Tag: #legalarticle

“Time is what you lack in any study. Evidence disappears one hour at a time. People and the environment can damage crime scenes. Things are shuffled, relocated, changed, and smeared. Organisms decay. Contaminants and dust are blown by the wind. Memories deteriorate with time. You go further from the problem as you get away from the problem.” (Maureen Johnson)

The aforementioned passage, which is taken from Maureen Johnson’s book “really devious,” may help explain why technological development in the area of criminal investigation is essential. It can assist in situations where a case cannot be resolved for a long time due to a lack of evidence, as well as in accurately and quickly resolving criminal cases. All you need is a promising lead. In this article, we’ll discuss how criminology and the criminal justice system might benefit from scientific development to better answer investigative inquiries. This field is referred to as “forensic criminology.”

INTRODUCTION 

Consider a scene of a crime. Blood on the floor, stuff scattering, and a dead body lying there. A person has been charged with the offense. He also disputes that. Now, several inquiries come up at this point. What might have caused the accused to kill the victim? How did he kill him? Is there any proof that the accused committed the crime? What was his mental state and what happened? At this point, criminology begins to play a role in determining the specifics and causes of the crime. On the other hand, science assists in drawing a connection between the facts and the evidence, delivering accurate, trustworthy, and objective information. Consequently, forensics and criminology are integral to criminal justice.

It is undeniable that society is undergoing significant technological change, and along with these developments, criminals have improved their methods of concealment. Additionally, since everyone has access to smartphones and the internet nowadays, the typical person has a greater understanding of science and technology. Researching many ways to commit a crime without being discovered is simple with the internet. The use of the dark web for illicit activity is even more worrisome because no information is left behind.

The development of technology has lowered the barrier to crime. However, the same hands might also aid in the crime investigation. A tool for better criminal investigation and justice administration, forensic science is made up of a variety of ideas, including biology, sociology, criminal psychology, DNA profiling, physics, chemistry, fluid analysis, handwriting analysis, and computer science.

HOW CRIMINAL INVESTIGATION USES FORENSIC SCIENCE?

The three fundamental principles of individuality, exchange, and progressive change form the foundation of forensic sciences. The principle of individuality states that every object, whether natural or manufactured, has a unique identity that sets it apart from other things and prevents duplication. DNA and fingerprint are two crucial examples of this concept. In a variety of criminal proceedings, fingerprints have served as evidence. 

In State v. Karugope (A.I.R. 1954 Pat. 131), the Patna High Court ruled that the fingerprint expert’s assessment was adequate proof of guilt.

Exchange principle: Edmond Locard established this principle by noting that “contact exchanges traces. It simply suggests that the offender either leaves his traces after a crime has been committed or picks them up. In situations where a weapon is used, it leaves its mark on the victim’s body. If the two parties get into a physical altercation, the perpetrator may leave DNA traces on the victim’s fingernail or hair strands. The relationship between the victim, offender, and evidence is established by forensic science.

Ballistic fingerprinting connects the bullet casings to the weapon used to fire them. Used condom sperm aids in the capture of the rapist. It is possible to match the suspect’s teeth to bite marks on the body. In situations where a weapon wasn’t available, the type of wound can reveal the type of weapon that was used. Blood, footprints, narcotics, and just much any other material found at a crime scene can be used to infer information. Most likely, everything in criminal inquiry talks, not just the deceased.

Principle of progressive change: As implied by its name, this theory holds that everything undergoes progressive change over time. Time affects everyone and everything, including the offender and the evidence. Handle everything that might be proof extremely carefully. Blood samples, semen, hair strands, and fingerprints, for instance, must all be carefully obtained and inspected as quickly as possible to preserve their integrity and produce an accurate report. The sample’s quality must be preserved.

Other general principles of forensic sciences exist in addition to these three, such as the laws of analysis, comparison, and probability. According to these laws, a proper sample must be taken and examined, a sample should be compared to other similar samples, and all occurrences, whether they be certain or uncertain, are probable in nature.

THE FUTURE OF CRIMINAL INVESTIGATION AND FORENSIC SCIENCE

Future developments in forensic methodology have the potential to be extremely beneficial. Even though today’s forensic analysis is not perfect, future years may bring about more advanced methods. The criminal court system will see some significant advancements thanks to DNA analysis. Let’s look at some of the forensic technologies that will be quite useful in the future.

• DNA phenotyping will bring about significant change in the field of forensics. This method enables the creation of a person’s portrait just from a DNA sample. Physical characteristics including skin color, hair color, height, eye color, face shape, and occasionally even weight are determined by genes. Numerous characteristics of a person are stored in their DNA, which experts claim might even reveal a person’s geographic ancestry. However, DNA does not carry certain characteristics of the human body. DNA phenotyping is still being studied, and if its validity is shown, it will represent a significant advancement in criminal investigation.
• Sperm degradation in a used condom: A man’s sperm contains DNA. Therefore, it is possible to determine the time the rape occurred using the DNA contained in a used condom.
• Bacterial signatures: Studies are being done on the bacterial traces that individuals leave behind on many surfaces, including the air we breathe. According to scientific investigations, everyone-specific bacteria live in large numbers in human bodies. These bacterial samples can be extracted from the suspect’s faces and compared to traces discovered at the murder scene.
• Fingerprints: Since a very long time ago, people have been recognized by their fingerprints. However, there have been instances where they have resulted in erroneous convictions, suggesting that they are not perfect. Recent research, however, has revealed that several chemicals, including proteins and fats that are consumed as part of a person’s diet, are secreted by the fingertips. In the future, these objects might also be able to reveal the nutrition of the person whose prints are being studied. However, investigators aren’t currently employing such cutting-edge techniques.

Conclusion 

Based on the discussion above, it can be concluded that DNA will play a significant role in forensic sciences in the future. In many parts of the body, DNA is present. It can be extracted from samples of blood, skin tissue, saliva, semen, nails, hair, and more.

Additionally, DNA evidence is helpful in situations where there are several suspects. In the future, computers and artificial intelligence might be able to determine everything about a suspicious area or person without the need for an eye witness based on location and other personal information, in addition to DNA. Future developments in forensics and artificial intelligence might be able to precisely determine who should be suspected and who shouldn’t.

There will still be many difficulties even though these developments will provide a roadmap for criminal investigations. Only professionals can determine if a technique has been followed correctly or incorrectly since judges lack the necessary depth of scientific understanding. These problems influence the court’s decision to take a conservative stance. Forensic science is a valuable instrument for criminal investigations, but it can only be used to its full potential if both the investigating police and the judges understand and value it as such.

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References:

1. Jus Corpus [Online][Cited: 9 September 2022] https://www.juscorpus.com/the-criminology-of-the-future-how-science-helps-us-to-examine-crimes/．
2. Legal 60 [Online][Cited: 9 September 2022] https://legal60.com/the-criminology-of-the-future-how-science-helps-us-to-investigate-crimes/
3. Legalbites [Online][Cited: 9 September 2022] https://www.legalbites.in/criminology-of-the-future/．

This article is written by Kanika Arora from Delhi Metropolitan Education (Affiliated to GGSIPU).

INTRODUCTION

Water is indispensable to life. Human beings can survive for 3 weeks without food, but only three days without water. Moreover, there may be no food cultivation without water. Conceptually, therefore, the right to life, considered the foremost basic and fundamental of all rights, must include within it a right to water. The right to water evolved from initial references to water in numerous international treaties, including the Convention on the Elimination of All types of Discrimination against Women, 1979, the Convention on the Rights of the kid, 1990, and therefore the Convention on the Rights of Persons with Disabilities, 2008. Ultimately, in 2010, the international organization (“U.N.”) General Assembly adopted resolutions on the “Human Right to Water and Sanitation” and on the “Human Rights and Access to Safe beverage and Sanitation” emphasizing recognition of the “right to water”. We now have a separate right to water. In 2002, the U.N. Committee on Economic, Social, and Cultural Rights (“E.S.C.R”.) adopted General Comment 15 noting that “The right to water is indispensable for leading a life with human dignity”. The Committee also defined the core content of the “right to water” to incorporate “everyone’s right to sufficient, safe, acceptable and physically accessible and affordable water for private and domestic uses”.

BACKGROUND

Historically, Dalits have sought integration and respect within mainstream Hindu caste society which has been denied to them for hundreds of years, in accordance with the dominant development paradigm. On the opposite hand, Adivasis have sought development on their terms outside mainstream Indian society. As a result, Dalit articulation of the “right to water” seeks not only to secure state provisioning of water within the traditional vertical exercise of their rights against the state but also to make sure enforcement of access to it water provision through the horizontal application of the correct in legal code against upper castes that block such access. For Adivasis, however, articulation of the “right to water” is inextricably linked to their rights to land and forest, seen as a part of one indivisible ecosystem.

Apart from the judicial articulation of a generally applicable “right to water”, I also describe the articulation of this right on behalf of two marginalized groups. the primary group includes Dalits or Scheduled Castes that constitute 16% of India’s population, who have historically faced systematic discrimination within mainstream Hindu society supported their caste. Originating in ancient India, and transformed by medieval elites, and later by British colonial rule, the class structure in India was a system of conditions that consigned people in several castes to different hereditary occupations, positions, and ways of life. Dalits or untouchables were placed outside the societal hierarchy and were denied access to common sources like food and water. The other group includes Adivasis or indigenous peoples which includes 8.6% of India’s population, who are historically marginalized because they need to live largely in geographical isolation in hills and forests with distinct cultures outside the society.

The right to life is continuously expanded, which has the proper to possess a clean environment and also the right to health, and after your time court mentioned that it also includes the correct to water. after we analyze various judgments of the Indian court, we will find that they need not only considered the correct to urge water as a fundamental right, but the court has also mentioned that water should be social asset.

Right to water was added to the extended interpretation of the proper to life under article 21 of the Indian constitution within the judgment of the case of Peoples Union for Civil Liberties (PUCL) v. Union of India & Ors. W.P. (Civil) No. 196 / 2001. This judgment created a precedent that seeped all the way down to rock bottom levels of court.

The country of India hosts a large population that further creates a large demand for basic life necessities like water. However, this demand goes with major disappointment for people because of the severe scarcity of water. consistent with the 2017 UNICEF report, India’s two-thirds districts among the 718 districts, were reported to be under-supplied with water, with groundwater becoming scarcer a day

RECENT DEVELOPMENTS

WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974

Water (Prevention and Control of Pollution) Act, 1974 is the primary enacted by the parliament in relevance to the protection and preservation of the environment. The water act came into force to make sure the restoration of the water, where the domestic and industrial effluents pollute water with no precautionary measures. The Constitution of the Central Pollution Board and State Pollution control panel is empowered under the act to perform various functions like establishing the standard, research, and investigation of the bodies creating pollution to the water bodies. The awareness about promoting the cleanliness of water streams, well and rivers is also raised by this Act. And also, one every of the most purpose of building this act was to stop and control the pollution of water.

One of the provisions of this act provides that nobody can establish any industry which discharges sewages or trades effluents into the water bodies without the permission of the state board. But within the case of Province Pollution board II v. Prof. M. V. Nayudu it had been held by Supreme Court that Water (Prevention and Control of Pollution) Act, 1974 doesn’t provide an exemption to the state for exempting the establishment of personal body or polluting industries creating pollution to the water bodies.

PROVISIONS OF ENVIRONMENT (PROTECTION) ACT, 1986

Environment Protection Act has got force on19th of November 1986. The name environment protect act itself provides the most objective of the act as protection of the environment. This act provides power to the Central Government to require appropriate measures so as to shield and improve the environment.

INDIAN EASEMENT ACT, 1882

The Indian Easement Act came into force on the 1st day of July 1882. Under this Act, the word Easement is defined in Section 4. But normally term easement means “right to enjoyment”. The rights of Riparian owners are recognized under this Act. A riparian owner is the one who has his land nearby the river or a stream.

Even after various legislations are passed the river water in India are continuously polluted River Ganga despite being worshiped by almost a billion people of this country is included among the foremost polluted river of the identical, variant liters of chemical waste is disposed of in these waters by the industries including the pollutants like cyanide, zinc, copper, lead, cadmium, and mercury including sewage waters also which is that the biggest pollutant These pollutants are so poisonous that they not only kill fishes instantly but other animals also. When these poisonous pollutants are disposed of in water it reduces the standard of water and makes them useless for drinking.

In the case of M C Mehta vs. State of Orrisa and Ors, a writ petition was filed for shielding the health of thousands of individuals living within town Cuttack and therefore the other areas which were adjacent thereto, which were plagued by the pollution caused by disposition discharged into the river by a municipal committee of Cuttack and SCB Medical Collage Hospital, also the State Pollution Board in its report concluded that the water within the city wasn’t fit human consumption and even bathing, The Apex court ordered to require immediate steps to manage the present situation and a responsible municipal corporation was formulated by the court for effective management of pollutants within the city’s beverage.

The government also because the Boards established under the legislation should attend to those matters not just by providing fines to the individuals polluting water but through imprisonment.

The case of Vikash Bansal vs Delhi pollution control committee marks an exceptional judgment given by the supreme court because, during this case of Haryana Paneer Bhandar, an offender was imprisoned for a period of 1 year with 1 Lakh Rupees fine together with 2.5 lakhs Rupees to tend to the PM relief fund, but what must be noticed during this judgment is that this case isn’t associated with any criminal offense like rape, murder, robbery or assault whereas it had been a case associated with the environment that’s polluting the river of Yamuna.

These types of convictions are seen as very rare and in line with me, the court must make such convictions more frequently so as to safeguard the environment from degrading further.

CONSTITUTIONAL FRAMEWORK

PUBLIC INTEREST LITIGATION

Not only a private can approach through the provisions of the legislations associated with the Environment but also through filing a Public Interest Litigation Now, pollution of water is worried to a bigger public, and any dispute associated with water may be settled through filing a Public Interest Litigation. Public Interest Litigation is filed through Article 32 of the Constitution of India which provides about the proper Constitutional Remedies and thru Article 226 of the Constitution of India which provides about the ability of the court to issue certain writ Public Interest Litigation may be filed through Section 122 of the Code of Criminal Procedure which provides about common nuisance. Public Interest Litigation will be converted into writ and the other way around.

CASE DECISION

Right to induce clean water isn’t an enumerated right under the Constitution of India. This right was brought to light through various judicial pronouncements and has become an integral part of Article 21 of the Constitution of India. And also, in the case of Sachidanand Pandey v. State of West Bengal, the Supreme Court held that the court is guaranteed to bear in mind Article 21 which offers about Right to life and private liberty, and Article 48A which provides the basic duties and Article 51A. (g) which provides about the Directive Principles of State Policy whenever a case associated with environmental problem is brought before such court.

CENTRAL WATER COMMISSION

Central Water Commission was established to perform various functions including the initiation, coordination, and consultation of the authorities within the matter associated with the preservation, control, utilization, and distribution of water resources to the citizens of India. The central water commission is now part of the state of India. It makes sure the utilization of water resources appropriately so as to regulate floods, and droughts, maintain irrigation, and provide potable, etc.

In recent time, thanks to Covid-19, there has been large control on the pollution not only to the water bodies but also control of pollution, noise, pollution, etc. the govt. must take this as a chance to stop any more pollution of the water bodies by bringing various other legislation or simply by improving the provisions of the present legislation. The provisions of current legislation shall be made stricter which creates fear within the minds of individuals from further polluting the environment.

CONCLUSION

Water isn’t a personal asset and is the main essential ingredient for the survival of the people. It’s important to regulate pollution caused to the river water, streams, wells, etc. because India includes a total of only 4% of the world’s H2O, uses 80% of that merely for farming, and using polluted water for farming will adversely affect the health of people. The second most populated country within the world is additionally home to thousands of ethnic and tribal groups which survive on the character or jungle for his or her food and water including the little streams of water from major rivers, the presence of chemical pollutants are incredibly harmful moreover as deadly in some cases. And also, the right to induce clean water isn’t an enumerated right but could be a right enforced under Article 21 of the Constitution of India.

 Hence Right to induce a clean beverages is additionally considered a a fundamental right and no one can deprive of such a right. If this right is empty a person, the one that has been aggrieved of those rights contains a right to approach under different provisions provided under the varied legislations. Different reasonable protection must even be given to major rivers and their connecting tanneries because these pollutants are directly affecting the habitat prospering around these rivers.

This article is written by Ashutosh Banshwar, a student of School of Law, Sharda University.

Introduction

When it comes to the scale of its energy economy, as determined by the total income of energy corporations, India is ranked fifth among all nations. According to a recent report by British Business Energy, the nation also ranks third in terms of investments in and future plans for renewable energy.

A major turning point in the global effort to combat climate change has been India’s statement that it plans to achieve net zero emissions by 2070 and to fulfill 50% of its electricity requirements from renewable sources by the year 2030. India is setting the bar for a novel approach to economic growth that might steer clear of the carbon-intensive strategies many nations have previously taken and serve as a model for other emerging markets.

The term “renewable energy” describes power produced from renewable resources such as the sun, wind, and water. They aid in lowering environmental pollutants and are comparatively clean. 

Currently, India’s installed renewable energy capacity—which includes big hydro—stands at more over 159.95 Giga Watts, or nearly 40% of the nation’s total capacity, having grown 396% in the past 8.5 years (as on 31st March 2022). The potential for renewable energy in India may be increased up to several times greater than it is now. Considering the immense resources at its disposal and the rapidly expanding population, India has been reticent to publicly advocate for the use of renewable energy sources.

Acts, policies, and programs promoting Renewable Energy development in India

The first piece of legislation to address the use of renewable energy sources in the production of electricity was the Electricity Act of 2003. This law made it possible to construct captive wind farms (i.e. independent generation of power for personal uses). Additionally, it developed specialized tools for implementing policy, such as favorable tariffs, renewable purchasing requirements, and tradable renewable energy certificates. The State Power Regulatory Commissions (SERCs) are required by Section 61(h) of the Electricity Act, 2003 to promote grid connection of the electricity produced from renewable resources through tariff rules. The State Commission is required by Section 86(1)(e) of the Electricity Act of 2003 to promote cogeneration, the production of electricity from renewable energy sources, and the timely updating of the National Tariff Policy and Tariff Policy for the best possible utilization of both conventional and non-conventional sources.

The Ministry of Power oversees the application of the Electrical Act and principally exercises administrative control over the growth of the nation’s electricity industry. However, the Ministry of New and Renewable Energy, which serves as the government’s main body for all issues connected to the development of renewable energy, is in charge of overseeing the development and expansion of renewable energy in India.

Even if the Electricity Act does not define renewable energy, there are other laws and regulations that do, both at the federal and state levels. A 2017 regulation known as the Central Electricity Regulatory Commission (Terms and Conditions for Tariff Determination from Renewable Energy Sources) Regulations defines “renewable energy” as grid-quality electricity produced from renewable energy sources. The phrase “renewable energy sources” has also been defined to include small hydro, wind, and solar, including its integration with a combined cycle, biomass, cogeneration of biofuels, urban or municipal waste, and other sources that the Ministry of New and Renewable Energy may deem appropriate. Additionally, by virtue of an official letter dated 8 March 2019, the Ministry of Power has officially classed hydropower project stations as having a capacity of more than 25 MW as a renewable energy source.

The 2005 National Electrical Policy, In particular, emphasizes making the most of the nation’s hydropower potential. Its goals include developing rules for the power sector’s rapid development, ensuring that all areas had access to electricity, and utilizing technology to access these resources. In accordance with Section 3 of the Electricity Act of 2003, this policy was created in the year 2005. It permits favorable pricing for electricity generated using renewable resources. It has achieved its prior goal of generating enough power to guarantee access and raise the minimum annual per-capita availability to 1,000 kWh by 2012. To ensure returns and full recovery during the loan repayment period for the entire useful life, which is equivalent to a Levelized tariff, the Central Electricity Regulatory Commission (CERC) established yearly feed-in-tariffs under the National Tariff Policy for connectivity by grid power from various renewable energy resources. In order to promote grid connectivity, many incentive schemes for renewable energy sources were put in place during the 11th Five Year Plan, which runs from 2007 to 2012.

The proposed National Renewable Energy Act, 2015, whose draft has been made available for public review, aims to grant the Government of India broad authority to advance the renewable energy sector in India. This Act was created in 2015 with the intention of promoting renewable energy sources. This Act aims to promote the use of renewable energy, lessen reliance on fossil fuels, guarantee energy security, and cut back on local and global pollution. It sought to support efforts to combat climate change, foster an environmentally friendly environment, and develop pollution-free energy sources. The usage of renewable energy will lower CO2 and other harmful pollution emissions as well as those from greenhouse gases. The Act also helps to ensure that the goals of expanding the percentage of renewable energy sources at the national and international levels are met.

Electricity is a heavily regulated industry in India. The Central Electricity Regulatory Commission and the State Electricity Regulatory Commissions are established at the federal and state levels of government under the Electricity Act. Disputes between generators and distribution licensees or between distribution licensees and customers may be heard by the commissions, which also have the authority to enact rules and subsidiary laws. Before the Appellate Tribunal for Electricity (APTEL), a specialized body to assess electricity-related disputes, central or state commission rulings may be challenged. The Supreme Court of India will hear appeals of APTEL judgments.

The judiciary in our nation has frequently dealt with concerns involving renewable energy sources. The Supreme Court recently declared in 2015 that all sectors must adopt goals relating to renewable sources of energy or face penalties. This historic Supreme Court decision requires companies with captive power plants to derive a significant share of their energy needs from renewable sources. This decision also gave the state electrical regulators and related organizations the authority to impose sanctions on businesses that disobey the Supreme Court’s directives.

The necessity for research and development initiatives in the area of renewable energy was recognized by the government. A Commission for Additional Sources of Energy (CASE) was created by the government in 1981. The mission of CASE is to advance research and development in the area of renewable energy.

A subsequent creation was the Ministry of New and Renewable Energy. India became the first nation to have a dedicated ministry for the advancement of renewable energy sources.

To encourage farmers to employ solar energy, the Cabinet Committee on Economic Affairs (CCEA) granted financial help up to USD 6.5 billion by 2022.

The second phase of the Atal Jyoti Yojana (AJAY) initiative was launched in 2018 with the goal of providing financial assistance for the installation of more than 3 million solar street lights in certain locations.

In order to encourage large-grid-connected wind-solar PV hybrid systems for the most effective and efficient use of land and transmission infrastructure, the MNRE created the National Wind-Solar Hybrid Policy in 2018.

To encourage local solar cell manufacture, the government imposes the Safeguard Duty (SGD) on solar panels. Thus, these were a few of the most important measures that the Indian government took in an effort to advance, study, and grow the renewable energy industry.

The Electricity (Amendment) Bill, 2020 was proposed by the federal government to make revisions aimed at advancing the renewable energy industry. For example, the establishment of the Electricity Contract Enforcement Authority, which will have the sole authority to decide disputes arising from power purchase agreements, the imposition of penalties on distribution licensees for failing to comply with renewable purchase obligations, and the federal government’s authority to announce a National Renewable Energy Policy and prescribe a minimum renewable purchase obligation.

It is anticipated that this law, the draft National Electricity Policy 2021, and other policies would implement the necessary adjustment to improve energy efficiency in order to satisfy technological improvements and climate change objectives.

Issues and Challenges

In areas pertaining to renewable energy, coordination between the federal and state governments has not been strong. Due to this, there have been problems with land acquisition for central and state projects including renewable energy, as well as uncertainty, delays, and poor management of auctions and transmission links. A widespread issue in India is aggressive rate caps during auctions and retroactive re-negotiations. For international investors, sovereign risk is a source of worry.

Another major worry is late payments from state-owned distribution businesses that are heavily indebted. Financial limitations apply to smaller renewable energy producers. The financial support for renewable energy sources is being hampered by India’s stranded or non-performing assets in the thermal power industry. Transmission networks and balancing capacity are slowly growing throughout the nation.

Recommendations

To effectively exploit the nation’s undiscovered renewable resources, a comprehensive plan on renewable energy is required, including both supply and usage as well as suitable transportation. Tariff limitations have made renewable energy policies problematic. In order to assure the financial feasibility of high-quality projects, the price limitations must be adjusted. Analyzing the industries’ risk assessments and tariff expectations should be done to accomplish this. The government needs to take steps to reduce project-related risks.

The federal government needs to make efforts to make the most of the nation’s bioenergy potential. The manufacture of solar products in the nation has enormous potential. By providing amenities like greater solar tariff caps and by promoting exports, the government may play a crucial part in its expansion. The government should seek to modernize and expand the transmission network while taking into account the connecting requirements of significant hubs for renewable energy.

Solar and wind power equipment should only be subject to one uniform rate of GST. For businesses involved in renewable energy, access to money both domestically and abroad needs to be improved. Due to the current situation’s inefficiency problems, the electricity distribution industry has to be privatized.

Conclusion

The Indian government is aiming to achieve its goal of increasing the country’s proportion of renewable energy. The MNRE is continuously trying to put the policies into effect. Several problems need to be resolved. They can be readily stopped, though, if the right actions are followed. The tariff rates set by foreign investors ought to be reviewed by the government. In order to guarantee effectiveness and quality, the renewable energy sector needs to be competitive and privatized. The manufacture and use of renewable energy have grown quickly throughout the years in the energy industry. Although this sector is not specifically covered by any legislation, it is collectively governed by the current laws. However, in order to make the system effective and prevent more confrontations, it is advised and optimistic that sector-specific laws be developed and passed as soon as possible. In conclusion, India has performed admirably thus far, but there is still potential for growth. If all goes according to plan, India will take the top spot in the world for renewable energy.

References

1. Deepak Sriram Krishnan, “India’s Supreme Court Reinforces Renewable Energy Targets for Industry”, World Resources Institute ( June 13 2020, 08:00 pm) India’s Supreme Court Reinforces Renewable Energy Targets for Industry | World Resources Institute (wri.org)
2. Integrated Energy Policy – Policies – IEARenewable Energy | Make In India
3. Renewable Energy in India – Indian Power Industry Investment (investindia.gov.in)
4. List of Policies and Acts – National Portal for Renewable Purchase Obligation (rpo.gov.in)

This article is written by Devishee Arora, a 4th-year B.COM LLB (Hons.) student at Amity Law School, Noida.

INTRODUCTION

A Migrant is a person who moves from one place to other place for many reasons like better living conditions, work purposes etc… There are two types of migrants: Immigrants and Emigrants. Immigrants are the migrants who move into a new place. Emigrants are persons who leave their own country or nation in order to settle permanently in another country. This process of relocating people from one country to another is called “Emigration”. People emigrate for many reasons like employment purposes, education purposes, livelihood purposes, etc. The most common causes for emigration are economic causes, in search of better employment and a better living environment for themselves and their children they start to emigrate. Recently due to COVID-19 Outbreak, many people are forced to leave their houses for better jobs.  Sometimes political causes like repressions or civil wars can also be the reasons for their emigration and emigration usually is directed towards the most developed countries because the opportunities for emigrants to survive will be high in the emigrant country. For example, according to the U.S, during the Ukraine – Russia war nearly 12 million people left their homes and went to other countries, especially Poland for their survival. And more than 5 million people have immigrated to neighbouring nations, and 7 million people have been internally displaced. Some more examples of emigration: Hurricane Katrina struck New Orleans in 2005. Due to flooding, this hurricane completely destroyed the region. Many locals were forced to leave the region as a result and relocate.

According to the United Nations human rights office of the high commissioner: Currently, an estimated 281 million people, or 3.6% of the world population, reside outside of their place of birth. Many of these migrants experience varied degrees of forced emigration. Emigration is not always carried on for positive purposes or the desire to have better living conditions, it is not the only factor that drives emigration. But sometimes emigration takes place due to uncontrollable factors such as wars, natural disasters and economic crises and these factors force the people to emigrate from one country to another country for their mere survival.

HUMAN RIGHTS VIOLATION 

Emigration is a positive and empowering experience but this is becoming more obvious that due to lack of human rights-based emigration governance at the international and national level causes a violation of the rights of emigrants during their transit at international borders or an emigrant country. Human rights violation of emigrants includes the denial of economic, social, and cultural rights, such as the right to health, housing, or education, as well as the denial of civil and political rights, such as arbitrary arrest, and torture.

The human rights of the emigrants are protected by the office of the High Commissioner for Human Rights (OHCHR). The main objective of OHCHR is to promote, protect and uphold the human rights of all migrants, regardless of their status, and a special emphasis on those emigrants who are at the greater risk of violation of human rights. OHCHR promotes a human rights-based perspective on migration that puts the migrant at the centre of migration policies and governance in order to ensure that migrants are included in all pertinent national action plans and strategies, such as plans for the provision of public housing or national strategies to combat racism and xenophobia.

RIGHTS OF EMIGRANTS

According to International Human Rights law, it is stated that every person has a right to leave his own country and reside in another country and each person has a right to a nationality. Rights vested on the emigrants irrespective of their origin. The right vest upon them is the right to freedom from inhumane treatment. The international human rights law states that no person shall be subjected to inhuman treatment. Human rights watch¹ stated that In Saudi Arabia holding thousands of migrant workers from Ethiopia video footage was released of torture and unlawful killings. Emigrants have the right to freedom of opinion and expression which means that everyone has the right to opinion irrespective of their sex, religion, nationality. This right prohibits any form of discrimination based on a political or jurisdictional basis or any international status of the country. The right to freedom from discrimination is another form of a right vested upon the emigrants. Article 7 of International Human Rights Law states that all are equal before the law and entitled without any discrimination. This means that all individuals should be treated equally. Discrimination is not based on opportunities but discrimination is based on basic necessities like water, shelter, food etc…Right to asylum is another right vested upon all people and they have the right to seek asylum in any country. Right to family is another right vested upon the emigrants that family is the most fundamental basic social institution and every person has the right to marry and start a family. Every human being has a right to favourable social protection. These are the rights of the emigrants and these rights should be enforced by the state in order to protect these rights.  

DUTIES OF THE STATE

The state must give the emigrants the right to work. It is a socio-economic right and the state must give sufficient opportunities so that the individual can earn a decent living for their survival. It is the duty of the state to provide opportunities for emigrants to work and while doing so they can also mingle with the local community. It is the duty of the state to provide them with education. Education is the basic right of every human being. Only by education, the person can realise his other rights. Providing education can protect children from illiteracy, abuse, exploitation and many other acts. The emigrants have also the right to access the basic necessities for ensuring the welfare of the people. The right may extend to the accessibility of the courts in case of any inhumane treatment or if the emigrant is unable to access the basic facilities due to poverty, discrimination etc… It is the duty of the state to treat all people, whether a citizen or a non-citizen. Every individual has the right to have a dignified life and this must be satisfied by the state. 

In India despite several drawbacks of lack of statutory framework or national policy the basic rights are protected for every citizen and non-citizen in the constitution. The protection of life and liberty is vested in Article 21 which ensures the protection of all people and all persons are granted the right to free trial in the case their rights are being violated. The Emigration Act 1983 provides a framework for emigration workers for contractual overseas employment and seeks to safeguard their interests to ensure their welfare.  In the case of State vs Anil Grover² case, it was stated that the emigration act was enacted for the purpose that no citizen can leave the country without obtaining a certificate of emigration clearance and no person can function as a recruiting agent without a valid certificate.

Article 10 of the International Covenant on Civil and Political Rights, 1976 states that all states must treat the people in their territory with respect and dignity. It is the obligation of the state not to treat individuals in inhuman conditions and the state must also take measures to prevent inhumane treatment. Article 7 of the International Covenant on Civil and Political Rights, 1976 prohibits torture and cruel and inhuman treatment. Agencies must also monitor the activities of the state and ensure that the state has given fair and just treatment not discriminating against the individuals who are emigrants. The U.N. International Organisation for Migration (UNIOM) was set up in the year 1951. It works for the humane treatment of migrants in every country. Non-governmental bodies, inter-governmental and total of 173 members of government aim at ensuring the freedom of movement and developmental migration. 

Human Rights Watch (HRW) is a non-governmental organisation that works for the research and protection of human rights. This organisation is mainly to prevent abusive and inhuman behaviour towards migrant workers. Amnesty International (AI) is another non-governmental organisation that works to enforce the rights which are mentioned in the U.N. Declaration of Human Rights. It promotes tranquillity work toward the disarmament of abusive campaigns and maintains hostility. 

CONCLUSION

Right to movement is the fundamental right of every individual. No one can restrict the movement of individuals to another place for better work or employment opportunities. Over 1% of the world’s population is displaced every day. It is very essential to provide these people with good care and to protect them from inhumane treatment. There must be good corporation between international bodies and other agencies. Due to the outbreak of the pandemic suddenly there was a huge drift in migration. Many people relied upon humanitarian relief for their survival. During the outbreak of COVID, many emigrants had very harsh living conditions and they were restricted even the basic human needs medicine, shelter and food. The state must protect the rights of these individuals too. The international organisation may work to bring relief upon the protection of the people but it is up to the states to protect the people.

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References:

1. https://www.hrw.org/news/2020/12/15/saudi-arabia-migrants-held-inhuman-degrading-conditions
2. CRL.M.C. 2087/2010

This article is written by Sree Lekshmi B J, third year law student of Sastra University, Thanjavur.

Introduction

Covids are a gathering of contaminations that can cause infections like the ordinary crisp, outrageous extraordinary respiratory condition (SARS) and the Middle East respiratory issue (MERS). In 2019, another Covid was recognized as the justification for a sickness discharge that started in China.

The contamination is known as outrageous extreme respiratory condition Covid 2 (SARS-CoV-2). The disease it causes is called Covid ailment 2019 (COVID-19). In March 2020, the World Health Organization (WHO) broadcasted the COVID-19 episode as a pandemic.

General prosperity get-togethers, including the U.S. Places for Disease Control and Prevention (CDC) and WHO, are actually looking at the COVID-19 pandemic and posting investigates their locales. These social occasions have also given propositions for thwarting and treating the contamination that causes COVID-19.¹

The overall pandemic that has caused lockdowns in different nations all around the planet has caused aggravation in all highlights of life for an uncertain period. Social isolating has emerged as the most momentous weapon to condense the spread of this uncommonly irresistible contamination in the overall population generally speaking. Regardless, these social eliminating commands have reshaped and changed various endeavors all around the planet.

The Indian authentic scene has furthermore been vexed and genuinely impacted by this pandemic. Again with the social isolating responsibilities and the country again under lockdown orders, regulation workplaces in India and the Indian lawful structure have expected to close their approaches to the general populace. Eventually, considering that a complete conclusion of the Indian value structure is horrendous, the law workplaces have done work-from-home procedures, however, the legitimate directors have embraced development by coordinating hearings through video conferencing.²

The Supreme Court of India on 14.03.2020 expressed that from 16.03.2020 just dire issues will be thought about. The SC has moreover planned that super the lawyers following up with respect to this present circumstance, i.e., either for disputes or presenting oral perspectives or to help, close by one litigant just, will be permitted in the court. The SC has moreover guaranteed all power to require warm screening at all members and to deny entry to individuals found to have high inside heat levels. In addition to this, the Supreme Court vide Suo Moto Writ Petition no. 1 of 2020, has similarly raised the issue of illness of Covid-19 disease in confinement offices. The realization of desperate issues is done through video conferencing by presenting an application called “Vidyo” (informed by Supreme Court vide fliers dated 23.03.2020 and 26.03.2020). Likewise, Supreme Court vide Suo Moto Writ Petition no. 3 of 2020 expanded the Limitation period for all of the cases w.e.f. fifteenth March 2020 till extra arrangements of the Supreme Court. All tries are been expected to manage value in the country.³

Changes to the Indian Legal System

The Indian Judiciary has been overburdened for a seriously significant time frame, and COVID-19 is simply adding to this danger. As of May 27, 2020, there is generally 3.24 crore approaching cases in India’s subordinate courts and around 48.2 lakh impending cases in the High Courts. The Supreme Court, vide its notification dated March 13, 2020, restricted working of the Court to “squeezing matters” so to speak.

High Courts additionally have restricted their working to basic issues. In the customary course, a High Court hears in excess of 400 issues each day. As indicated by data accumulated from Daily Cause Lists of various High Courts, since late March, High Courts in the country over are hearing wherever between 10-100 matters consistently.

Subordinate courts address over 80% of approaching cases. On June 2, the Karnataka High Court extended the finish of all area courts, family courts, work courts, and current chambers in the state till July 6. On April 29, the Punjab and Haryana High Court mentioned that all area and sub-divisional Courts in Punjab, Haryana, and Chandigarh will work “restrictively” from May 1 “till the lockdown/time impediment is in force in the specific locale”. These restrictive measures have provoked an overabundance of impending cases, thusly growing the load on courts.⁴

The pandemic has channelized the ability of under-utilized gadgets and elective work models (like virtual hearings). Customary ways to deal with working have been changed and recognized at a stunning speed and without any problem.

With a very restricted ability to concentrate time, graduate schools had changed to electronic coaching and learning, the Courts had relied upon the Virtual Courts System and regulation workplaces are continuing to work from home giving development to be a lifeline for the Indian genuine scene.

The impact of the pandemic has been essentially tracked down in the Indian courts. To adhere to the social isolating guidelines and to control the spread of the second surge of this overwhelming contamination, the Indian Courts have relied upon Virtual Hearings in Virtual Court Rooms to guarantee that the association of value stays undisturbed. A most recent model that can be referred to here is that of Justice Jasmeet Singh of the Delhi High Court who carried on the virtual hearing beyond 11 pm on Monday, 21st June 2021 to complete the issues recorded before him!

The model similarly suggests that having changed the Indian legitimate scene by taking on development during this marvelous overall crisis, the Indian Legal System has completed and guarded our old-fashioned custom – Justice, at all Costs, Always!⁵

The impact of the pandemic has been altogether tracked down in the Indian courts. To adhere to social isolating norms and to control the spread of the second surge of this overpowering disease, the Indian Courts have again relied upon Virtual Court Rooms to ensure that the association of value stays consistent. It ought to be seen that, the possibility of Virtual Courts is certainly not a unique thought in India. In 2003, the Supreme Court of India in State of Maharashtra v. Prafulla Desai held that recording of confirmation by a Court through video conferencing will be seen ‘as per the procedure spread out by guideline’. From there on out, a couple of subordinate Courts in India have recently illustrated rules in such a manner and have held legitimate methods through video conferencing.²

Without a doubt, even free genuine aide — dependable under the Constitution — is out of reach to an enormous number of regardless of the National Legal Services Authority’s organization that there should be one legitimate organization’s office for a reasonable bundle of towns. The IJR reveals that extensively, there is only a solitary office for 42 towns. In states like UP and Odisha, there is only one for more than 500 and 300 towns independently.

Methodology makers and commitment holders need to orchestrate attempts across police prisons’ lawful chief and authentic manual for recognizing squeezing repairs than can be set missing fundamentally more weight on resources. Illustratively, ensure assortment – has the first call while enlisting, center around resources so genuine organizations are open at the doorway step of the remotest estates and towns: this could mean growing the number of police chowkies in country districts to placing assets into quick skilling up of judges, constables, board lawyers, and jailors who are individuals ready to come in case of an emergency.

The Supreme Court has, again and again, affirmed that permission to value is a significant right. Its affirmation has fumbled and unnecessarily extended. The transport of significant worth value ought to now be seen as on a very basic level significant and become truly in the presence of everyone.⁶

Conclusion

This piece has recently covered a part of the repercussions of COVID-19 on the legitimate calling and there are various locales, for instance, genuine preparation which moreover ought to be tended to on truly significant. The ongoing concedes in the general arrangement of regulations might be exacerbated by the snags COVID-19 will present to the progression of assessments, charging decisions, pre-primer cycles, etc.

Clearly, the Coronavirus is putting down profound roots, and the Judiciary needs to adjust to it. Normal working or rather “new standard” working of courts will take as much time as required. Preferably, it shouldn’t accept unreasonably extended, in the event that Lady Justice will in a little while need to, close by a blindfold, cutting edge and scales, be decorated with a facial covering.⁴

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References:

1. Kohli, Rusy. [Online] https://www.barandbench.com/columns/from-the-bubonic-plague-to-covid-19-impact-on-the-legal-profession-in-india.
2. College, Asian Law. [Online] https://alc.edu.in/blog/changes-in-justice-delivery-system-in-pandemic-virtual-hearings/.
3. Daruwala, Maja. [Online] https://www.hindustantimes.com/india-news/how-covid-pandemic-hit-the-justice-system-101614554343346.html.

This article is written by Cheshta Bhardwaj, a student of Delhi Metropolitan Education (GGSIPU).

INTRODUCTION

In India, the online gaming market has exploded in recent years, raising concerns about its legality and the need for regulation. The legality of numerous games, including Rummy, online poker, and fantasy games like Dream 11, has been in question. Moreover, playing real-money games comes with a lot of psychological and financial risks. Numerous states and courts have made vain attempts to control the gaming industry. Understanding and creating appropriate regulations is crucial to establishing some order in the gaming industry.

Large Indian gaming enterprises now face a hefty financial burden because there is no unified national gambling regulation. One of India’s fastest-growing businesses would get a great boost from the creation of a harmonious national gaming industry with clear actionable guidelines. 

On April 1, 2022, the Online Gambling (Regulation) Bill, 2022 (the “Bill”) was introduced in the Lok Sabha to create an efficient regulatory framework for the online gaming business to stop fraud and abuse. The Bill proposes the establishment of a regulatory body to oversee the online gaming business, acknowledging the impacts of online gaming’s addictive qualities and the sector’s significant national influence.

ASPECTS OF THE ACT

With the help of the Bill, an Online Gaming Commission (referred to as “the Commission”) will be created, and a licensing system will be put in place that would require licenses from the Commission to provide and run gaming enterprises in India. According to the Bill, it is now illegal to sell and run gaming companies without a license. There is also a bond requirement. Anyone found to have participated in gaming on an unlicensed website will also be subject to legal repercussions under the Bill.

The Commission will have the authority to keep an eye on the operation of websites that offer online gaming and to take action to stop illegal online gaming. Additionally, the Commission will create rules and regulations governing the license and permit requirements, authorization for players to use gaming websites, requirements for providing gaming services, terms for player credit facilities, fines or penalties, and any other matter it may deem appropriate.

The Bill’s highlights

Any game played on an electronic device, such as a personal computer, a mobile phone, a tablet, or another device, is considered “online gaming” under the Bill. It is clear that the Bill seeks to regulate all games played on these electronic devices because the term does not distinguish between “game of skill” and “game of chance.”

The bill calls for the establishment of an oversight body called the Online Gaming Commission (OGC), which will have five members appointed by the central government and include at least one expert in each of the fields of law, cyber technology, and law enforcement. The OGC will have the authority to, among other things, supervise the operations of online gaming websites, produce periodic or one-time reports on related subjects, recommend appropriate steps to control and stop illegal online gaming, grant, suspend, and revoke licenses for such websites, and set fees for license applications and renewals of such websites.

Playing online games without a website and a non-transferable, non-assignable license would be prohibited under the proposed legislation. Without the appropriate license, operating an online gaming server or website is punishable by up to three years in prison and a fine. Six years will pass before the license expires.

If the licensee violates any of the license’s terms or Bill’s provisions, the license that is proposed to be issued under the Bill may be suspended or revoked. The Bill does not, however, apply to anyone who offers backend services in India, such as hosting and upkeep for any international gaming website based outside of India.

QUESTIONS ABOUT THE BILL

Although the Bill seeks to regulate online gaming in India through numerous checks and balances, it currently suffers from several drawbacks:

1. The difference between “games of skill” and “games of chance” is absent from the Bill. Furthermore, it is unclear from the Bill if its rules exclusively apply to for-real-money games or also apply to games played for free.
2. Although this Bill intends to be the primary piece of law controlling gaming in India, it will eventually be subject to court review because, according to the Indian Constitution, neither gaming nor gambling are federal topics and may only be regulated by state governments.
3. The conflict between the present licensing system and the state gaming laws of Meghalaya, Nagaland, and Sikkim is not addressed by the Bill.
4. The Know Your Customer (KYC) standards, customer complaint procedures, advertising and marketing regulations, user data protection, responsible gambling rules, and other issues have not been addressed by the bill.

Games of chance versus games of skill

The Constitution’s seventh schedule, List II (state list), section 34, is titled “Betting and Gambling.” the states alone have the authority to enact laws governing “games of chance.” Contrary to “games of chance,” “games of skill” are protected by Article 19 (1) (g) of the constitution.

Games of skill are not considered gambling under the gambling regulations of several states. There are several uncertainties when attempting to distinguish between a “game of chance” and a “game of skill.” In the absence of legislation defining a “game of skill,” courts have occasionally established definitions for the term.

RMDC v. State of Bombay and KR Lakshmanan v. State of Tamil Nadu

The supreme court ruled in RMDC v. State of Bombay and KR Lakshmanan v. State of Tamil Nadu that a game of skill is one in which the element of talent outweighs the element of chance. A game can be categorized as a game of skill or chance depending on the facts and circumstances of each case, the court ruled in Manoranjitham Manamyil Mandram v. State of Tamil Nadu.

The Kerala High Court ruled that playing for stakes or not is not a factor in assessing whether a game is one of skill or chance when it dismissed a notification that sought to outlaw online Rummy when played for money. “Players have the right to support themselves with their talents.”

Online skill-based gaming is legal.

Using their jurisdiction under Entry 26 of List II, the states of Karnataka, Andhra Pradesh, Telangana, Tamil Nadu, and Kerala made changes to outlaw all types of internet gaming, including skill-based games, in their respective states. They cited an increase in cases of youth suicide, gaming addiction, and financial loss.

States are outlawing online gaming for the reasons listed below:

1. Online games are prone to addiction, and if played for money, they can cause users to commit suicide.
2. instances of children committing murder and crimes to make up for losses from online gaming
3. Websites can manipulate online gaming.

Because they violate the basic right to engage in commerce, business, and occupation, these changes have been brought up in court as being unconstitutional.

As a result, the rules outlawing skill-based gaming have all been overturned by the Madras High Court, Kerala High Court, and Karnataka High Court. Although governments have the sole authority to enact laws governing skill-based gambling, courts have cited the following as key justifications: 

1. A complete prohibition on skill gaming is arbitrary, unlawful, and in violation of Article 19 (1). (g).
2. Additionally, both Article 19 (1) (a) and Article 21 mention participating in games and sports of skill.
3. Such a ban is out of proportion to the goal that governments are trying to accomplish.
4. There are no scientific studies or data about the negative effects of real-money gambling supplied by the states to support complete prohibition.
5. The stakes in the game do not affect a player’s ability to use their skills to their advantage and support themselves financially.

India needs to regulate internet gaming

There are no regulatory frameworks in place for India’s online gaming sector. There is uncertainty over tax rates and revenue collection in the lack of any comprehensive legislation. Currently, several states have rules governing online gambling inside their borders, but due to the industry’s rapid expansion, there is a need for federal legislation that would apply to the entire nation. An effective regulatory system would also promote economic growth and other advantages.

The Online Gaming (Regulation) Bill 2022 has been introduced in Parliament to address the issues and guarantee the expansion of the online gaming sector. According to Article 249 of the Constitution, the Center may pass laws on state subjects provided they are in the “national interest.” This legislation aims to establish a central body for regulating and supervising internet gaming in India.

The 2022 ONLINE GAMING (REGULATION) BILL

A private member’s bill titled Online Gaming (Regulation) Bill, 2022 was presented in Lok Sabha.

While preserving the integrity of online gaming, the measure aims to establish a regulated framework for it.

Online gaming is defined as games played on any electronic device in Section 2(e) of the bill. A central government-created “online gaming commission” would be established under the proposed legislation as an oversight body to develop guidelines for online gaming, including licensing requirements and reporting requirements. Playing without a license is a crime that carries a fine. Any license requirement that is broken will result in license revocation.

The Know Your Consumer (KYC) requirement, the grievance redressal system, data protection or privacy, and one of the key reasons for bringing forth such a bill, mental health issues including addiction and depression, are not addressed in the bill.

The current regulations also have a lot of problems. The distinction between “game of chance” and “game of skill” is not mentioned in the definition of online gaming, which is essential given the conflicts that have arisen in the past as a result of this lack of demarcation. Furthermore, real-money gaming needs to be regulated due to its rising popularity and potential for an increase in unlawful transactions, but the bill does not offer any precise guidelines in this regard.

There is a lack of a thorough licensing structure with precise rules. Although the bill represents a big step, it does not effectively address the problems related to online gambling. The bill must be clearer and more open.

CURRENT SCENARIO

Currently, the majority of businesses that offer real money games are supervised by charters given by the All India Gaming Federation (“AIGF”) and the Federation of Indian Fantasy Sports (“FIFS”), two self-regulatory organizations created to oversee online gaming in India. The lack of enabling national legislation is felt deeply even though these charters help to streamline the conduct and governance of online gambling platforms.

CONCLUSION

Since the start of the epidemic, online gaming has grown in popularity and involvement, especially among young people. While it has been good for the economy, there are societal, psychological, and legal ramifications for online gaming in India. The internet gaming sector is in a “grey area” because there aren’t clear distinctions and rules.

For a long time now, courts have dealt with these ambiguities. The country needs a well-regulated gaming industry if it is to fully realize its enormous economic potential. The recently proposed bill does not seem to be sufficient; the only way to guarantee everyone’s safety and privacy in one of India’s fastest-growing businesses is through a thorough legal system.

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References:．

1. India’s Online Gaming Bill: Regressive Regulation – JURIST – Commentary – Legal News & Commentary [Online][Cited: 3 September 2022] https://www.jurist.org/commentary/2022/05/nishka-kapoor-online-gaming-bill-india/．

This article is written by Kanika Arora from Delhi Metropolitan Education (Affiliated to GGSIPU).

INTRODUCTION

According to the IPC, man’s relics are an integral part of the crime. However, these offenses fall under the general exceptions set out in Articles 76 to 106 of the Indian Penal Code, where there is no personal reason and the act is committed under clearly persuasive circumstances. As a result, perpetrators must be held accountable for their actions in court. Waivers are granted if the defense is successfully defended in court.  The insanity defense in a criminal case helps prove that the perpetrator was suffering from a serious mental disorder at the time of the examination. Because of this, the person may not be paying attention to their actions. Non-psychotics may, in certain circumstances¹, attempt to invoke the insanity defense to avoid paying a fine, but this is rare. Although the insanity defense was intended to improve justice, most people use it to avoid fines and other punishments. Such situations have no deterrent and are serious as people become more and more involved in such activities causing problems. 

MEANING OF INSANITY

Insanity is the inability of a person to understand the meaning of his actions or to realize that he is wrong or illegal. This alludes to mental illness, in which a person’s mental faculties are severely impaired and he is unable to comprehend the consequences of his actions. Insanity is difficult to define in a way that meets legal standards. For ordinary people, insanity is usually associated with mental illness or some kind of mental illness. 

According to Black’s Law Dictionary², any mental illness serious enough to deprive a person of legal capacity and exempt them from criminal or civil liability is considered insanity. “Mental illness,” “mental condition,” and “mental disorder” refer to illnesses that require psychiatric or psychological help, while insanity is a legal term. As a result, one can have a mental illness, illness, or disability without being legally considered insane. However, the reverse is also true.

INSANITY AS DEFENCE AND ITS TYPE

The defendant, who is defending himself on the charge of insanity, admits to having committed the crime but claims that his insanity absolves him of responsibility. It’s more of an explanation for what the person did than an apology. A defendant may raise this defense during a criminal trial in court. It has become necessary to determine the psychology of criminals. While criminal law focuses on the suspect’s “state of mind,” it also deals with “men’s rea.” Men’s rea is a legal term that focuses on a person’s mental health. It is necessary to consider not only the physical behavior of the offender but also the emotional state. The mental state of the mentally ill person prevents him from having criminal intentions, 

In the Indian criminal justice system, the ‘insanity defense is a strategy used to acquit criminal suspects. It is based on the idea that the person was suffering from a mental illness and could not understand his actions.

There are two kinds of reasons for him: 

Permanent Insanity: The condition in which a person is permanently insane. Past actions and experiences can indicate that a person is permanently insane and obscure the seriousness of the situation. 

Temporary Insanity: Occasional or temporary loss of consciousness. Examples of temporary insanity include depression, anxiety disorders, schizophrenia, and other temporary mental illnesses. There are two possible consequences of this transient madness: he is “insane and therefore innocent” and “guilty but insane and therefore not a crime”.³

To qualify for an exception under Section 84 of the Indian Penal Code, the suspect must have engaged in an illegal or unlawful act at the time the offense was suspected or he had a mentally ill comprehension and must indicate that when there is suspicion of a crime. No one is allowed to cite mental illness as a valid reason for committing a crime. The suspect’s mental state is so bad that he cannot fully comprehend the nature of the crime.⁴

REPERCUSSIONS OF SANITY DEFENCE

Insanity Defense has been misused time and time again, releasing guilty people under various scenarios of insanity and undermining the effectiveness of the rule of law. Due to the prevalence of misuse, many countries have eliminated this defense including Germany, Argentina, Thailand, and much of the United Kingdom. It is difficult to prove insanity legally and requires concrete evidence, but it is easy to prove insanity medically. It is difficult to meet all the requirements of Section 84 to avoid criminal liability. Therefore, most insanity defense cases end with the defendant being criminally detained and punished. Mental illness defenses are commonly misused because it is difficult to determine whether a person was “healthy or unhealthy” at the time the crime was committed.

CRITICISM

Although rarely used in criminal cases, the defense of insanity remains controversial. The question of whether the defense of insanity is necessary often comes to our minds. Due to evidence of insanity, defendants charged with more gruesome and serious crimes cannot be found guilty of committing such crimes. If the defense alleges insanity, the suspect pleads guilty and demands a plea of ​​not guilty based on his mental state. Criminals sometimes pretend to be insane to avoid punishment. In reality, claiming an insanity defense is a dangerous defense at best. A basic rule of criminal law seems to be at stake. The insanity defense is based on the idea that punitive action is acceptable only if the accused deserves it. As a prerequisite for punishment, the perpetrator of the crime must bear the moral responsibility of being a moral agent. When a person’s mental illness is so severe that he can no longer control his irrational or compulsive behavior, he can no longer act as a moral agent would be unfair. 

Section 84 considers mental illness a cognitive impairment. Other types of mental illness are not admissible in court. Various mental illnesses can affect your ability to work to the point where you lose control of your activities. Many crimes are committed out of anger and emotion. A person can understand what he has done only after he has performed the act. However, his actions were governed by the emotions of the time. His cognitive abilities can be fairly normal.⁵

Although Section 84 seeks to provide appropriate treatment for mentally ill offenders, there are circumstances in which false acquittals or convictions are made. Therefore, broader ideas such as emotions, pre-action states, etc. should be included. The definition of legal insanity has been expanded to include other features of medical insanity. Instead of focusing on criminals, we need to focus on eliminating crime.  On the contrary, in the general interest of society, these criminals should not be released, given proper mental health evaluations to avoid false acquittals or convictions, and placed in psychiatric facilities. In all these situations, a psychiatrist should be consulted and an individual’s fate should not be left to the discretion of a single judge. Judges may be required by law to make certain decisions. He should get a medical opinion.

LANDMARK CASE LAWS

Ashirudeen Ahmed v. The King⁶ was intended to create a new test. It has been determined that to be eligible for protection under Section 84 of the IPC, 

1. a defendant must produce evidence of one of the following: 
2.  did not know that the act was illegal; 
3.  did not know that the act was illegal; 

Dayabhai ChhaganBhai Thakkar v State of Gujarat⁷ found that consideration of the defendant’s mental state depends on the period during which the crime was committed. If the suspect was in a  state of mind eligible for protection under Section 84 of the  IPC, only the events before, during, and after the crime can be used to make that determination.

The Supreme Court has indicated which diseases are covered by this defense and which are not included in her Bapu Gajraj Singh v State of Rajasthan⁸. By law, this defense does not apply to bizarre, selfish, or impatient behavior or illnesses that impair the intellect and affect emotions and willpower. Also, it is not enough for the defendant to experience occasional insanity or epileptic seizures but otherwise behave normally. 

In Hari Singh Gond v. State of Madhya Pradesh⁹ case, the Supreme Court ruled that Section 84 of the IPC is the legal standard of accountability in cases of suspected mental illness. Courts, on the other hand, have largely associated the phrase with insanity. But the definition of “madness” is vague. It is a term used to describe varying degrees of mental illness severity. Therefore, people with mental illness are not always exempt from criminal responsibility. A distinction must be made between medical insanity and legal insanity. Medical insanity is not a matter of court. It’s legal madness. 

In Surendra Mishra v. State of Jharkhand¹⁰, the Supreme Court held that “legal insanity,” not “medical insanity,” must be proven to acquit a suspect of criminal liability under section 84 of the IPC. 

CONCLUSION

The section on insanity deals with all forms of insanity, such as “temporary or permanent,” “natural or consequential,” and “caused by disease or birth,” and treats the suspect as the sole criterion for establishing criminal liability. completely dependent on the behavior of the person. As it is difficult to determine whether someone is mentally unstable at the time of a crime, it is also difficult to determine their mental health status. Also, defending oneself is quite a challenge for an insane person. In addition, rational individuals use this defense to avoid punishment. This state makes it difficult for the law to achieve its main purpose, turning it into a loophole. The fact that a court must determine a person’s truthfulness in itself a very difficult situation makes this rule an additional loophole.  Only legitimate entities should be allowed to use insanity defenses. Ultimately it is left to the discretion of the courts, but laws made in the public interest must be applied fairly. It is reasonable to assume that the laws on insanity no longer serve their original purpose and is being used by criminals as a defense against law enforcement. Indian courts have often sought a more progressive approach to enforcing the concept of “mental insanity” in criminal law in the light of advances in medicine, and psychiatry in particular.

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References:

1. Parthasarathy Ramamurthy & Vijay Chatoth, How does India decides Insanity Plies? A review of the High Court judgements in the past decades, https://journals.sagepub.com/doi/abs/10.4103/IJPSYM.IJPSYM_373_18 (Visited on May 29, 2021).
2. Black’s Law Dictionary, 8th Ed., p.810.
3. Russell Covey, “Temporary Insanity: The Strange Life and Times of the perfect defense”, Available at: https://www.bu.edu/law/journals-archive/bulr/documents/covey.pdf (Visited on May 28, 2021).
4. Manas Shrivastava & Adatsa Hota, “Privacy and Legal Rights of People with Mental Illness”, available at: https://www.ijlmh.com/wp-content/uploads/Privacy-and-Legal-Rights-of-People-with-Mental-Illness.pdf (Visited on May 30, 2021).
5. Ashiruddin Ahmed v The King, 1949 CriLJ 255.
6. Dayabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563.
7. Bapu Gajraj Singh v. State of Rajasthan (2007) 3 SCC Cri.509.
8. Hari Singh Gond v. State of Madhya Pradesh, (2008) 16 SCC 109
9. Surendra Mishra v State of Jharkhand, AIR 2011 SC 627

This article is written by Jay Kumar Gupta, a second-year BBA LL.B.(Hons.) student at the School of Law, Narsee Monjee Institute of Management Studies, Bangalore.

The resolution plan is created for the firm based on the advice and recommendations of the committee of creditors members to maximize the effectiveness of the corporate insolvency resolution process. According to this Code, any financial or operational creditor may initiate the corporate insolvency process against the corporate debtor on behalf of a company registered under the Companies Act of 1956, such as Limited Liability Partnerships, Partnership firms, and Individuals, or under the Insolvency and Bankruptcy Code. This may only be started if the corporate debtor has fallen behind on debt repayment.

The committee of creditors plays a vital role in the insolvency process. This committee of creditors is regarded as a higher-level decision-making body and oversees the Corporate Insolvency Resolution Process. A committee of creditors is established under regulation 21 of the Code to carry out the duties of the interim resolution professional and solicit claims from all creditors^. The committee of creditors should be created no later than 14 days after the public notification and after the claim has been confirmed.

ROLE OF COC

• The committee of creditors must include every financial creditor as a code requirement. It also lists the financial and operational creditors separately per the Code’s rules. 
• The committee of creditors has several obligations and duties to fulfill by the Corporate Insolvency Resolution Process outlined in the law. The following are some critical duties:
• All significant decisions are made after approval from the committee of creditors’ creditors.
• The decision to adopt the resolution plan and restore the corporate debtor is up to the creditors’ committee.
• They can elect to replace the insolvency professional with the interim resolution professional or even decide to use the latter as the resolution professional.
• They have frequent meetings where the procedures for the specialists involved in the interim resolution, who finally decide the destiny of the corporate debtor, are addressed.
• The respected committee of creditors operates by the administrative choices made by the resolution specialist.

POWERS OF THE CREDITORS’ COMMITTEE

A committee of creditors serves as an authoritative body and is heavily involved in decision-making. It also controls the processes, activities, and roles of the creditors. According to the rules of the Code, they are granted the following authority:

• The committee of creditors has the authority to decide whether the corporate debtor will operate normally and can make crucial decisions in the company’s favor.
• When there is a suspicion of wrongdoing, they can go to the adjudicating body, the national business law tribunal.
• They can apply to the adjudicating body to switch the interim resolution professional if necessary.
• They may decide to move forward with liquidating the corporate debtor even without any approval on any resolution plan. 

NCLT AND ITS JURISDICTION

The National Company Law Tribunal (NCLT) was established as a quasi-judicial body to settle conflicts in Indian corporations. It is the Company Law Board’s replacement. It is controlled by the laws that the central government has established. Cases about civil court have been transferred to the NCLT, a special court.

The Board for Industrial and Financial Reconstruction (BIFR), The Appellate Authority for Industrial and Financial Reconstruction (AAIFR), and the powers relating to winding up or restructuring and other provisions vested in High Courts are consolidated under the National Company Law Tribunal (NCLT). As a result, all governing authority over Indian-registered corporations would be consolidated under the National Company Law Tribunal. The Company Law Board established by the Companies Act of 1956 has since been abolished with the creation of the NCLT and NCLAT.

The main issue that emerges from all of this confusion is whether Tribunals are permitted to interfere with the CoC’s operations and reverse its judgments about resolution plans. If the voluntary arrangement unduly prejudices the interests of creditors or there has been a severe irregularity in connection with the applicable qualifying decision procedure, remedies are provided by the UK Insolvency Act, 1986. The Adjudicating Authority has, in several instances, expanded the scope of its power under Section 31 in examining resolution plans and, in a sense, provided remedies for creditors whose interests have been harmed, despite the Insolvency and Bankruptcy Code, 2016, lacking any specific provisions, where this issue can be dealt with, the case laws, the cases. 

Shrawan Kumar Agrawal Consortium Vs. Rituraj Steel Private Limited in Company Appeal

• Facts and issues:

The CoC approved the resolution applicant in Company Appeal (AT) (Ins.) No. 1490 of 2019 is the AppAppellantnd the Committee of Creditors has adopted the Resolution Plan with 84.70% of the voting shares. The AppAppellantaims that following the CoC’s acceptance of the resolution plan, the RP submitted the plan to the Adjudicating Authority for approval by Section 31 of the Code. The other two bids (the failed bidders) contested said application before the adjudicating authority. The Resolution Plan is challenged before the NCLT.

• Judgment: 

It is held that the Adjudicating Authority cannot interfere with the commercial judgment of CoC in light of the facts mentioned above. The instruction to rebid to maximize the corporate debtor’s value also amounts to legal interference with the CoC’s business choice. The NCLAT further ruled that the prospective resolution applicant has a right to full disclosure of the corporate debtor but that the Appellants were not given this opportunity. As a result, the entire process was biased in favor of the bidder, which is also not a basis for the adjudicating authority to conduct a judicial review on this basis. 

Additionally, the NCLAT ruled that the judicial review of the Resolution Plan is based on an equitable perception and that the AA is not permitted to contest the CoC’s commercial judgment or engage in quantitative analysis. Additionally, the NCLAT ruled that the Resolution Plan’s Evaluation Matrix also fits under the CoC’s definition of commercial wisdom, which is non-justiciable.

In the case of Maharashtra Seamless Limited (Supra), the Honorable Supreme Court restricted the NCLTs and NCLAT’s ability to intervene. While Section 31 of the Code, when read with Section 30(2), limits the NCLT’s latitude. Similarly, Section 61(3) of the Code limits NCLAT discretion. Notably, the issues or grounds—whether under Section 30(2) or Section 61(3) of the I&B Code—are about determining whether the CoC’s “approved” resolution plan is still valid, not about accepting the resolution plan that the CoC has disapproved or determined to have rejected. It follows that the limited judicial review that is permitted must fall within the parameters of Sections 30(2) and 61(3) of the Code, respectively, and cannot under any circumstances infringe upon a business decision made by the majority of the Committee of Creditors. 

In other words, when the approved resolution plan passes muster under Section 31 read with Section 30(2) of the Code, and there is no violation of any provision of law currently in effect, the court would rely on the collective wisdom of the CoC to determine whether or not the plan makes economic sense. If the NCLT substituted its opinion about the resolution plan’s economic soundness, that would not be correct. Therefore, it would not be appropriate for NCLT and NCLAT to influence CoC’s business judgment. Additionally, the NCLT and NCLAT’s investigation of the authorized resolution plan must stay within Sections 31 and 61 and if it is not in its preview then the NCLT can take decisions regarding the issue. Where if the Resolution plan has not stayed within the section, then the NCLT has the authority to look into the problem within its jurisdiction.

K Sashidhar v. Indian Overseas Bank and others

The Hon’ble Supreme Court ruled that the National Company Law Tribunal lacks the authority and jurisdiction to assess the Committee of Creditors (CoC) decision regarding the legitimacy of the dissenting financial creditors’ rejection of the resolution plan. The Adjudicating Authority applies a judicial mind at this point to the resolution plan that has been provided, and after being satisfied that it satisfies (or does not satisfy) the standards outlined in Section 30, it has the option of either approving or rejecting the plan. An appeal from a decision approving such a plan may only be made on the few grounds specified in Section 61 (3). The Adjudicating Authority is required by Section 33(1) of the I&B Code to begin the liquidation procedure after receiving a settlement plan that has been “rejected.” The legislature has not granted the Adjudicating Ability the “ authority or jurisdiction to review or assess” the CoC’s commercial decision, much less to consider whether the dissenting financial creditors’ rejection of the resolution plan was justified.

Rajputana Properties Pvt. Ltd. v. UltraTech Cement Ltd.

The Tribunal observed that Rajputana Properties Private Limited had not balanced the interests of stakeholders, such as operational creditors, and had made distinctions between certain financial creditors who are in an equal position. Clearly, the CoC did not use its best judgment in approving the proposal and acted in a discriminatory manner. The NCLAT ruled that Rajputana Properties Private Limited’s proposal was discriminatory and violated the Code’s design. It also ruled that the resolution plan might violate the Code’s requirements if it is proven biased against any financial or operational creditors.

The Adjudicating Authority ruled that just because a discriminatory plan was presented to the CoC and received their approval, it does not automatically follow that the Adjudicating Authority should also approve it because doing so would go against the fundamental goals of maximizing the corporate debtor’s assets on the one hand and balancing the interests of all stakeholders on the other.

The Tribunal’s two main concerns were: 

• Did CoC treat qualified resolution applicants differently while evaluating Rajputana Properties Private Limited’s resolution plan? 
• Is Rajputana Properties Private Limited’s proposed resolution plan discriminatory?

The Tribunal looked at the financial details of the plans to prove that the CoC had unfairly treated the resolution applicants. This was proven by the fact that the improved proposal made by Ultratech Cement Limited and its request for negotiation were not even remotely taken into account and the Resolution plan has been sent for review. The Tribunal also emphasized that both the RP and the CoC have a responsibility to maximize value within the time frame required by the Code and noted that the CoC’s goal in identify a resolution applicant who can offer the highest amount in order to protect the interests of all parties involved with the corporate debtor is lacking.

Scope and Extent of Power Vested on the Adjudicating Authority

In Bhaskara Agro Agencies v. Super Agri Seeds, the NCLAT held that the Adjudicating Authority could not revisit the decision of the CoC to determine the viability and feasibility of a resolution plan because the Adjudicating Authority cannot approve a plan unless approved by the necessary majority of the CoC. Likewise, in Darshak Enterprise Pvt. Ltd. v. Chhaparia Industries Pvt. Ltd., the NCLAT held that in the absence of any It neglected to mention, however, that “satisfaction” is one of the prerequisites for the Adjudicating Authority’s acceptance of a plan. This suggests that for the Adjudicating Authority to accept a resolution plan, it must be “satisfied” that the CoC’s authorized resolution plan complies with Section 30. (2). 

In Arcelor Mittal India Private Limited v. Satish Kumar Gupta, the Hon. Supreme Court utilized this concept by examining specific passages from the resolution plan to determine the applicant’s eligibility. Following its deliberations on the scope of the Adjudicating Authority’s jurisdiction under Section 31’s provisions, the Apex Court issued the following observations:

After the CoC has approved a plan, it must be submitted to the Adjudicating Authority, which applies a judicial mind after determining whether the plan complies with (or does not comply with) the requirements listed in Section 30. At that point, the Adjudicating Authority may either approve or reject the plan. 

After hearing arguments from both the resolution applicant and the CoC, the adjudicating authority, acting quasi-judicially, might decide if the resolution plan breaches any legal restrictions, including Section 29A of the Code.

The NCLT, Mumbai Bench interpreted the phrase “if the adjudicating authority is satisfied….” under Section 31 in Pratik Ramesh Chirana v. Trinity Auto Components Ltd., noting that “satisfaction” must be objective, subjective, or both and that in order to form an opinion, careful examination of a resolution plan is necessary. Objective Satisfaction: The Preamble’s declaration of the Code’s purpose for being enacted serves as the focal point of objective satisfaction. Subjective satisfaction is based on a logical analysis of the provided financial facts, and a systematic examination of the financial statement is anticipated before agreeing to the CoC’s approval. 

Again, it was noted in the case of J.R. Agro Industries P Limited v. Swadisht Oils Pvt Ltd. that the resolution plan’s benefits and drawbacks should be considered, and if the Tribunal approves the plan, it should express its pleasure in writing in the judgment.

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Citations:

1. Company Appeal (AT) (Insolvency) No. 1490 of 2019
2. Civil Appeal no. 4242 of 2019
3. Civil Appeal No. 10971 of 2018
4. (2018) ibclaw.in 100 SC
5. 2018 SCC OnLine NCLAT 340
6. Company Appeal (AT) (Insolvency.) No. 327 of 2017
7. Civil Appeal Nos. 9402 – 9405 /2018
8. CP No. 1032, MB, NCLT
9. (2018) ibclaw.in 142 NCLAT

This article is written by Inian R, a 4th Year BA LLB (Hons.) student, School of Law, Christ (Deemed to be) University, Bangalore.

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INTRODUCTION:

Bar and Bench are two different elements with a common objective of administering justice in society. Bar, the term finds its origin in England, was used to differentiate a group of lawyers from a group of court officers. It is a group of lawyers enrolled with the state bar council who have permission to practice the profession in court. In simple terms, Bar is a place where lawyers take their place in a courtroom. The Bench is a place where judges take their seats in the courtroom. It is applied to differentiate between judges and attorneys.

BAR:

It is an association of lawyers established with the meaning to promote professional ability, enforcement of standards to ethical conduct, the encouragement of the spirit of public service among the members who practice the legal profession. In India, Bar Council was established as a statutory body under the Advocates Act,1961 aiming to regulate legal education and the legal profession. Its members are the lawyers from India and prescribe the qualifications, duties, etiquette, discipline, and conduct of lawyers.

BENCH:

A place where justice is administered by either judge or judges of the court. Bench could be in court or tribunal. The bench where the judge sits should showcase the position’s respect and dignity.

RELATIONSHIP BETWEEN BAR AND BENCH:

Bar provides the foundation for the stability towards the independence of the judiciary. Bench reflects its action carefully as it is a senior figure to lower rank judicial officers who learn from it. Bar and Bench are two sides of the judiciary that works together to deliver justice in society and ensure no delay in justice due to adjournments of hearing. An advocate who outraged the court by removing the foundation of the court, such an act of an advocate only results in dishonouring the system for justice administration. An advocate must respect the honour and dignity of the Bench. A judge must perform his duties fairly, non-bias, are held liable for their judgments in the court of law. In L.M. Das v. Advocate General Orrisa¹ believed that advocates play an important role in the practice of achieving justice. In another case of the Madras High court, it was held that to administer justice it is essential to have Bar.²

The relationship between bar and bench must not act as a hindrance to the administration of justice, in the case of P.D. Gupta v. Ram Murthi and others³, Shri Krishna Das had died leaving immovable property that led to disputes. Among all those who claimed the property, there was a woman named Vidyawati. The lawyer of Vidyawati purchased the property and later on sold it to a third party. A complaint was made against the lawyer in Delhi Bar Council as the lawyer was enrolled in Delhi. Court held that any complaint made before the disciplinary committee must be resolved within a year and the Bar Council of India later enquired into the case and resultantly expelled him for a year. Before practicing any other right given to Bar by law the advocate practice the Right to be heard in courts to perform its role play in case.⁴

Roles played by Bar and Bench go hand in hand. The profession of Bar and Bench is the ultimate result of legal education. Those who belong to Bench are those who used to be part of the bar at one time. The mutual agreement of Bar and Bench helps in the administration of justice in society.

HOW ‘BENCH’ CAN STRENGTHEN RELATIONS WITH ‘BAR’?

The judicial system of state must be:

1. The judge must hear both the parties before deciding the case. Enough opportunity must be given to both sides to represent their case.
2. Judge shall not be impartial while giving his judgment.
3. Judges shall interfere in proceedings to keep a check of relevancy of facts, receiving clarification on arguments.  
4. Judges must interpret the laws, acts, orders, and rules, that are in question to remove the inconsistency of provisions.
5. Cases must not be adjourned for a longer duration of time and must have sufficient reason for any adjournment.
6. Disposition of case should be done at the earliest if possible.
7. Maintaining the independence of the judiciary.
8. The meetings must be held among judges and advocates presenting the case so that the difficulty faced can be resolved.
9. The changes in the legal world must be known by the judge.

HOW ‘BAR’ CAN STRENGTHEN RELATIONS WITH ‘BENCH’?

1. Respect must be shown towards the courts and judges.
2. Steps must be taken by advocates to ensure the avoidance of unfair practices by their clients.
3. Advocates must not influence the judgments of courts.
4. Advocates shall present the case with a clear mention of the laws involved and relevant case laws.
5. Advocates must present facts before the court, not those which molded to be shown as truth.
6. Advocate must not present a case before the judge to who he is personally related.
7. Advocate must not be involved in any case based on their financial interest.
8. Advocate shall not represent any case that may have a personal influence.

CONTEMPT OF COURT:

Supreme Court bench believed the cordial relations between bar and bench are a necessity so that the process of delivering justice in society could run smoothly. Lack of good relationship between bar and bench leads to slowing the process of administering justice and justice delayed is justice denied. The process in which justice is administered affects both bar and bench equally. The key to the stability of the relationship between bar and bench is respect towards each other. Both must support each other during difficulty. Being at bar is a prior step to becoming a judge. Every judge was once a lawyer.  They both are the product of the same legal system just superiority varies. Sometimes, due to the severity of the case or facts, issues the conversation may turn into a heated and harsh debate.

The harsh approach by lawyers sometimes may lead to harm the very foundation that laid justice. It’s like disrespecting the system itself. An advocate must keep his/her personal opinion regarding anything to himself/herself and must act within the boundaries provided by law. Being at a higher position doesn’t give them the right to degrade the lower-class judicial officers or the members of the bar. An act of disrespecting the conduct either by a judge or by lawyer amounts to contempt of court. For instance, the use of language that implicates insult against a judge or conceives him/her with his removal and transferring to another area challenging the authority of the judge and defaming him/her in any manner is a punishable offense under the act and must be held liable under the appropriate section.

Contempt of court is governed under the Contempt of Court Act,1971 aiming at types of contempt of court and punishment for the act of contempt of court. In the case of Supreme Court Bar Association v. Union of India, the court punished the lawyer by suspending his license to practice the profession for a specified period. Civil Contempt as defined under the act states wilful disobedience of any court order or decree or judgment. Criminal Contempt as defined under the act, states the publication of any material defaming the conduct of courts or judges, or any obstruction in the administration of justice.

Rachita Taneja⁵ was a cartoonist who was accused of posting objectionable cartoons of the Supreme Court. It was held that if in the eyes of the accused his action was of fair criticism that still does not mean they have the authority to contempt the court. Prashant Bhushan⁶ the senior advocate published two tweets claiming the denial of fundamental rights to citizens by keeping Supreme Court in lockdown and another tweet states that Supreme Court destructed the functioning of democracy. This too was met with heavy criticism.

CONCLUSION:

The relationship between Bar and the bench hasn’t developed fully since the introduction of democracy in Indian society. They both have mutual responsibility toward society to administer justice fairly. There must be a system of adjustment between both the elements of justice. Both the elements must function together to enhance their relationship in a better way. Both must uphold the basics of a free and independent judiciary. They must ensure the absence of impartiality, rule of law must be present to guarantee the independence of the judiciary from the state’s control.

Nowadays, the problem is that every day 5 to 6 letters were filed for adjourning of hearings on the ground of personal difficulty, this frequent adjournment is a matter of concern for both Bar and Bench. Lawyers must come thoroughly prepared for the presentation of the case so that there would no delay in process of justice delivery. Similarly, Judges must ensure to take much of the information so that there must be no hurdles in process of justice delivery. To attain justice in society both parties must play their part efficiently and cautiously. The bar must always be independent, responsible, and potent, to perform its function effectively so that the independence of the judiciary is maintained. If there must exist good relations between bar and bench, the high expense at the cost can be very much reduced.

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CITATIONS:

1 1957 AIR 250.

² 1966 2 MLJ 219.

³ 1998 AIR SC 283.

⁴ 1943 AIR Lahore 14.

⁵ 2020 SCC OnLine SC 1042.

⁶ 2020 SCC OnLine SC 588.

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