technology Act of 2002 (“IT Act”) as any person that receives, stores, or transmits such a message on behalf of another person or offers any service with respect to that message. This is not a complete list, but it does include Internet Service Providers (“ISPs”) as well as any website that hosts user-generated material.

As a result of intermediary responsibility, which is founded on the legal idea of vicarious liability, service providers are held liable for any criminal acts committed by users on their platform. As Rebecca MacKinnon has said, “Intermediary liability means that the intermediary, a service that acts as ‘intermediate’ conduit for the transmission or publication of information, is held liable or legally responsible for everything its users do.”

Development of “intermediary liability” in India

Intermediary regulation is covered by a number of laws and sub-legislations in India. In addition, there has been a slew of instances in India, and the Indian courts have been quick to rule on these problems. 

  • IT ACT (2000)

Only network service providers were initially protected under the IT Act “for any third party information or data made available by him if he proves that the offense or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offense or contravention” As a result, intermediaries had little or no safe harbor protection under the original IT Act.

  • Avnish Bajaj v. State and the Amendment to the IT Act (2008)

For content spread by a third party on its e-commerce platform, the Managing Director (rather than the company Baazee.com) was charged with criminal penalties under the Indian Penal Act and the IT Act. The Managing Director, on the other hand, was exempt from accountability because the corporation was not named as a defendant in either the High Court or the Supreme Court. Furthermore, the Delhi High Court stated that if the content posted bypasses the filters designed to prohibit pornographic content, corporations risk gaining knowledge.

In this case, it was also determined that the breadth of protection provided to intermediaries needed to be expanded, therefore the IT Act was changed in 2008 to incorporate a safe harbour regime under Section 79 of the IT Act, as well as to change the definition of intermediaries (as it reads presently). The modified Section 79 of the IT Act protects internet intermediaries from “any unlawful conduct,” rather than only offences or contraventions, and includes a requirement for due diligence when claiming safe harbour. It is an exemption provision that grants intermediaries conditional immunity as long as they abide by the section’s rules and restrictions.

The Legal Provision 

Section 2 (w) of the Information Technology Act,2000 (IT Act, 2000) defines Intermediaries as – “intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes Telecom service providers, network service providers, internet service providers, web hosting companies, search engines, online payment sites, online auction sites, online marketplaces, and cyber cafes.

The Information Technology (Intermediaries Guidelines) Rules, 2011 

The Government of India published the Intermediary Guidelines after amending the IT Act in 2008, which were mandatory for all intermediaries claiming safe harbor protection. These should be read in accordance with the IT Act, as well as the due diligence requirements for intermediaries set forth in Rule 3:

  1. Rules and regulations, as well as a privacy policy and a user agreement, must be published by intermediaries.
  2. All prohibited acts, such as those that belong to other people, are grossly harmful, harassing, or unlawful, harm minors, infringe on intellectual property rights, violate any law, are deceiving or misleading, contain a virus, or threaten India, will be specified in the rules and regulations, terms and conditions, or user agreement and Users should be informed that any violation of the terms will result in their access being terminated by the intermediary.
  3. Intermediaries must not knowingly host or disseminate information as defined in this sub-rule (2), 
  4. Intermediaries must deactivate such data within 36 hours and save it for 90 days for investigation purposes. 
  5. To assist authorized government agencies, intermediaries are needed.
  6. Intermediaries are required to take all necessary precautions to protect their computer resources. 
  7. Intermediaries must notify the Indian Computer Emergency Response Team (ICERT) about cybersecurity incidents. 
  8. Intermediaries must establish a Grievance Officer and post the details of that officer on their website.

However, several difficulties such as ambiguity in prohibited content and coerced decisions by intermediaries flooded the IT Act and the Intermediary Guidelines. Furthermore, anyone can ask the middlemen to remove the illegal content. These difficulties, however, were essentially settled in the Shreya Singhal judgement.

  • Shreya Singhal v. Union of India (2015)

The Supreme Court recognised the Indian citizen’s right to freedom of speech on the Internet and cyberspace for the first time in the historic Shreya Singhal v UOI decision in 2015. It overturned Section 66A of the Information Technology Act, which imposed harsh penalties for delivering offensive material through computer.

The Court held that “Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary fails to promptly remove or disable access to such material after receiving actual knowledge from a court order or being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed.” Similarly, the 2011 Information Technology “Intermediary Guidelines” Rules are valid if Rule 3 sub-rule (4) is read down in the same way as the judgement.” 

The Court also noted that it would be extremely hard for intermediaries and sites such as Google, Facebook, and others to sift through millions of requests and identify which are valid and which are not.

Conclusion 

The link between the various intermediary liability requirements and rules is extremely hazy. Section 79 offers umbrella protection of immunity (‘safe harbor’) for intermediaries from civil and criminal liability. However, most licenses are contractual, and any breach would result in the Department of Telecommunications terminating the ISP’s license.

The rights, protections, and obligations of intermediaries in India are ever-evolving and dynamic technology and the law, as seen by the statutory provisions and judicial pronouncements above. However, the trend indicates that India is nearing a period of increased intermediate liability. The authoritative law of India on intermediary responsibility is now Section 79 of the IT Act, the Intermediary Guidelines, and the Shreya Singhal judgment. As a result, intermediaries cannot be held accountable unless they possessed accurate information and the appropriate authority issued a court order.

References 

  • https://www.barandbench.com/columns/intermediary-liability-under-the-information-technology-act-time-for-an-amendment
  • https://blog.ipleaders.in/internet-intermediaries-intellectual-property-shoot-messenger/
  • https://sflc.in/sites/default/files/wp-content/uploads/2012/07/eBook-IT-Rules.pdf

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Vishal Jeet vs UOI and Other States and Union Territories

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The present case summary has been written by Vanshika Arora.

Petition Number 

421 of 1989

Equivalent Citation 

(1990) 3 SCC 318

Bench

Hon’ble Justice S. Ratnaval Pandian 

Date of Judgment 

May 5, 1990

Relevant Act 

Constitution of India 

Relevant Articles 

Article 23(1), 35(a)(ii), 39(e) and (f), 32 

Summary of the Petition 

The petitioner, filed a Public Interest Litigation (PIL) before the Supreme Court, against forced prostitution of girls, devadasis, and joints and also requested their rehabilitation. In light of the squalid ‘flesh trade’ prevalent in India, the petitioner highlighted that younger girls, when reaching puberty are forced into prostitution either by their parents or by means of kidnapping. Parents who cannot take responsibility for their girls anymore, due to abject penury, force them into these professions. While brothel keepers who are motivated by profit run intricate racquets of kidnapping. In light of this briefly elaborated situation, the petitioner filed a PIL along with affidavits of 9 girls that have forcefully been part of this unethical practice and seek rehabilitation. The filed PIL seeks issuance of guidelines in the aspect of three matters: 

  1. Directing CBI (Central Bureau of Investigation) to conduct scrutiny in red light areas and police officers under whom these areas function 
  2. To bring all inmates of red light areas and those who are part of flesh trade, under State rehabilitation centers and provide them with medical, healthcare, and other basic facilities. 
  3. To bring children of prostitutes that are found begging, to protective homes, and rescue young girls from flesh trade racquets. 

Ratio Decidendi 

The court considered the matter one of great importance and noted that Article 23 of the constitution guarantees “Right against Exploitation” and prohibits human trafficking in any form. A contravention of this article is punishable. Moreover, Article 35(a)(ii) states that notwithstanding anything in the constitution, Parliament shall have (not the state legislature) the power to make laws for prescribing punishment against anything that is punishable under the constitution. The court also noted that subsections (e) and (f) of Article 39 of the constitution state that the state should direct its policy towards ensuring that children at a tender age are not abused, and youth are protected against exploitation and moral and material abandonment. The court also considered several other legislations that guarantee child protection. Such as the Immoral Traffic Prevention Act, 1956; The Juvenile Justice Act, 1986; Section 366-A, 366-B, 372,373 of The Indian Penal Code, 1860. 

The Final decision of the court  

The court decided that a CBI inquiry through the lengths and widths of the entire country is not needed. This malady can only be eradicated through stringent law enforcement. In light of which the court made the following directions: 

  1. All-State Governments and Governments of UTs should direct law enforcement agencies to take speedy action in eradicating child prostitution. 
  2. State Governments and UTs should set up separate Advisory committees in their respective zones. 

Membership of the Committee: 

Secretary of the Social Welfare Department or Board, Secretary of Law Department, Sociologists, Criminologists, Members of Women’s Organizations, Members of Indian Council of Child Welfare, Members of Indian Council of Social Welfare, Members of Voluntary Social Organisations and Associations. 

  1.  All-State Governments and Governments of UTs should take adequate provisions of rehabilitation homes with medical facilities. 
  2. Union Government to set up a committee of its own in line with these guidelines with the aim of implementation of the national level of care, protection, and rehabilitation. 
  3. All-State Governments and Governments of UTs and Central Government to ensure proper implementation of these guidelines

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