Tag: #legalblogs

This article has been written by Nashrah Fatma, a third-year law student at the Faculty of Law, Jamia Millia Islamia.
This article aims to discuss the various aspects of victim restoration under Indian law.

1.	INTRODUCTION
2.	ORIGIN AND DEVELOPMENT OF VICTIMOLOGY IN INDIA
3.	WHO IS A VICTIM?
4.	COMPENSATION TO VICTIMS
5.	VICTIM RIGHTS AND VICTIMOLOGY IN INDIA
6.	RIGHT OF PRIVACY OF RAPE VICTIMS
7.	CONCLUSION

INTRODUCTION

Crime affects a large number of people. It is a violation of interpersonal relationships. The criminals or perpetrators are punished for their criminal acts but the plight of the sufferers or victims of the crime cannot be ignored. Victimization refers to any form of pain endured by the victim of a crime experienced by a victim of an assault. When a victim reports a crime, law enforcement acts, and the victim’s journey through the criminal justice system begins. The trauma may worsen due to all these procedures in the criminal justice system, and re-victimization may also play a role. Victimology is the study of victimization, which includes a scientific analysis of the connection between the victim’s physical and psychological distress and the crime.

Benjamin Mendelsohn, a criminologist, is credited with being the first to use the term “victimology”. Between the 1940s and 1950s, he and his colleague Hans von Hentig examined victimology with a focus on what types of behaviours or qualities the victim exhibited that drew the attention of the offender and resulted in the victimization. They are regarded as the “Father of Victimology Study.”

Von Henting examined homicide victims and found that they were more likely to be of the “depressive type”, who were easy prey for criminals. Following this approach, another victimologist postulated that “many victims precipitate homicide was in reality caused by the unconscious inclinations of the victims to commit suicide”.

The criminal justice system has largely ignored the victims of crime, despite the fact that they frequently get support and help from their families, tribe, or community. Only recently have criminal law jurisdictions come to the realization that victims must be treated with empathy and that their basic rights and dignity must be safeguarded.

The scientific study of victimization, including the interactions between victims and offenders, the criminal justice system, the police, courts, correctional personnel, and victims, can be roughly referred to as victimology. However, the study of victimology is not just defined by these relations but also by other forms of human rights violations that are not necessarily crimes.

ORIGIN AND DEVELOPMENT OF VICTIMOLOGY IN INDIA

The goal of the criminal justice system in India during the early Vedic era was not only to punish offenders but also to make amends for the victims. Throughout the Mughal and British periods of Indian history, the focus was more on punishing perpetrators than providing victims with compensation. The only things the criminal justice system cared about were guiding offenders and attempting to change them. However, since the 1980s, and mainly as a result of legal action, the protection of victims has garnered more attention.[1]

WHO IS A VICTIM?

The victim as defined by Section 2(wa) of the Code of Criminal Procedure is as follows: ‘Victim’ refers to a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged, and the victim includes his or her guardian or legal heirs. The concept of victim includes any person who experiences an injury, loss, or hardship due to any cause.[2]

The primary victims are those who are most directly impacted by the offence, but there are also other victims, including witnesses, members of the affected community, and family members of both the victims and the offenders. It is imperative to address the relationships that were impacted by the crime. Responses to the variety of needs and damages felt by victims, offenders, and the community constitute restoration.

COMPENSATION TO VICTIMS

Traditionally, compensation was awarded according to the principle “Ubi remedium ibi jus” (where there is a remedy, there is a right principle. Criminal law was not a concept in any prehistoric culture. Every crime, including murder, might be made up for financially. Every crime was, in fact, a civil wrong rather than an offence against society as a whole. The phrase “Ubi Jus ibi remedium” -where there is a right, there is a remedy” holds true in the present times. The idea of compensation nowadays is that no one should go without compensation.[3]

There are some general and specialized laws with provisions relating to compensatory relief in India.

Sections 357 (1) and (2) of Cr.P.C. empower the trial court to award compensation to the victims of crime. The compensation provided in S. 357(1) includes costs, damage, or injury, suffered or loss caused due to death or monetary loss incurred due to theft or destruction of property, etc. Similarly, Sec.357-A is inserted by Amendment Act 2008 in Cr.P.C. and it provides a scheme relating to victim compensation. Accordingly, every State Government is required to prepare a scheme for providing funds for the purpose of payment of compensation to a victim or his dependent who has suffered any loss or injury due to the crime.

The current criminal justice system is predicated on the idea that the conviction of the offender is sufficient to recognize the rights of a crime victim. The Ministry of Home Affairs Committee on Reforms of the Criminal Justice System, chaired by Justice Dr. V.S. Malimath, recognized “justice to victims” as one of the core principles of Indian criminal law in its Report presented to the Government of India in March 2003. By permitting, among other things, involvement in criminal processes as well as compensation for any loss or injury, it suggests a comprehensive justice system for the victims.

Victimology was not formally acknowledged as a branch of criminology until the 1970s. The founding of the World Society of Victimology by criminologist Hans Schneider in 1979 was one of the significant turning points in the history of victimology. It is presently a nongovernmental, nonprofit organization with Special Category consultative status with the Council of Europe and the Economic and Social Council (ECOSOC) of the United Nations.[4]

As the word implies, victimology is the study of victims. The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, defines a “victim of crime” as a person or group of persons who have been harmed, individually or collectively, by acts or omissions that violate criminal laws in effect within the Member States, including those laws proscribing criminal abuse of power.[5]

VICTIM RIGHTS AND VICTIMOLOGY IN INDIA

Victims’ rights have been given recognition by the Indian Criminal Jurisprudence. By submitting an F.I.R. under Section 154 of the Code of Criminal Procedure or a complaint before the Magistrate under Section 200, the victim or any other person initiates the legal process. The victim has the right to be present at every process, including the bail application, the investigation, the inquiry, the trial, and any future sentencing or parole hearings. It recognizes the harm done to the victim as well as his interest.

When an F.I.R. is filed, the police launch an investigation. However, the police cannot begin an investigation if there is a report of an offence that is not cognizable without the consent of a magistrate who has the power to try the case or commit it for trial. The office in charge of the Police Station need not go in person or appoint a subordinate officer to conduct an inquiry immediately in the case of a cognizable offence when the information is presented against any person by name and the situation is not serious. Officer-in-Charge of the Police Station shall not examine the case if it appears that there is insufficient justification for opening an investigation.

Additionally, the option to complain to the Magistrate has been provided. A magistrate who receives a complaint about an offence must examine the complainant and any present witnesses.

RIGHT OF PRIVACY OF RAPE VICTIMS

In numerous instances, the privacy of the victims is infringed. Their name or place of residence is made public which may cause them to suffer even after restoration or rehabilitation. The Supreme Court, in Raja Gopal’s case,[6] observed that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing, education, etc. because the right to privacy is inherent in the right to life and liberty guaranteed under Article 21 of the Constitution. However, despite the fact that the CrPC specifically states that rape cases must be tried in secrecy, the privacy of the victim is breached throughout a criminal prosecution. In Gurmeet Singh’s case, the Supreme Court was forced to reiterate the law as it is stated in Section 327 of the CrPC.[7]

A victim may be authorized to instruct a pleader as a prosecutor in any Court pursuant to Section 301(2). In such a case, the prosecution will be handled by the public prosecutor or assistant public prosecutor in charge of the case.
Section 12 of The National Legal Service Authority Act, of 1987 reinforced the idea of free legal aid. It provides that every person who has to file or defend a case shall be entitled to legal services under this Act if that person is a Scheduled Caste or Scheduled Tribe member, a woman, a child, a person who is mentally ill or otherwise disabled, an industrial worker, a victim of a major disaster, or a person in custody of a protective home as defined by clause (g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956 and people whose annual income is less than Rs. 9,000 or another higher amount that may be prescribed by the State Government if the case is before a court other than the Supreme Court, and less than Rs. 12,000 or another higher amount that may be prescribed by the Central Government if the case is before the Supreme Court.[8]

In the State of Himachal Pradesh v. Prem Singh,[9] the Supreme Court has held that the delay in lodging F.I.R. in a case of sexual assault cannot be equated with a case involving other offences. There are several matters that weigh the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint and in such cases of sexual assault, the victim’s psychological and mental torment should definitely be considered.

In India, the higher courts have traditionally taken great care to ensure that victims of crime receive compensation. Since the Supreme Court’s formation, the first instance in which a person received monetary compensation for the violation of one of his or her fundamental rights was the case of Ruddal Shah v. State of Bihar[10] that a person is entitled to compensation for the loss or injury caused by the offence, and this includes the victim’s wife, spouse, parents, and children. The ruling, in this case, is a landmark one since it sparked the development of compensatory jurisprudence for constitutionally protected fundamental rights violations. It is significant in this regard that this verdict was based on the Court’s interpretation of the Indian Constitution and that there is no clear provision in the text of the Indian Constitution for awarding compensation and that this judgment was on the basis of the Court’s interpretation of the extent of its remedial powers.

In the case of Bhim Singh v. State of Jammu & Kashmir,[11] the court ordered a compensation of Rs. 50,000 to the petitioner, a member of the Legislative Assembly, for the violation of his legal and constitutional rights after finding that he was maliciously and deliberately detained and arrested by the police in order to prevent him from attending the assembly session. The court observed that the malicious intention of the arrest and detention is not washed away by his later release.

The victim or his family cannot be neglected by the court in its efforts to uphold and defend the human rights of the convict if the victim dies or becomes otherwise unable to support himself as a result of the convict’s criminal act. The victim is certainly entitled to reparation, restitution, and safeguarding of his rights. In the criminal justice system, a victim of a crime cannot be ignored. He has endured the most hardship. His family is completely destroyed, especially in the event of death or severe physical harm. This is in addition to considerations like humiliation and reputational damage. An honour that is lost or a life that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace. This was observed in the case of the State of Gujarat v. Hon’ble High Court of Gujarat.[12]

For a variety of reasons, witnesses and victims of crime are hesitant to cooperate with the criminal justice system and actively participate in court procedures. When called to the police station for questioning, witnesses are scarcely ever treated with respect. Additionally, they do not receive any compensation in the form of TA and DA reimbursement, as required by section 160(2) of the CrPC. The court’s repeated adjournments of cases, the subordinate courts’ lack of basic amenities, and the failure to pay TA and DA for witnesses’ attendance in court all cause a significant amount of difficulty for the witnesses. The prosecution would brand the witnesses hostile for not backing the statement recorded by the IO or the overzealous defence attorney would browbeat them for being questioned after a long interval of 5 to 10 years after the incident.

The limitation of the aforementioned legal provisions is that when the accused is exonerated of the allegation, which occurs in roughly 93% of instances in India, compensation cannot be granted by the court. The United Nations General Assembly has advised states to compensate crime victims when the criminal or other sources are unable to provide it in full. The urgent needs of crime victims are not being addressed by Indian legislators. Despite being required to comply with the terms and conditions of the International Covenant to Protect Human Rights and Fundamental Freedoms, India has not passed any legislation to provide compensation to the victims when the accused is found not guilty by a criminal court. As a result, the victims of racial strife, dacoity, arson, rape, etc. are not receiving any recompense.[13]

CONCLUSION

The study of victims in the contemporary criminal justice system and providing restoration remains the sole focus of mainstream victimology. This emphasis has affected how crime is measured and the role that victims play in addition to increasing awareness and understanding of crime victims. Additionally, society as a whole is morally responsible for the crime because it is a result of some unfavourable socioeconomic conditions. If the State fails to eliminate certain issues from society, it must provide compensation.

Organized crimes, such as drug trafficking, shootings, money laundering, extortion and murder for rent, fraud, and people trafficking, in particular, are rapidly raising the crime rate in India. A survey indicates that every two minutes, a crime against a woman is reported in India. The data emphasize how vital it is to create effective law and order in the country and suitable victim compensation mechanisms.

---

References

1. L. D. Dabhade & N. A. Qadri, Present Scenario of Contempt and Development of Victimology in India, 2 IJRSSIS 61-64 (2015).
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. (1994) 6 S.C.C. 632 (India).
7.  (1996) 2 S.C.C. 384 (India).
8. Ibid.
9.  2009 Cr LJ 789 (S.C.).
10. (1983) 4 S.C.C. 141 (India).
11. (1985) 4 S.C.C. 677 (India).
12.  (1998) 7 S.C.C. 392 (India).
13. R K Bag, Perspectives in Victimology in Context of Criminal Justice System, 41 JILI 78 (1999).

INTRODUCTION

In India, marriage is considered a sacred union between two bodies of opposite sexes. Sharing a common room, their life, and the commitment to live with each other makes it unbreakable bondage not only for one life but for seven lives. It is believed that when two souls will unite in every sense that is physical, mental, and psychological, a new soul will come into existence which is termed “PROGENY” which is very important and that is how life will move ahead. It is believed that this relationship is built by God in Heaven and no one should question this, even the “Husband and Wife”. But what if one of the spouses isn’t happy with this sacramental knot and wants to break it? Is he or she allowed to do so?

The answer changes with time. Before this century, even the thought of separation was deemed to be a very sinful thing but today it is not. The main reason behind this is that people are now more advanced. The development in the field of communication, education, understanding, and societal norms has developed the social strata of society. People have now started giving importance to their mental health and that is good in every sense.

BACKGROUND

Historically, there is no proper law that considers the ground of “Irretrievable Breakdown of Marriage” for the ground of Divorce. Under the Hindu Marriage Act, 1955, Section 13 deals with the various ground on which divorce can be obtained. They are:

Fault Ground [Section 13(1)]

1. Desertion, Adultery, Cruelty, Insanity, Leprosy, and Venereal Disease¹.
2. Apart from this, Conversion and Renunciation of the world can also be used as a valid ground for Divorce in Hindu Religion. Under this case, 2 conditions should be met and they are:
3. The spouse has ceased to be a Hindu, and
4. He or she has converted to another religion².

In the case of Teesta Chattoraj vs. Union of India³, the court held that conversion of religion by one spouse can be used as a valid ground for divorce. Similarly, in the case of Sital Das vs. Sant Ram⁴, the court held that if someone undergoes the traditions, rites, and ceremonies of religion, that person will be considered to have entered the religious order but if that individual cohabits then it cannot be considered a valid ground because he or she has no longer renounced the world.

Divorce by Mutual Consent [13B (1)]⁵

According to this section, if the spouses are not happy with each other and want to separate and lead a new life away from each other, they can file for divorce based on the ground of “Divorce by Mutual Consent”.

Customary Divorce [Section 29 (2)]⁶

Proceeding further, Section 27 and Section 28 of the Special Marriage Act, 1954⁷ also deals with the grounds of divorce in a solemnized marriage. But nowhere it is explicitly mentioned that the ground of “Irretrievable breakdown of Marriage” is a valid ground. In this respect only, the Law Commission of India in its 71^st Report recommended that the ground of “Irretrievable Breakdown of Marriage” should be explicitly mentioned and stated in the Hindu Law. But this lapsed as there was a high level of resistance and lack of support from some major women-led NGOs. The reason which was put forthwith was that the ground of “mutual consent” already covers this and a new addition will only complicate things further.

In the case of Munish Kakkar vs. Nidhi Kakkar⁸, the court itself expressed that a dead letter marriage would only create a strenuous relationship between the spouses. It would be better if they split and move ahead in their lives “as the recognition of the futility of a completely failed marriage being continued only on paper….”

That is why, in the case of Naveen Kohli vs. Neelu Kohli⁹, the Supreme Court itself stated that adding the ground of “Irretrievable breakdown” in the Hindu Marriage Act, 1955 is reasonable. The individuals are right if they go with this option.

LEGAL FACET

Though there is no specific provision present in the current judicial system, there are instances where the Supreme Court has collapsed the marriage on the ground of irretrievable breakdown under the power conferred by Article 142 of the Constitution of India.

In the case of Pramod Kumar Mittal and Another vs. Kanchan Devi¹⁰, the Court exercised its power under Article 142 of the Constitution of India and dissolved the marriage between the appellant and the respondent. Here, there were 4 daughters also who were born out of wedlock but the Court maintained that the husband is maintaining them till now and he will continue to do so. A reasonable opportunity will be given to the wife to meet her daughters if she has any intentions or desire for doing so.

Similarly, in the cases of Sanghmita Ghosh vs. Kajal Ghosh¹¹, Samar Ghosh vs. Jaya Ghosh¹², K Srinivas Rao vs. D.A. Deepa¹³, Sukhendu Das vs. Rita Mukherjee¹⁴, the court exercised its power under Article 142 and dissolved the marriage on the ground of “Irretrievable Breakdown”.

And, the recent case in this regard is R. Srinivas Kumar vs. R. Shametha¹⁵. Here, the petitioner claimed that he suffered mental cruelty because of the respondent and that is why he filed for divorce under the Section 13(1)(i-a) and (ib) of the Hindu Marriage Act, 1955 which was dismissed in the Family Court as the husband failed to prove the ground of cruelty. When he then appealed to the Higher Court, it was again dismissed. After this, he moved to the Supreme Court and presented his case where it was mentioned that both the spouses are not living with each other for the past 22 years and this should be considered as a ground for an “Irretrievable Breakdown” of marriage. Then, the SC exercised his power under Article 142 and granted Divorce.

Sometimes, there are situations like when the spouses cannot bear each other in a matrimonial relationship for even the time period of 1 year or 6 months. In that case, the SC did exercise its power again and dissolved the marriage. This was done in the case of Manish Goel v. Rohini Goel¹⁶, where the court held that “the court is competent to waive of the statutory period of six months in the exercise of its jurisdiction under Article 142 of the Constitution.” This case is also important from the view that, in this case, the Court passed an order contrary to another law. Generally, no court has the power to issue a direction that is in contravention of the statutory provisions because courts are the institutions that are meant to enforce the rule of law and not pass an order which is in contravention of that. But in the case of, Laxmidas Morarji (dead) by L.Rs. v. Behrose Darab Madan¹⁷, the Court has held that the power under Article 142 of the Constitution of India is constitutional and therefore, cannot be restricted by any statutory enactments. This doesn’t mean that now the Court can act or pass an order which is inconsistent with the statutory enactments about the case. The power has to be exercised only in cases where existing provisions of the law are not able to bring complete justice between the parties.

Likewise, there are a series of Judgments where the Supreme Court pronounced judgments in the exercise of its power under Article 142 of the Constitution of India and granted divorce to the spouses who no longer wanted to live with each other in a matrimonial relationship because it continuity will only prove to be fruitless and further cause emotional roller coastal ride on the lives of the individuals involved. The sooner it ends, the better it would be for both parties as there is no reason of continuing or be tied in a sacramental knot that has no sense in reality.

CONCLUSION

No doubt marriage is an institution that is very pious and sacramental in its own sense. When it happens, there is a birth of a new soul in this world which only brings happiness and happiness. Not only that, but it also grants individuals some legal rights which are not in place when the individual is single. It is only extended to married people that are:

1. Right to inherit spouse’s property upon death
2. Right to receive spouse’s social security, pension, worker’s compensation, or disability benefits
3. Right to receive “marriage” or “family rate” on health, car, and/or liability insurance.

But still, that does not mean keeping two people in a relationship where both parties or even one party is unhappy. If the marriage proves to be meaningless and pointless, it should be dissolved. Apart from this, our legal judicial system cannot turn a blind eye when one or both parties find it laborious to continue in a relationship. It is a very miserable situation where only quarreling, bickering, bitterness, and many other things reside. And in that case, it cannot be said as an immoral activity when one party tries to break it. Because all the responsibilities and duties come after humanity. It is to be noted that “Irretrievable Breakdown of Marriage” is not a recognized ground for Divorce under the actual Hindu Marriage Act, 1955 or any law. It has been only accepted as a ground-based on precedents.

---

REFERENCES

1. Hindu Marriage Act, 1955, Section 13(1).
2. ibid
3. Teesta Chattoraj vs, Union of India, 2012 SCC OnLine Del 1949 
4. Sital Das vs. Sant Ram, 2011 SCC OnLine Mad 681
5. Hindu Marriage Act, 1955, Section 13 (B) (1)
6. Hindu Marriage Act, 1955, Section 29 (2)
7. Special Marriage Act, 1954, Section 27 and 28
8. Munish Kakkar vs. Nidhi Kakkar, (2020) 14 SCC 657
9. Naveen Kohli vs. Neelu Kohli, 2006 (4) SCC 558
10. Kanchan Devi vs. Promod Kumar Mittal, (1996) 8 SCC 90
11. Sanghamita Ghosh vs. Kajal Ghosh (2007) 2 SCC 220
12. Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511
13. K.Srinivas Rao vs. D. A. Deepa, (2013) 5 SCC 226
14. Sukhendu Das vs. Rita Mukherjee, (2017) 9 SCC 632
15. R. Srinivas Kumar vs. R. Shametha, AIR 2019 SC 4919
16. Manish Goel vs. Rohini Goel, (2010) 4 SCC 393
17. Laxmidas Morarji (DEAD) by LRS. vs. Behrose Darab Madan, (2009) 10 SCC 425

This article is written by Deeksha Singh, from Lloyd Law College, Greater Noida.

Introduction

When the British left a violently divided India in 1947, Jammu and Kashmir had the option of joining either India or Pakistan or remaining independent. Even though there was already strong opposition to him in the form of the Quit Kashmir campaign, the then-Hindu king Maharaja Hari Singh preferred to maintain his position of power (the Muslim populace was against Hari Singh and wanted him to secede to Pakistan). Armed tribesmen from Pakistan invaded J&K as revenge and took control of strategic areas, which are now known as Pakistan Occupied Kashmir (POK).

In a desperate attempt to secure military support, the Hindu Maharaja agreed to India’s accession on the condition that the decision would be made with the support of the locals (Ganguly-1994). India brought the matter before the UN Security Council, which approved a cease-fire deal between India and Pakistan known as the “Karachi Agreement,” subject to a referendum once troops had been evacuated from both sides. The notion of a referendum was abandoned because Pakistani troops refused to leave one-third of Kashmir and have remained there ever since, referring to the area as “Azad Kashmir.”

With the accession, India gained control over the defense, foreign policy, and communication of Kashmir. Although Kashmir did legally become a part of India, the territorial disputes between Pakistan and India tore Kashmiri citizens apart.

Research Review

Jammu and Kashmir have been wracked by unrest since August 2019 as a result of Article 370’s repeal. The history of the creation of Article 370 is examined in the article “The Revocation of Kashmir’s Autonomy: High-Risk Hindutva Politics at Play” by Medha Menon (2021). It also examines how its repeal drives the establishment of Hindu Nationalist Politics, which silences the voice of the minority. It also focuses on how women’s rights are evolving in the valley amidst conflict. Sumit Ganguly’s article “India and the Crisis in Kashmir” from 1994 goes into detail about how political mobilization and institutional failure led to the emergence of the insurgency in J&K. The study also focuses on suppressing dissent that manifests as violence as a result of overly harsh treatment of Kashmiris.

The Yale School paper “The Myth of Normalcy: Impunity and the Judiciary in Kashmir” provides an outstanding analysis of Kashmir’s judicial system. The argumentative essay provides strong evidence of the violations of human rights that occurred after repressive laws like the Public Safety Act (PSA) and the Armed Forces Special Protection Act (AFSPA). It also makes observations on how the current legal framework gives military troops complete impunity for criminal activity.

The article from The Wire titled “J&K Internet Shutdown Based on Dubious Legal Framework” describes how communication blockades in the valley under the guise of national security have ended up becoming a type of collective punishment that the government abuses. It draws attention to the unrest that this broad restriction has produced in civil societies.

Discussions And Analysis

Granting Special Autonomy, Article 370

Jammu and Kashmir are given a distinct status within India and unique capabilities under Article 370. According to the Article, the state must have its Constitution, flag, election commission, and president (or “Sadr-i-Riasat”) in place of a governor. Additionally, the Ranbir Penal Code, the state’s criminal code, and discriminatory property rights for women are both present (Medha-2019). By requiring state governments to be consulted on issues that are on the Union and Concurrent lists, it limits the Parliament’s ability to enact laws.

Additionally, this Article supported the execution of only two articles of the Indian Constitution in the state, with the proviso that the President may, at any time, declare Article 370 to be inoperative through a public notification. Hindus and Muslims living in the valley had grown suspicious of one another as a result of the subjugation and compelled integration of a state with a Muslim majority into India. Furthermore, because of the unique privileges given to its residents with regard to property, work, and residency, the state has developed in a setting of exclusivity and separation. Although these laws may have given the state more autonomy, the deployment of armed soldiers in the valley has created an atmosphere of unease and suspicion.

All of these clauses were no longer in effect on August 5th, 2019, when Article 370 was repealed and Jammu and Kashmir were fully incorporated into India. However, because Article 370 was adopted from the beginning as a “temporary measure,” the abrogation was not unlawful (Sharma-2019). However, over the years, poor administrative and bureaucratic decisions have made it difficult to revoke it. The abrogation has made mainstream political parties in J&K, like the PDP, who sought support for the demand for self-rule, hostile. Placing key leaders under house arrest, as is permitted by the Public Safety Act, has further muted dissenting voices (PSA). J&K’s political and social trajectory still veers along uncertain, dangerously stated paths.

Internet shutdown

After Article 370 was repealed, a wave of protests and stone-throwing broke out in the valley, forcing the authorities to shut down all communication channels. People in the valley are in a dangerous state of anxiety because they are worried that Pakistan may try to influence this contentious subject in response to India’s cautious and conciliatory stance. In August 2019, India was utilizing the cutting-edge spaces made possible by internet services, while Kashmir was forced to experience a blackout. The BJP government defended the action on the grounds of security, violence prevention, and halting the spread of untrue rumors. To monitor money laundering and the funding of terrorism, the government eventually gained access to trace all types of digital transactions.

Since that time, the state’s citizens have been cut off from the outside world and living in darkness. When there were lockdowns and no remaining means of communication, trade, and business suffered. Travel restrictions brought the tourism industry to a standstill, leaving many employed in ancillary businesses without a job or another source of income. The residents of Kashmir struggled with meager financial aid and low employment rates. Due to the government’s lack of concern for the regular people, they struggled to make ends meet.

The closure of educational institutions and the suspension of internet access have effectively closed off all avenues of knowledge for pupils, which is a clear violation of their constitutional right to an education. The options that would have normally provided them with fresh horizons have been taken away from them.  When Article 370 was repealed, the government promised to open prestigious institutions of higher learning, but these assurances have not yet materialized. Kashmiri kids have been forced into a pit of unfair possibilities by the broken educational system, infringing on their right to equality.

Because of the communication blockage, Kashmiris are completely cut off from the outside world. For the past year, Kashmiris have been unable to reach their family, and they continue to worry about their welfare. The situation has caused more unease and worry, which frequently manifests itself in violent fights with the troops. Public gathering bans and widespread arrests of those the draconian PSA refers to as “miscreants” have been used to quell these unrests. After the abrogation, the Unlawful Activities Prevention Act was put into effect in J&K, which resulted in the additional arrest of 255 non-violent activists (Duschinski, Bhan-2017).

Although J&K has struggled to speak out thanks to the recently provided right to expression under the Indian Constitution, it has been muted by the imposing of the longest internet blackout. Despite the Supreme Court’s ruling in Faheema Shirin RK v the State of Kerala saying that the right to the internet is a basic right, Kashmiris continue to struggle with these communication difficulties.

Since Article 370 has been repealed, Kashmiris are now entitled to several fundamental rights guaranteed by the Indian Constitution, yet these rights are often abused. The question of whether Kashmiris would be true legal Indian citizens in the truest sense or merely stay a part of India through legislation and coercion is raised in their thoughts by this circumstance. The central government went too far and ignored the SC ruling in Bhasin v. Union of India regarding the proportionality of internet shutdowns. The judgment is compared to weak wi-fi signals, which are present but have no influence, in the context of zero implementation. Although Kashmiri nationals may have been included under the scope of the Indian constitution as a result of the removal of Article 370, it is still unclear whether this action has given them rights.

The future of women’s rights: freedom or limitations

Every Kashmiri citizen, especially Kashmiri women, has been harmed by the repeal of Article 370, which has also oppressed the lower classes. Gross human rights breaches, which are also reflected in discriminatory laws, have already been caused by the terrorism and military occupation of the region. One of the fundamental elements used to justify the abrogation by the Central government was the uniformity and equality of women’s rights. They saw it as a sign of freedom and self-determination for Kashmiri women. According to the centre, the revocation will provide women more authority by allowing them to transfer and purchase property even if they are married to someone who does not reside in Jammu and Kashmir. Now, the identical may also be inherited. The same can now be passed down to their offspring, giving them the same property rights as men, which was previously not feasible. This discriminatory clause in Article 35A is no longer valid as a result of the repeal of Article 370.

Activists, female sarpanches, and Kashmiri Pandit women who were married in other areas of the nation applauded the abrogation because they had lucrative stakes in the valley. The situation of Kashmiri women living in the valley, however, has not improved, and they continue to endure terrible repression. The political culture and the government have traditionally worked to limit women’s active engagement in society. Military forces posted in the valley have further suppressed women, and they frequently experience physical and sexual abuse. Despite having the right to express themselves freely, women nonetheless have to constantly worry about arbitrary government actions and being treated like second-class citizens.

Draconian military measures like AFSPA (Armed Forces Special Protection Act) have silenced women’s voices and made them vulnerable to sexual assault and other forms of violence. The AFSPA gives the military the authority to maintain public order in “disturbed areas,” detain someone without a warrant and employ reasonable force. Military troops commit horrible crimes with complete impunity under the guise of these deeds. According to these women, the entire gruesome process was “widowed by conflict, isolated by arrest” (Zahra, Muzamil-2020).

The J&K-based Valmikis were permitted to enter the valley under the condition that they exclusively act as scavengers (Sareen-2020). The Valmiki community is forced to scavenge regardless of their level of education in this egregious violation of their human rights. Similar to this, Gorkhas living in J&K were also refused citizenship while being harassed with financial demands by administrative authorities in the absence of the Right to Information Act and the Comptroller and Auditor General, who might have stopped these wrongdoings.

Increased female and working-class representation in public spaces is being offered as a carrot by the centre, which also promises a pot of gold at the end of the rainbow. But keeping women out of the decision-making process is a colonial, top-down strategy that has no advantages. By imposing judgments on them and pretending to know what is best for their welfare, the Hindu hard-line BJP administration has established itself as a patriarch. A campaign for women’s rights seems to be taking different forms in reality than it did in theory.

Change in the Government’s Authority and the Demographic Paradigm

The only Muslim-majority state in India was granted sovereignty and special status under Article 370. Under Article 370, the state defined and prescribed its legal and policy framework. Only permanent residents of Kashmir were permitted to own property in the valley, which also implemented a stringent settlement policy. All of these clauses are no longer in effect as a result of the repeal of Article 370, and J&K is now subject to directives from the federal government.

The opening up of the valley and the anticipated influx of Hindu people instilled in the minds of the Muslim majority population, the dread of being oppressed and enslaved. The residents of the region worry that historical religious violence’s scars may reappear. The general public views the revocation as a complete military takeover of Kashmir through the use of the legal system. Kashmiris view it as contradictory to be referred to as legal citizens of India while still being treated as subjects of governance without their permission.

The locals worry that the settlement of “outsiders” will cause the outcomes of any referendum or plebiscite to change dramatically over time, should it be held. The military will operate in complete anarchy, according to human rights groups, as a result of the centre’s overreaching support (Hussain, 2009). The abrogation, according to pro-Pakistan Kashmiri groups, is a plan by the Indian government to further tighten the noose around Kashmir and make disruptive violence the new standard in the valley.

Conclusion

Jammu & Kashmir’s fame has usually been contested on each both internal and outdoor. Three countries—India, Pakistan, and China—make claims to their land, which results in a steady movement of unrest and border conflicts. India’s valley is ripped aside with the aid of using warfare for dominance among the nation and federal administrations. The valley is presently experiencing unrest and anxiety due to these kinds of reasons. The nation has been reducing off from the outdoor global and without getting admission to the net for greater than a year.

Although the closely armed army has efficiently maintained peace and order, they have got additionally made Kashmiris sense remoted and not so good as Indian nationals. Jammu and Kashmir are nevertheless ready to be free of the verbal exchange blackout and to lose their fame as “disturbed areas.” The majority of Muslims in J&K are keen to study the outcomes of their minority fame.

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

INTRODUCTION

Since before the arrival of the first colonists, income taxes have been a common idea. It is regarded as a tax that a citizen pays to the state, based on their income and the profits of their businesses. The state uses the money it receives from taxes for a variety of things, such as providing public services, building infrastructure, paying for the military and other forms of defense, and providing subsidies. The Income Tax Act of 1961 is a sophisticated and extensive statute that covers all of the different laws and rules that govern how the country administers its tax system. Income tax is levied, handled by, collected from, and collected by the Indian government. According to Section 4 of the Indian Income Tax Act, income tax will be assessed for the corresponding assessment year based on each person’s total previous-year income at the rates set out by the Finance Act. As the name suggests, tax deducted at source (TDS) aims to collect money right from the source of income. It combines the ideas of “pay as you earn” and “collect as it is being earned,” and is essentially an indirect method of “collecting tax.” It is important to the government because it gets ready for tax collection, guarantees a steady stream of income, and gives taxes a wider base and greater reach.

In addition, it offers the taxpayer a straightforward and practical method of payment while also distributing the tax’s incidence. The person receiving the income is typically responsible for paying income tax. However, the government makes sure that income tax is taken out of your payments in advance using provisions known as ‘Tax Deducted at Source.’ The net sum is given to the income recipient (after reducing TDS). The recipient will include the gross amount in his income and subtract the TDS amount from his overall tax obligation. The sum already withheld and paid on the recipient’s behalf is accepted as payment in full. The mentioned provisions are used to fulfill the recipient’s tax obligations. As a taxpayer, it is our responsibility to declare the amount of income we have earned and paid taxes on in our income tax return.

According to Section 192 of the Income Tax Act of 1961, anyone responsible for paying any income that is chargeable under the head ‘salary’ must deduct income tax from the assessee’s anticipated income under the head salary. The tax must be computed at the average income tax rate based on the rates currently in effect. The deduction must be made at the time of the actual payment. However, unless the estimated salary income exceeds the maximum amount exempt from the tax that applies to an individual during the relevant financial year, no tax is required to be withheld at the source. Once the tax has been deducted, it must be deposited in a government account, and the employee must be given a certificate of tax deducted at the source (also known as Form No. 16). The employee must include this certificate with his income tax return to receive the TDS credit on their income tax assessment.

Lastly, the employer/deductor must complete Form No. 24Q, Quarterly Statements, and submit it to the Income-tax Department. Salary is said to be the remuneration received by or accruing to an individual for service rendered as a result of an express or implied contract. The statute gives an inclusive but not exhaustive definition of salary. As per Sec. 17(1), salary includes therein-

• Wages
• Annuity or pension
• Gratuity
• fees, commission, perquisites, or profits in lieu of salary
• Advance salary
• Receipt from provident fund
• Contribution of the employer to a recognized provident fund in excess of the prescribed limit
• Leave encashment
• compensation as a result of variation of service contract etc.
• Government contribution to a pension scheme.

The law mandates that tax be withheld at source from earnings covered by the head salary. As a result, the existence of an employer-employee relationship is a requirement before a specific receipt can be taxed as a head salary. When an employee is subject to the employer’s right to direct how he carries out instructions in addition to working under his direct control and supervision, this type of relationship is said to exist. Therefore, the law essentially mandates the deduction of tax in the following situations: (a) When the employer pays the employee. The income under the head salaries is above the maximum amount not subject to tax, (b) the payment is in the nature of a salary, and (c) the payment has been made. Both payment and deduction of tax are in the hands of the employer.

Even if an individual or HUF is not subject to a tax audit, payments made by them that total more than Rs 50,000 per month must be TDS-deducted at a rate of 5%. Furthermore, individuals and HUF required to deduct TDS at 5% are exempt from applying for TAN. Your employer deducts TDS at the corresponding income tax slab rates. Banks deduct TDS at a rate of 10%. If they don’t have your PAN information, they may also deduct 20%. The income tax Act specifies the TDS rates for the majority of payments, and the payer deducts TDS based on these rates. If your total taxable income is less than the taxable limit and you provide your employer with investment proof (to claim deductions), you are not required to pay any tax. There should be no TDS deducted from your income as a result.

TDS on payment of pension– It has been clarified by CBDT vide circular No. 761 dt. 13/01/98 that in the case of pensioners receiving pension through nationalized banks, provisions of TDS are applicable in the same manner as they apply to the salary income.

TDS on Retirement Benefits: According to section 17, retirement benefits that an employee receives are taxable under the heading salaries as ‘profits in lieu of salaries’. As a result, they are subject to the TDS provisions outlined in Section 192 and other pertinent sections. As a result, when an employee retires, the employer must compute the TDS while taking these factors into account. However, some of these retirement benefits are either fully or partially exempt from taxation under Section 10.

COMPARISON OF GOVERNMENT EMPLOYEES AND PRIVATE SECTOR EMPLOYEES

Rent-Free Accommodation (Unfurnished): It is a benefit that the employee receives from their employer. A prerequisite is simply a non-financial or in-kind benefit provided to an employee. According to the Act’s provisions, these are taxable in the employee’s hands.

• Government Employees: The taxable value of the benefit shall be the License Fees as determined by the Government for the allotment of houses. The License fee is quite nominal.
• Other Employees: House is owned by the Employer. The following shall be the taxable value of the perquisite-
  • If the Population exceeds 25 Lakhs, then 15% of salary.
  • If the Population ranges between 10-25 Lakhs, then 10% of salary.
  • In any other case, 7.5% of salary.

House is taken on lease or rent by the employer: The taxable value of perquisite shall be irrespective of the population. it shall be Actual Rent & 15% of salary whichever is lower.

• Gratuity:
  • Government Employees: The amount of Gratuity received is fully exempt from tax.
  • Other Employees: The Exemption shall be a minimum of the three:
    1. Actual Gratuity Received.
    2. Rs. 1,00,000(Likely to increased to Rs. 20,00,000).
    3. 15/26*Last drawn salary* Completed year of service or part thereof.
• Pension:
  • Government Employees: Fully Exempt.
  • Other Employees:
    1. Non- Government Employees in receipt of Gratuity: Only 1/3rd of the full value of the commuted pension is exempt from tax. So, technically you are required to pay tax on 2/3rd of the value of the commuted pension.
    2. Non-Government Employees not in receipt of Gratuity: Only 1/2nd of the full value of the commuted pension is exempt from tax. Here, you are required to pay tax on half of the value of the commuted pension.

Basis of Difference	Government Employees	Non-government Employees
Entertainment Allowance	Lower of below is allowed as a deduction: 1/5th of salary, or, Rs. 5000	Fully-taxable. No deduction is allowed
Rent-free Accommodation (Unfurnished)	The nominal License fee shall be taxable value.	Certain Percentages of salary shall be taxable value.
Foreign allowances or perquisites	Exempt	Not Exempt

CONCLUSION

The numerous tax benefits enjoyed by the government employee could be one of the reasons which give them an edge over the non-government employee. Tax deducted at Source (TDS), as the name implies, aims to collect money directly from the source of income. It is essentially an indirect way of “collecting tax,” combining the concepts of “pay as you earn” and “collect as it is being earned.” It is crucial to the government because it prepares for tax collection, ensures a consistent income stream, and expands the base and scope of taxes. It also distributes the tax’s incidence while providing the taxpayer with a simple and useful method of payment. Taxes on income are typically paid by the individual receiving the income. However, using a feature known as “Tax Deducted,” the government ensures that income tax is deducted from your payments in advance.

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

INTRODUCTION

Money laundering seriously jeopardises nations’ financial systems as well as their integrity and sovereignty. The international community has taken some actions to eliminate these threats. It has been thought that we urgently need comprehensive legislation to stop money laundering and related activities. The Prevention of Money-laundering Bill, 1998 was introduced in Parliament to accomplish this goal. The Standing Committee on Finance received the bill and reported it to the Lok Sabha on March 4, 1999. The Standing Committee’s recommendations were broadly accepted by the Central Government, and they were included in the aforementioned Bill along with some other desired adjustments. The Prevention of Money Laundering Act, 2002 was passed by parliament on January 17, 2003, but it has yet to be implemented in its entirety.

The term “money laundering” refers to the process of cleaning or hiding the source of money that was obtained illegally. Money laundering, according to the law, is the process of processing money obtained illegally through a legitimate business or sending it to a foreign bank so that when it returns, no one will be able to tell that it was obtained illegally. Money earned through illegal activities like extortion, drug trafficking, the supply of firearms, organised crime, etc. is cleaned during the money laundering process. It typically involves three steps. A criminal first enters the formal financial system with the stolen funds (Placement). Second, to prevent the origin or original identity of the crime money from being lost or disappearing, the money that has been injected into the financial system is layered or spread out across several transactions with the financial system (Layering). Thirdly, the money is incorporated into the financial system in such a way that the initial connection to the crime is completely lost, and the criminal and his accomplices can use the money because they receive it as clean money (Integration).

Additionally, the offence of money laundering includes:

● The greater proportion of investment goes back into illegal activity.

● The overall transactional cost of engaging in money laundering is significantly lower

● There is a greater pressing need to use clean liquidity to finance such reinvestment.

● Larger disparities between expected real returns from illegal and legal activity.

● The initial volume of illegal income that needs to be cleaned up is greater.

HIGHLIGHTS OF THE PREVENTION OF MONEY LAUNDERING ACT, 2002

Section 3 of the PMLA says whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with proceeds of crime and projecting it as untainted property shall be guilty of the offence of money laundering. The penalties for the offences listed in Paragraph 2 of Part A of the Act are outlined in Section 4 of the Act. The relevant Act sections have granted the Director of the Financial Intelligence Unit (FIU-IND) and Director (Enforcement) exclusive and concurrent powers to carry out the Act’s provisions.

The creation of a special court with the status of a session court for the prosecution of offenders under Section 4 of the act is discussed in Section 43 (1) of the act. The special courts are authorised by Section 43(2) of the Act to try offences other than those listed in Subsection (1), which the accused may be charged with under the Code of Criminal Procedure, 1973, at the same trial. Section 44 addresses offences that can be tried in specialised courts.

CHALLENGES

The PMLA has undergone numerous amendments (in the years 2015, 2018, and 2019) designed to close the gaps in how it operates. However, the following clarifications of persistent legal ambiguities are provided:

● The 2019 Revision clarified how “proceeds of crime” are defined in section 2 (1)(u). According to the law, “proceeds of crime comprise property not only deducted or acquired from the listed offence but also any property which may directly or laterally be deducted or acquired as a result of any felonious exertion related to the listed 2 offence.” The requirement for an “explanation” to define what is meant by “proceeds of crime” still raises the question of whether or not it will have a retroactive impact.

● From a list of six statutes at the beginning, the PMLA currently includes “scheduled offences’ ‘ from thirty more statutes. There is a growing concern that adding less serious offences could undermine PMLA’s core purpose. The ED filed 1067 cases using the PMLA between 2012 and 2018. Only 13 people had been found guilty under the PMLA in 9 cases as of December 2019. These numbers demonstrate the need to simplify the statute’s implementation and give major offences more attention.

● All actions under Sections 50 (2) and 50 (3) are presumed to be “judicial processes” under Section 50 (4) of the PMLA, as defined by Sections 193 and 228 of the Indian Penal Code. Since ED proceedings are now considered “judicial proceedings,” any statement made prior to ED may be used as support. The general norm stated in Section 25 of the Substantiation Act, which states that confessional remarks made to a police officer are not acceptable as substantiation in a court of law, is not supported by this, nevertheless.

● Section 71 provides an overriding effect to PMLA, nevertheless, it is important to remember that the Supreme Court stated in Tofan Singh’s decision that special legislation must include respectable protection concerning the admissibility of confessional remarks The authority of these specialised investigating organisations that focus on economic crimes has been contested by nearly 200 applicants. Since 2014, the earliest petitions have been pending.

EFFECTIVENESS

Money laundering is regarded as essential to the efficient running of global and organised crime. However, money laundering has an impact on the social, political, and fiscal health of a nation. One of the profitable outcomes of money laundering was the undermining of the legal private sector, another was the undermining of fiscal label integrity, a third was the loss of control over profitable policy, a fourth was profitable deformation and insecurity, a fifth was the loss of profit, a sixth was the traps of privatisation sweats, and a seventh was a threat to one’s reputation.

The PMLA has been made severe enough to address the threat of money laundering that results from contaminated wealth acquired via illegitimate means, notwithstanding some obstacles and legal difficulties. Many organisations, including the RBI, SEBI, banks, and others, have been enlisted to spread information about these illicit practices. The power granted to the police by the PML Act is another matter that needs to be addressed. This Act provides a check on the power of the police, just like numerous other pieces of Indian legislation. Sections 44(b) and 45(1)(A) of the PML Act categorically subordinate the role of police officers by granting the powers to make complaints and to investigate offences under this Act to the authorities designated by the Central Government, much like a confession made to a police officer or while in the custody of a police officer has no value in the eyes of the law and it cannot be proven against the accused (Sections 25 and 26 of the Indian Evidence Act, 1872, respectively).

In a case moving before the top court, the AG stated that 4,850 cases have been filed under the PMLA, 2002 since this act’s introduction. The strong framework for risk-based selection of the cases for investigation in India accounts for the country’s low case registration rate. The Directorate of Enforcement is concentrating its attention on cases involving high-value proceeds of crime and cases involving serious predicate offences involving terror financing, narcotics, corruption, an offence involving national security, etc. It is pertinent to note that the FATF recommendation does not stipulate a threshold for the selection of cases for investigation under the PMLA.

CASE LAWS

● Nikesh Talwar Shah vs. Union of India¹ – The issue of giving bail to persons who were denied bail by the court in accordance with Section 45 of the PMLA, 2002, was addressed in this case. The petitioner in this instance filed a writ petition because his fundamental right had been violated. When someone was arrested and subsequently applies for bail, the court follows a twin-condition policy for granting bail, which is discriminatory in nature. However, when someone has applied for anticipatory bail—bail before a trial has even begun—the court grants them bail. In this case, the Supreme Court overturned the discrimination and asked that the applicant re-apply for bail in the same court.

● ED vs. A. Raja² – The 2G fraud case is the infamous name for this situation. With the opening up of the investment market in 1991, numerous private sectors stepped up to facilitate and make investments in the market. To ensure effective regulation, the government established a number of acts and directives. However, the CBI accused a few employees of using a shortcut when registering their telecommunications-related enterprises. A. Raja, who served as the department’s minister at the time, was also charged with violating the Prevention of Money Laundering Act of 2002 by accepting bribes and distributing a letter of intent to a number of private companies for the purpose of granting these companies licences for unified access services. However, the court did not find them guilty, and it ordered each of the defendants to pay Rs. 5 lacs along with a surety.

CONCLUSION

Therefore, it is evident that efforts to combat money laundering have advanced beyond the early stages of crimes related to drugs or terrorism. Additionally, the fight against money laundering has continually pushed for the broadest possible scope of predicate offences to be included in domestic laws. Money laundering has been defined and understood in a more comprehensive way that no longer only requires the projection of funds and the use of clean assets. According to the international mission, every activity that has anything to do with the proceeds of crime should be made illegal.

CITATIONS

1. W.P. (Cr) 67 of 2017

2. ECIR/31/DZ/2010

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

INTRODUCTION

DNA (deoxyribonucleic corrosive) is the most essential hereditary material tracked down in the body cells of every single person. It decides the way of behaving, human and body character of a person. It is fundamentally a heredity material in people that no two individuals (other than indistinguishable twins) share.

CONCEPT OF DNA TEST

DNA profiling is not another term for Indian Criminal Investigation, however unquestionably of course less one. DNA tests are permissible in Indian courts and throughout the time it has been created to a decent degree of precision. DNA (Deoxyribonucleic corrosive), otherwise called the structure block or hereditary outline of life, was first depicted by the researchers Francis H. C. Kink and James D. Watson in 1953. The example of the mixtures that comprise the DNA of a singular living being decides the improvement of that person. DNA is similar in each cell throughout a singular body, whether it is a skin cell, sperm cell, or platelet.

Except for indistinguishable twins, no two people have a similar DNA outline. DNA examination, or DNA profiling, looks at DNA found in actual proof like blood, hair, and semen, and decides if it very well may be matched to DNA taken from explicit people. DNA examination has turned into a typical type of proof in criminal preliminaries. It is likewise utilized in common suits, especially in cases including the assurance of Paternity of Identity by the Supreme Court of the United States in Maryland v King. The approach of DNA innovation is one of the main logical headways of our time. The maximum capacity for utilization of hereditary markers in medication and science is as yet being investigated, yet the utility of DNA distinguishing proof in the law enforcement framework is as of now undisputed. Starting from the principal utilization of scientific DNA examination to get an attacker and killer, the courts have recognized that DNA testing has an unparalleled capacity to both, excuse the wrongly sentenced and to distinguish the blameworthy. It can essentially further develop both the law enforcement framework and police examination rehearses.

DNA TECHNOLOGY IN THE ADMINISTRATION OF JUSTICE

DNA innovation has been utilized in both Civil and Criminal matters. While validating proof and Disaster Victim Identification expected in Criminal cases, DNA innovation has been utilized. DNA can likewise be utilized to recognize hoodlums with staggering precision where natural proof is required. In Civil issues, DNA innovation is utilized to decide the hereditary, blood connection, support of a kid, and family relationship. DNA for the most part works or is utilized in two ways to tackle violations. At the point when a suspect is distinguished and his example or DNA will be contrasted and the proof got from the crime scene, this correlation makes it simple to decide if the suspect had carried out the wrongdoing or not. Another case comes, where the suspect has not been distinguished and the organic proof got from the crime scene would be contrasted and the guilty parties’ profiles in DNA data sets which assist in recognizing the wrongdoer.

In criminal matters, DNA profiling has not just assisted in breaking cold cases and connecting violations with lawbreakers yet additionally supports the ID of casualties generally speaking. As a rule, the casualties are being killed with an overall viewpoint of concealing the personality of the lawbreaker and because of durable examination methods, it becomes hard to interface recuperated body stays with the person in question.

In such circumstances, DNA profiling ends up being a curse. It likewise aids in further demonstrating the culpability or blamelessness of the denounced yet treating the DNA proof might lead the case in a misguided course because of which courts are left with no other choice but to give the advantage of the uncertainty to the charged. An amazing occurrence for this was Santosh Kumar Singh v State through CBI, otherwise called the Priyadarshini Mattoo case.

The altering of proof alongside the terrible examination was the greatest obstacle looked at by the arraignment in the preliminary. The cherry on top was that the DNA test demonstrated assault however again that was being altered during the examination which makes an advantage of uncertain circumstances for the blamed person. Regardless of many confirmations inclining toward the prosecution, the trial court vindicated the charged individual expressing that CBI had bombed on a few counts specifically disguising from the court that the confirmations gathered by it, were manufactured for the denounced. Likewise, an appropriate system for leading the DNA test denies the court a valuable chance to judicially audit it.

DNA AND FAIR TRAIL

DNA is one of the most remarkable examination apparatuses with a special case of indistinguishable twins which implies that the DNA of every individual contrasts from one another and no two individuals exist having a similar DNA. DNA has excellent evidential worth. On the off chance that any DNA proof has been gathered from the crime location, it lays out an immediate connection with the guilty party and can wipe out the different suspects from doubt. For instance, during an assault, natural proof like semen, blood, skin cells, body hair, and so on, can be left at the crime location or the victim’s body. The organic proof got from the crime location would be contrasted with the wrongdoers’ profiles in DNA data sets which assist in distinguishing the guilty party. This is the way DNA innovation help in a fair preliminary in rape cases as well as in cases connected with hijacking, aggressive behavior at home, murder, and DNA innovation assist Civil courts with settling the question matters of common cases.

The compelling DNA as an evidential apparatus helps in looking at and dissecting the disposal of suspects having legitimate admittance to the crime scene at the hour of the wrongdoing. At the point when DNA has been received from the crime scene, it can begin taking out the suspects approaching the crime scene yet their DNA isn’t coordinated with the organic proof gathered from the place and that is the way this DNA innovation helps in a fair preliminary by segregating the blameless individuals who were available at the crime location however not having any connection with the wrongdoing.

TOLERABILITY OF DNA PROOF IN PATERNITY QUESTION CASES

In India, at first, judges took a moderate view concerning the evidential worth of DNA innovation in settling the maternity and paternity question cases. The Indian legal executive frequently deals with issues in responding to an inquiry for example while concluding fatherly obligations, the natural rate ought to be given need over the friendly rate. DNA rate testing can give proof that shows that an individual has a blood connection or natural association with a departed individual or can assist an individual with involvement in the suit.

Section 112 of the Indian Evidence Act, 1872 says that assuming a kid was brought into the world during the continuation of a substantial marriage between his mom and any man or on the other hand on the off chance that a youngster was brought into the world inside a time of 280 days after the disintegration of marriage and the mother stays unmarried during that period, it is the convincing verification that the kid is a genuine offspring of that man, until and except if the man shows that he had no admittance to the mother of a kid during the concerned period. Presently, DNA testing can be utilized to decide the paternity of the youngster and can without much of a stretch supplant this segment, as DNA testing can undoubtedly sort out the authenticity of that kid. Be that as it may, DNA testing decides the natural rate, as opposed to the social rate.

HINDRANCES TO THE EXECUTION OF DNA TECHNOLOGY

Assuming one examines the plenty of cases over utilization of DNA proof one can be guaranteed that there are a few misgivings about the manners by which such touchy information can be utilized in the Indian situation. This carries us to examine the central issues which have hindered the execution of the utilization of the innovation as well as the impending DNA Bill. A portion of the hindrances in execution have been expressed underneath.

First is the autonomy of the scientific organizations, which, most importantly, is depicted under the policing and the particular Home Department. Without having sufficient autonomy, there are higher possibilities of proof altering and misusing. Furthermore, the measuring labs don’t have the labor required or in any event, working infrastructure. Many specialists are expected for legitimate examination, individuals for conveying the advancement between the specialists, and in particular, between the criminological wing and the police. Thirdly, the police and the research officials must be completely prepared for taking care of the crime scene and gathering the proof. Right now inferable from an ill-advised or even absence of essential preparation required, individuals sent at the crime location obliterate the crucial confirmations which might have demonstrated so assuming it had been gathered by an authority prepared, as the person in question would have applied the fundamental information with ability and diligence. Lastly, and above all, India needs a devoted regulation that can legitimize the utilization of DNA proof for examinations, and the equivalent will not be exclusively left for the court to decide. Detailed regulation is probably going to cure all the previously mentioned limitations.

Notwithstanding the previously mentioned viewpoints, there lie more prominent difficulties because of which the courts also are reluctant to involve scientific proof in a criminal examination. Some of them, as indicated by the courts are amateurish direct of actual proof, including ill-advised assortment, or not gathering the proof, protecting the proof, no upkeep of chain of authority, as well as careless and postponed dispatch of actual proof for logical investigation. Different reasons incorporate not sending a charged person for medico-lawful assessment, non-lifting of fingerprints by the researching official (IO), or when the bloodstained human item had been sent for synthetic assessment without covering a similar following the capture of something similar. The courts are normally constrained to dismiss the report. There are additionally specialized lacunas that lead to altering of the proof like the postponed review of shows, non-notice of blood bunch in serologist’s report, ill-advised tests, and so forth.

LIMITATIONS OF DNA PROFILING

The presentation of DNA profiling has represented a few serious difficulties to the legitimate privileges of an individual, for example, the Right to Privacy and Right against self-implication which is the reason its been declined as proof by the Courts in some cases. Additionally, the acceptability of the DNA proof under the watchful eye of the court generally relies upon its exact and legitimate assortment, safeguarding, and documentation which can fulfill the court that the proof which has been placed in front of it is solid.

There is no particular regulation present in India that can give specific rules to the examining organizations and the court, and the method to be embraced in the cases including DNA as its proof. Nonetheless, a few arrangements permit the assessment of an individual blamed for assault by a clinical expert and the clinical assessment of the assault casualty separately yet the tolerability of these confirmations has stayed far-fetched as the assessment of the Supreme Court and different High Courts in different choices stayed clashing.

Judges don’t prevent the logical exactness and decisiveness from getting DNA testing, yet at times they don’t concede these confirmations on the ground of legitimate or established restriction and now and again the public strategy. The Patna high court, in Rajiv Singh v. The State of Bihar alluded to OJ Simpson case and noticed the potential mistakes at different stages engaged with DNA technique and noticed:

One of the enduring impacts of the OJ Simpson case will probably be a more noteworthy examination by safeguard attorneys of the arraignment’s scientific DNA proof introduced in criminal cases. In the Simpson case, the protection, put the wrongdoing research facility being investigated.

There is no significant question about the basic logical standards in DNA profiling, be that as it may, the ampleness of research facility systems and the skill of the specialists who affirm ought to stay open to request. Although there is a typical agreement among established researchers that DNA profiling can yield results with an extremely high likelihood, the complicated technique of DNA profiling isn’t without issues. At each period of the seven-step methodology recently portrayed, botches and an ill-advised treatment of the DNA test can deliver misleading outcomes which at times can prompt lifelong incarceration or even capital punishment judgment.

Subsequently, the ampleness of lab methods and the capability of the specialists who affirm ought to stay open to request. The assortment of organic proof remains part of the most extreme significance in the scientific examination. The controls or pollution of tests whether volunteer or carelessly may vitiate the master report.

CONCLUSION

It may very well be securely presumed that the Supreme Court is yet to think with point-by-point knowledge about the sacred legitimacy of different measurable devices for uncovering reality during examination even though there have been many cases whose conviction and guiltlessness depended on the DNA proof. To make the innovation of DNA profiling more dependable, the authorities and court need to concoct specific rules or regulations so there will be lesser messed-up examinations as are the possibilities of the unnatural birth cycle of equity.

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

---

CITATIONS

1. Khyati Jain, ‘Challenges and concerns in Admission of DNA evidence in India: With special reference to DNA Technology (Use and Application) Regulation Bill, 2019’ (SCC Online Blog, 6 April 2022), https://www.scconline.com/blog/post/2022/04/06/challenges-and-concerns-in-admission-of-dna-evidence-in-india/ ( last accessed on 27 June, 2022 ).
2. Maryland v King 133 S.Ct. 1958 (2013).
3. Santosh Kumar Singh v State, (2010) 9 SCC 747.
4. V.R. Dinkar,  Forensic Scientific Evidence: Problems and Pitfalls in India, 3 International Journal of Forensic Science & Pathology, 79, 80 (2015).
5. Rajiv Singh v. The State of Bihar,( 2010) 9 SCC 747.
6. People of the State of California v. Orenthal James Simpson, 28 Loy. U. Chi. L. J. 461 (1997).

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