Indian political system

Politics in any country involves the ruling party and the opposition. Usually and ideally, political parties are formed based on the same line of thinking and ideology. The left and the right are the two terms usually used by media and political commentators to define the group of people with the same ideological bend of mind. The lefts are usually considered liberal, secular and pro-government ideologies while the right is considered majoritarian, pro-poor and rebellious in nature.

These definitions are not defined anywhere in the constitutions. of any governmental organisations, but are the terms coined by journalists, authors and commentators. For example, in the USA, the democrats are known to be left-leaning while the republicans are known to be right-leaning, in UK Labour party is seen to be right-leaning ideology and the conservative party having a left-leaning ideology. The case is similar in India as well, with Congress having left-leaning ideologies while BJP having right-leaning ideologies.

And for a perfect democracy to work, both the ideologies are necessary. A mature democracy is one where there is a fine demarcation between the two ideologies, but in countries like India, these demarcations are blurry and the left and right ideologies superimpose on each other often number of times.

The political system is built in such a way that, irrespective of what ideologies, policies, processes, institutions, strategy, behaviours, classes or diplomacy that a political party follows, the core vision and objective lie in the development of the country.

But, like always, not everything that glitters is gold, is it not?

Politics is called a dirty game and rightly so, especially in a country like India. Greed, corruption, injustice, bigotry and hatred are some of the very few terms that are usually associated with Indian politics. In this essay on Indian politics, we will not be able to talk about it all, but we will try to touch upon each of the issues.

Politicians usually choose their parties, not because they believe in the ideologies of the party, but because of the winnability quotient in the elections. Elections, unfortunately, is all about money power and muscle power. The ideologies and promises are just the sugar coating that politician do to get votes from people. But even if they follow the ideology of a party, the ideologies itself is flawed and broken from its core. Divide and rule policy followed by the British to rule India is followed by today’s politicians to get votes. Political parties, across the spectrum, try to divide people of India on the basis of religions and class. This is usually called by the term communal polarisation. The gullible voters play into the hands of these political parties and belive the fancy promises they show in the name of development. In a good democratic system, a common man should also be well aware of their rights and responsibilities as a law-abiding citizen.

A good politics consists of the government and its opposition, with both of them working for the development of the country, in their capacities. The opposition parties questions criticise and demands accountability from the ruling party so that the ruling regime is kept in check. The system works fine in its idealistic form. But political parties, with their greed for power, forget their true responsibilities and indulge in dirty games to grab power at any cost. That cost is borne by the common man of the country.

According to our Constitution, India is a “sovereign secular socialist democratic republic.” It has 28 states and seven Union Territories. With a population of approximately 112 crore, India happens to be the largest democracy in the world. Indian polity is a multi-party democracy, based on the adult franchise system of voting. That is any Indian citizen of 18 and above, who is not debarred by law, can vote in the Indian elections, at national, state and local levels.

India is a parliamentary democracy and a federal parliamentary representative democratic republic, where the Prime Minister is the head of government. He or she should be chosen by the MPs (Member of Parliaments) of the ruling party or the coalition that comes to power. The Vice President has to temporarily assume the role of President in the event of the death, resignation, or removal of the President, until a new President is chosen by the electoral college. The Vice President of India may also act temporarily as President, during the absence or illness of the President. The Vice President of India is also the Ex-officio Chairman of the Rajya Sabha. Mohammad Hamid Ansari is the present Vice President of India.

Executive, Legislature and Judiciary

With the Union Government and State Governments wrest the executive power, while the legislative power is vested on the Union Government and the two houses of Indian Parliament- the Lok Sabha and Rajya Sabha- and also the State Government and two state legislatures-Vidhan Sabha and Vidhan Parishad. However, here it deserves a mention that only five of India’s 28 states have Vidhan Parishad or Legislative Council, which is also known as the upper house of state legislatures, along with the Vidhan Sabha. The rest of the states don’t have bicameral legislatures, and only have Vidhan Sabha or Legislative Assembly. Each state also has a Governor, who is formally appointed by the President of India. The role of the Governor is somewhat similar to that of President in the national level; he is a titular head of the state in normal circumstances, but can exercise some powers when directed by the Union Government.

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Constitution of india

Rules are important whether in sports or life. A game of cricket or football can’t be played without rules.

A game with no rules in force will finally end in chaos and disturbance. So is true with the society and the country as well.

A country also needs to be governed by definite rules, that all of its citizens and government institutions must follow, to maintain order and discipline.

There has to be a definite way in which democratic elections are conducted; the powers of the judiciary, executive, and the legislative; powers vested in states and union; fundamental privileges are given to the citizens, etc all are defined in the constitution.

When the Indian Constitution did come into effect?

What had been the Dominion of India became the Republic of India after the constitution came into effect. It replaced the Government of India Act 1935 as the principal governing document of the country.

Dr. Babasaheb Ambedkar, the Chairman of the constitution drafting committee, presented the draft constitution to the then President of India, Dr. Rajendra Prasad on 25th November 1949, subsequently it was adopted by the constituent assembly on 26th November.

The constitution of India came into force on the day when the final session of the constituent assembly was held on 26th January 1950.

Salient Features of Indian Constitution

The constitution of India has several salient or distinguishing features that separate it from the leagues of other constitutions around the world. The most distinguished and significant salient features of the Indian constitution are defined as under.

Longest handwritten constitution

The constitution of India is one of the lengthiest and most detailed constitutions of the world. The English version of the constitution has 117,369 words contained in 444 articles in 22 parts, 12 schedules, and 115 amendments as of 2020.

The lengthiness of the Indian constitution was necessitated by the diversity of India. The constitution became larger in order to accommodate several demographic differences of the state of India.

Parliamentary form of government

The constitution of India stipulates a bicameral legislature, that is, the power and authority are shared between two separate houses, in this case, Lok Sabha and Rajya Sabha.Opposite of bicameral is a unicameral legislature where only one house is present. In a bicameral setup debates and discussions play an important role in the passage of a bill.

A rigid and flexible constitution

The constitution of India is neither completely rigid nor flexible. A constitution is said to be rigid when it is difficult to make amendments, like the constitution of the United States.On the contrary, the constitution of India has been amended 103 times since it came into force, but all the amendments have to pass through definite tests and mandatory requirements.

The constitution of India is therefore considered a perfect blend of rigidity and flexibility.

The preamble to the constitution.

The preamble of the Indian constitution is its introductory paragraph that declares the constitution’ss fundamental philosophy and purpose.

It declares India to be a sovereign, socialist, secular, and democratic republic. It also states some objectives like, securing justice, liberty, and equality to all the citizens and promoting fraternity in order to maintain national unity and integrity.

Quasi-federal constitution

The constitution of India is quasi-federal because it combines the features of both the federal government and the unitary government.

The Supreme Court of India has also stated that India has a federal structure with a strong bias towards the center.

Federal features of the constitution are – supreme law, a bicameral legislature, dual government policy, a written constitution, a rigid constitution, independent judiciary, and revenue sharing.

On the other hand, unitary features of the constitution are – single constitution applicable to the union and states, unequal representation of states in the Rajya Sabha, the unequal division of power between the center and states, states depend on center, non-rigid constitution, unified judicial system and proclamation of emergency.

Fundamental rights and duties

The constitution of India describes the fundamental rights and duties of all the citizens of India irrespective of the states, region, religion, or ethnicity.

The seven fundamental rights provided by the constitution to every citizen are – right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, and right to constitutional remedies.

Fundamental duties are enshrined in the constitution to promote integrity. Some of the important fundamental duties are to uphold the sovereignty and unity of India, to preserve rich heritage, to safeguard public property, etc.

Directive principles of state policy

The directive principles of state policy are contained in Part IV of the Indian constitution. These are the sets of instructions meant for the states.

Basically, they constitute the instructions to the legislature and the executive that are mandatory to be followed whenever the state frames new legislation.

Adult suffrage

Adult suffrage means that any Indian citizen irrespective of gender, caste, or any other difference, has a right to vote to elect the government, provided that he or she is above 18 years of age.

This right is guaranteed by Article 326 of the constitution. Initially, the age of voting was 21 years but after the 61st amendment also called the Constitution Act 1988, it was amended to 18 years. However, the right to vote doesn’t apply to non-citizens, persons with unsound minds, or criminals.

Independent judiciary

The constitution of India has several provisions to ensure that the judiciary remains unbiased and independent.The Supreme Court of India acts as the caretaker of the constitution and ensures that its provisions are followed.Also, the courts at the state and district levels are out of the influence of bureaucracy or political governments.High courts in states directly function under the Supreme Court.

Secular State

The term ‘Secular’ in the constitution was added by the 42nd amendment in the Preamble.It was included to promote peace and harmony among different religious groups of India. Every citizen of India is free to follow the religion of his/her choice and it is obligatory for the government to ensure that his/her rights and privileges are protected.

Single Citizenship

Part II of the constitution from Article 5 to Article 11 deals with citizenship. According to it, all the citizens of India enjoy equal rights and privileges across the complete territory of India.In whatever state or Union Territory of India you may travel, you will enjoy similar rights and privileges as enjoyed in your home state.

Importance of Indian Constitution

The constitution is the supreme law that governs the country. The three pillars of democracy – the executive, the legislature, and the judiciary, functions as per the provisions provided in the constitution.

It guarantees the fundamental rights and duties of the citizens and ensures that India remains a secular state, which is important considering its religious and cultural diversity.

Without the constitution, the whole democratic setup would just crumble and rights and privileges could not be exercised.India is one of the world’s most successful democracies today because its people and the government religiously follow every word of the constitution.

Conclusion

At the core of the constitution is an idea to generate an equal and civilized society that is governed by principles and definite rules.

Like every game has its rule book, similarly, the constitution of India is also the rule book that dictates all the rules, regulations, powers, and privileges to effectively govern the country.

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5 Point Something on Judicial Review and Judicial Activism

  • INRODUCTION

In the enforcement of law, the Judiciary is in charge of three roles, firstly, as an interpreter of the constitution to eliminate any ambiguity in the language of the provisions given in the constitution; secondly, as the protector of fundamental rights which are guaranteed by the constitution to its people; and thirdly, to resolve the disputes which have been appealed after being heard in the lower judiciary.

In India the judiciary is the only authority that interprets the Constitution. By this it is meant that the Judiciary acts like the protector of the Constitution. It prevents the harm done by the executive and legislative. It provides the general public their rights that have been prescribed in the Constitution under the Directive Principles of State Policy. Judicial Review is the power of judiciary to review the laws and determine their validity. Judicial Review has not been defined in the Indian Constitution. It does not direct judicial system to practice the judicial review but it is deep rooted in the constitution itself. For instance, Article 13 states that ‘all laws in force in the territory of India before the commencement of this Constitution, in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void.’

In this sense ‘judicial activism’ is treated as a necessary consequence of judicial review. Assertion of judiciary and its powers is judicial activism. The Indian courts have achieved readiness in exercising their power to cherish the values of constitution to an extent that Judicial Review has taken form of Judicial Activism. In other words, Judicial Activism is bringing justice to the doorstep of people, especially who are vulnerable. It is not something that has been invented by the courts but the lawyers, i.e. the activists themselves. It has its roots in the Article 21, ‘Right to life and liberty of a citizen’. Precisely, it is a philosophy which involves the personal views and understandings of a judge with regard to a statute. It is activism regarding a public policy and its benefits instead of constitutionalism.

  • PROS AND CONS

JUDICIAL REVEIW

PROS

  • It offers a route to justice for those adversely affected by public body decision making
  • It performs an essential tasks in that it allows the courts and judiciary oversight of government decision making, be that central or local government, or parts of the state that implement government policy.
  • Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the constitution. If two laws conflict with each other, the Court must decide on the operation of each.

CONS

The concept of Judicial Review does not consist of negative aspects but here are some limitations of the Judicial review.

  • Only the procedure followed by the authority in reaching the decision can be checked not the decision. The court is only allowed to check and limit the procedure not the decision.
  • The power is delegated to superior courts only, i.e. Supreme Court and High Courts.
  • The court cannot be involved in policy matters and political doubts unless absolutely necessary.
  • It is temporary in nature. Law once passed may become unconstitutional with changed situation; this may create vacuum in legal system. Hence, it can be said that directions given by court would be binding only till legislation is enacted.
  • The court can interpret and invalidate a law but it cannot itself make laws.

JUDICIAL ACTIVISM

PROS

  • It provides a system of checks and balances to the other government branches. Judicial Activism is a delicate exercise involving creativity. It brings out required innovation in the form of a solution.
  • Judicial Activism provides judges to use their personal wisdom in cases where the law failed to provide a balance.
  • Judicial Activism also provides insights into the issues. The reason why this is a good thing is that it shows the instilled trust placed in the justice system and its judgments.
  • Many a time public power harms the people, so it becomes necessary for the judiciary to check misuse of public power.
  • It provides speedy solutions where the legislature gets stuck in the issue of majority.

CONS

  • Judges can override any existing law. Hence, it clearly violates the line drawn by the constitution.
  • The judicial opinions of the judges become standards for ruling other cases.
  • Judgment may be influenced by personal or selfish motives. It can further harm the public at large.
  • Repeated interference of courts can erode the faith of the people in the quality, integrity and efficiency of governmental institutions.
  • Courts limit the functioning of government, when it exceeds its power and to stop any abuse or misuse of power by government agencies.
  • PRECEDENT CASES

JUDICIAL REVIEW

  • Indira Gandhi vs. Raj Naraian
  • Marbury vs. Madison
  • Chandra Kumar vs. Union of India and others

JUDICIAL ACTIVISM

  • Keshvanand Bharati vs. State of Kerala
  • Minerva Mills vs. Union of India
  • SP vs. Union of India
  • DIFFERENCE BETWEEN JUDICIAL REVIEW AND JUDICIAL ACTIVISM
Judicial review is a through which a court can review an administrative action by a public body and safeguard declarations or orders. Judicial activism means judicial rulings based on personal or political considerations rather than on existing law. 
The power of Judicial Review comes from the Constitution of India itself (Article 13). The authority of judicial review is suggested to protect and implement the fundamental rights defined in Part III of the Constitution. Judicial Activism also has its roots in the Constitution of India. It has its roots in the Article 21, ‘Right to life and liberty of a citizen’.
Judicial review is concerned with the power of the Court.Judicial activism is concerned with the manner in which the power is being exercised.
Power of judicial review follows from various provisions of the Constitution of India itself like Articles 13(2), 32, 226, 227,136,141 etc.Judicial activism on the other hand is more to do with the attitude of a judge handling the case and is thus an attribute of the personality of the judge other than any provisions in the legal system.
   
  • SUMMARY

It can be said that judicial review and judicial activism is a highly developing and complex concepts. Judicial review has its root long back and its scope and extent varies from case to case. The growth of judicial review is the inevitable response of the judiciary to ensure proper check on the exercise of public power. Growing awareness of the rights in the people; the trend of judicial scrutiny of every significant governmental action and the readiness even of the executive to seek judicial determination of debatable or controversial issues, at times, may be, to avoid its accountability for the decision, have all resulted in the increasing significance of the role of the judiciary. There is a general perception that the judiciary in this country has been active in expansion of the field of judicial review into non-traditional areas, which earlier were considered beyond judicial purview. The judges have a duty to perform, which is even more onerous to keep the judicial ship afloat on even keel. It must avoid making any ad hoc decision without the foundation of a juristic principle, particularly, when the decision appears to break new grounds.

Judicial Activism is an obligation to be shouldered and not to be shirked by the judiciary when occasion and opportunity arise and demand the same. Otherwise, the judiciary will be failing to redeem the obligations to the people in accordance with the letter and spirit of the Constitution.

Judicial review has sound justification in the function of upholding constitutional supremacy. The supremacy of Constitution itself is embedded in convincing facts of public confidence. The role of judiciary is that of sentinel qui vive (on guard). The role of judiciary in the domain of review of legislation and administrative action has reinforced faith of people in good law and good governance. Judicial review and judicial activism has been treated as the most essential function of the judiciary to set right the lapses in all the administrative actions in the interest of justice.

Law Commission of India

Law is a continually evolving field and changes according to temporal and societal changes. Law making is an arduous task since it has to ensure the welfare of diverse  people and in addition, not affect the rights and liberties of certain sections. The Law Commission of India is, by nature, an executive organization, established by an order of the Government of India. Performing the important functions of reforming laws, it consists of experts, jurists, judges assigned by the Government. The goal of Law Commission of India is to ensure peace, security, and justice by ensuring the laws are fair and just. Also, the Law Commission of India works as an advisory organ to the Ministerial Department of Law and Justice. Every Law Commission lasts for five years. Law commission of India works as think tank and performs the functions of reviewing laws and suggesting recommendations or reforms to be introduced in the existing laws. 

Legal reforms, in the past, have been suggested by people like M.C Setalvad, Justice H.R Khanna, Justice Gajendradhakar who have headed the law commission. In India, the Law Commission was set up to examine laws and suggest reforms. It was given the task of legal reform. The formation of this commission ensured that the organs of the government could not pass laws arbitrarily. Laws passed by the Government are scrutinized and checked if it is really beneficial for people or not. It was constituted in the nineteenth century during the colonial government. In independent India, the first law commission was established in the year 1955. Its term was for three years. Twenty two commission have been established after independence. 

Composition

The Law Commission of India acts as advisory body to the Government of India, and the Ministry of Law and Justice. The Law Commission of India has no statutory force and legal status. It is usually headed by the retired judge (Supreme Court) or by the Chief Justice of the High Court. It consists of four full time officers. This includes a member secretary and the Chairman. The ex officio members of the Commission are the legal and legislative secretaries of the Ministry of Law and Justice. The Law Commission following the order of the Government of India or by virtue of its own position examines law with regards to its applicability and drawbacks. Then, the commission suggests certain reforms or enactment of a legislation. It undertakes researches related to laws and suggests reforms in the judicial system. 

Functions and Powers

The Law Commission of India consists of approximately twelve staffs, who are researchers, possessing adequate experience. The commission organizes meeting regularly to discuss the findings or for the purpose of presentation of reports. The initiation of several projects also takes place in the meetings. The committee then fixes on certain issues and starts working on them. The meeting also results in an outline or framework of research. The proceedings take place according to the framework. The members then unanimously agree on certain aspects and a smooth progress of work is ensured. After this process, the paper is prepared and presented before the members of the committee. The circulation of the prepared paper among the members takes place. The members then submit their opinions, views and comments regarding the paper. The overall view is also assessed through a questionnaire, which is circulated among the members asking their reaction and feedback. It aims to widen the area of feedback and reaction by sending it to certain professionals, academic institutions and other expert for the process of consultation. All this happens prior to submitting the proposals for legal reforms. As an addition, workshops, webinars, seminare are organized for the purpose of knowing the comments of critics and general view about the suggested reforms.

After the process of data collection, the staff members of the Commission involve in the process of evaluation and organization of data. The collected data is organized in a chronological order for the purpose of appropriate introduction in the report. The overall report is prepared by one of the Member Secretary or the Chairman of the Commission or any other members. After the completion of this process, the prepared report is presented for discussion before the meeting and is discussed by all the members of the committee. The findings and summary are analysed. Then, the report is confirmed and a summary is prepared. After the finalisation of the report and summary, the law commission has the option to start working on the preparation of a draft. The draft regarding reforms, amendments or a proposal for a new bill will be attached to the overall report. The finalised report then is sent to the Government of India for approval. 

The role of the Law Commission of India is a significant one in the field of legal reform. In the past, it has been led by able personalities like M.C Setalvad, Justice H.R Khanna, and Nani Palkhivala. The commissions headed by these people have submitted suggestions and reforms of great importance. The system of fast track courts, commercial courts expansion, electoral reforms, the introduction of anti-defection law, reforms as to many legal provisions related to criminal and civil law are but a few examples of the achievements of the Law Commission of India in the past. More often than not, the post of the Chairman of the Law Commission is offered to the retired judge of the Supreme Court or the former Chief justice of High Court. The Government of India is responsible for making such decisions. In the past, the governments have been criticised for showing partiality by many people. The government also has been criticised for not implementing the reforms suggested by the law commission, for not granting the commission a statutory status, for not providing a back up research team. Some of these also have contributed in the decreasing quality and less implementation of the reports submitted by the Law Commission of India recently.

The society, over the years, has become more complex. In this complex society, the role and functions of a government have increased manifold. The government has become a positive character to ensure public welfare. This has led to increase in power and responsibility in the hands of the executive organ of the government. As a result of these changes, the relationship and interaction between people and executive organizations has increased and has become complex and complicated. These organizations or bodies have the ability to influence the rights of people. Therefore, there is a need to formulate processes and techniques to deal with the citizens and find appropriate solutions to new problems. Another major concern for administrative law is to monitor the usage of discretionary power by these bodies. These bodies are also more flexible than other organs and their functioning has to be monitored carefully. Time and again, the law commission reports too have talked about the growth and need for administrative law in the current society.

Drawbacks

The work carried out by the Law Commission of India is an important one. It was given a lot of importance by legal experts in the past. However, there are certain drawbacks in the working and the system of the Law Commission. One of a major drawback for the commission is, though it is a national body, it lacks proper composition. Issues like no defined set of eligibility criteria for the posts like chairman, secretary, and other staffs. The commission also has no defined functions, leaving all important appointments and decision to the discretion of the government. The Law Commission’s terms of reference are constituted every time during its appointment. While other commissions are regulated by the Indian Constitution, the Law Commission of India is subjected to casual treatment. Other commissions are regulated by a Charter. It is the central government that decides the appointment of position and generally judges from the Supreme Court and the High Courts are selected for the posts. It is subjected indifferent treatment by the central government. It lacks a statutory status, and needs strict regulations regarding appointment of members and functions of the body. Another problem that the commission faces is lack of finance. The part time staffs of the Law Commission are not paid any salary for their work. The remuneration of other staffs is generally low. The central governments allots the commission less budget, as a result which the commission faces financial issues. It struggles with management due to low funds as the running of the commission requires finance for meeting salary expenses, travel expenses, expenses for research anf other miscellaneous expenses. It requires adequate finance for proper functioning. Another major drawback for the Law Commission of India is the respect the Government pays for the reforms suggested by the body. There are issues regarding the implementation of reforms recommended by the committee. As discussed earlier, the rate of implementation is only forty five percent. The quality of research has increased a lot over the years. The research team of the commission is backed by certain legal centres and educational institutions. The Law Commission of India receives a lot direct and indirect support from these institutions. The commission is let down by the government as the implementation of reforms is poor. There is a strong need for strengthening the Law Commission of India for ensuring better legal reforms.

MEDICAL NEGLIGENCE

Medical Negligence And Law In India - An Analysis - iPleaders

ABSRACT

With the advancement of technology, many incurable diseases are now curable. Not only this but now people live longer than the earlier times as there are several developments in the field of medicine. With the time medicines and technology has changed but one thing that hasn’t changed is Medical Negligence. Even now, when we promise best medications and facility to patients, there are a number of evident cases which bring to our notice the medical malpractice that prevails in the recent times. Every practitioner possessing some skill owes a duty to the one he provides service to. Often, due to the carelessness of the practitioner this duty is breached on his part and as a consequence thereof the consumer suffers an injury/damage/loss.

A shocking fact is that even with advance technologies, cases of negligence haven’t decreased to a noticeable extent. The most vulnerable person in the relation is the patient who expects to get treated but instead suffers a greater loss. In the crucial time of covid-19 pandemic, it is essential to note that the practice can be proved harmful o he citizens of our country. The virus is contagious and can spread from one to another quickly if not brought under control. But the number of increasing cases tells us a different story; it gives us the evidence of poor management and medical facilities. This research paper aims to focus on the concept and cases of medical negligence in light of current scenario of pandemic.

Keywords: Negligence, Medical Negligence, Duty, Liability, Covid-19, Compensation, Injury.

INTRODUCTION

When one person owes duty to the other and commits a breach of the same which results damage to the other, the person is said to commit negligence. Medical Negligence refers to negligence committed by a professional in the field of medicine. A Medical Practitioner at general needs to maintain a standard of care and in case they fail to do the same, they are liable for the damage made. The concept of medical negligence has developed to punish the wrongdoer and bring justice to the person who has suffered loss due to negligent behavior  of the latter. Negligence is punishable under many laws including Tort, Contract Act, Consumer protection Act and the IPC.

By the years, numerous patients have died, had permanent injuries, miscarriage, disablement and more due to the medical negligence of a professional. A patient is a consumer and expects necessary care to be practiced by the professional. However not every harm caused to patient during treatment is punishable or result of a negligent behavior. A professional is liable only to the extent to which the skills of a person in that field are considered reasonable. A doctor is expected to provide services which heal the patient and makes him/her physically fit. He is required to have the necessary skills and knowledge for the purpose and exercise reasonable degree of care. The standard of skills and care depends upon the qualification of the person. A doctor is expected to have more skills than an average nurse may have. Medical practice falls under the ambit of services, the Supreme Court in the case Indian Medical Association v. V.P. Santha explained[1]:

“Services rendered to a patient by a medical practitioner (except where the doctor renders services free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within ambit of service as defined in Section 2(1)(o) of the Act”.

Medical Negligence is a serious issue and has been prevalent irrespective of the time. A person with no knowledge and skills that are required to treat a particular injury or disease is expected to commit negligence. The harm caused can vary from a temporary disability to death of the person. Generally, doctors indulge in activities like wrong treatment, overdose of medicines, carelessness about the health and capacity. If a patient suffering from Hepatitis and Jaundice gets a surgery without getting initial checkup for diseases and gets into even more serious condition that could even result into death if gets more serious, the doctor is liable for the negligence.[2] In such cases the doctors are liable for medical negligence in the treatment of patients and shall compensate or even be punished for the same.

HISTORY

The idea of medical negligence is around many years old. The Babylonian lords Hammurabi present a law against the doctors whose patient loses an eye. The discipline for such acts of neglect was to cut the hand of the doctor or specialist. Indeed, even the Egyptian and Roman law had such comparable arrangements for clinical acts of neglect causing demise or genuine wounds to the patient.[3] During British rule, English custom-based law was presented in the organization of equity in India. Mr. Wheeler, 555 individual from committee, Sea client and boss Justice of choultry in Chennai kicked the bucket because of utilization of wrong prescriptions. Dr. Samuels were attempted and absolved by the fantastic Jury when the Bill of Ignoramus[4] was acquired. Before the presentation of the Constitution of India 1950, countless English standards of law of misdeeds were followed and applied by the Indian courts.

The very first case at any point recorded under English law was in year 1374 against a specialist J. Mert; the opposite party had a physical issue in his hand because of wrong treatment. In USA, the primary case was recorded was in the year 1794, the case is known as Dr. Cross v. Guthrie[5]. For this situation patient’s significant other sued Dr. Cross, a doctor after the patient passed on because of postoperative mastectomy (bosom expulsion medical procedure) inconveniences three hours after activity. The remuneration of 40 pound was granted to defendant party.

In Kautilya’s Arthashastra, the laws relating to weight and measures at that time are depicted. Similarly, Yajnavalkya has given his views on weights and measures and adulteration of food, punishments with regard to it in Yajnavalkya samhita. Main provisions of Yajnavalkya samhita cover transactions related to sale and purchase. It also has regulations related to the sale of sample. He took into account the hard conditions faced by the purchaser and framed rules for their protection by giving them time to judge the utility of goods purchased and giving them the right to return goods. One fine elaborative mechanism of pricing policy and profit ratio charged by traders on the sold goods has been prescribed in the samhita. He also developed a concept of constructive theft. It includes the widespread deceitful practice of goldsmiths. The malicious practices ornament makers were prevalent in the ancient times as well and in order to protect the consumers from the same he (Yajnavalkya) prescribed certain standard norms. These norms included rules regarding ornaments so that the goldsmith cannot claim on great wastage and in case they do, they will be punished for the same.

The Indian common law on negligence basically is the appointed authority made custom-based law followed in England for quite a long time. In the lead of hearings, the law considers an assortment of levels of capability, and in this manner an assortment of guidelines, as long as the level of skill which can be normal from any given proficient is promptly obvious from his specific capability for example that he is an overall specialist as opposed to a pro. Be that as it may, each expert must accomplish a satisfactory degree of basic competence. When assessing whether or not a professional has been negligent, the courts will normally use as their benchmark the common practice within the relevant profession. However, where they consider that a profession adopts an unjustifiably lax practice, they may condemn the common standard as negligent.[6]

MEDICAL NEGLIGENCE

Meaning of Negligence

Eminent jurists and judges have exclaimed that there are many meanings to negligence. The Apex Court in the case of Jacob Mathew v. State of Punjab[7] stated,

“Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.”

In usual meaning, negligence means carelessness towards something but in legal language it is the breach duty to exercise a certain standard of care that has resulted in some sort of injury. In the case of negligence the injury is generally foreseeable, hence a man, in order to prevent any harm or injury is expected to be preventive in his actions. There are cases when a man is careful but not accordingly to the situation which may also result in injury. If a person boards a train which has just started moving but forgets to close the door of the boogie, it creates danger for the people standing on the platform. And if a porter standing on the platform gets injured, the latter is liable for his carelessness as it is a duty of the boarding people to close the door as to prevent any injury to others.[8]

Medical Negligence

Professionals in the law of negligence are lawyers, doctors and architects. Professing a special skill requires adequate practice and knowledge of the task undertaken. This is the reason a medical practitioner is said to ‘practice medicine’, even if the field requires proficiency a lawyer or doctor doesn’t assure his clients of 100% success. The only assurance that can be given is that the person is proficient in the required skill and while undertaking the certain task will handle it with reasonable competence.[9]The Apex court held that a person can be held liable for negligence on two findings, ‘either he was not possessed with the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess’.

“In my opinion, our health care system has failed when a doctor fails to treat an illness that is treatable.”  – Kevin Alan Lee.

In the case Indian Medical Association v. V.P. Santha[10], the judges explained the difference between “occupational liability” and “professional liability”. They state that a profession consists of success and failures and those we cannot expect the doctor or medical practitioner to always have success in every case. The liability can only be decided on analyzing the case as the standard of care differs from case to case. A case of patient suffering from flu requires less care than a person suffering from cancer. Also the possibility of healing also depends on the case and its severity. In M/s Spring Meadows Hospital v. Harjot Ahluwalia[11], the Court observed, that the judgment depends on case to case. If the error made by the person in charge would not have been made by an ordinary person competent and skilled to the same extent as the defendant acting with reasonable care, he must be held negligent. While if the error made by him could have been made by an ordinary person in the same situation he must not be held negligent. A homeopathic doctor giving allopathic medicine which causes the patient’s death has been negligent and is liable to compensate as he was entitled to practice homeopathy only.[12]

Also, the term accident should not be confused with the consequence of negligence. Accident has a wider meaning. An accident means an unintended and unforeseen injurious occurrence; something that occurs in the usual course of events or that could not be reasonably anticipated.[13]

Res ipso loquitur[14] in Medical Negligence

The principle of res ipso loquitur is also applicable in the field of medical negligence. If the accident occurred would not have occurred if the management would have taken essential care and preventive measures, it proves to be an evidence for the liability. In such cases the management or the servants have been negligent towards their duties which resulted in the injury caused to the patient. In the case of Ashish Kumar Mazumdar v. Aishi Ram Batra Charitable Hospital Trust,[15] the patient has fallen out of the window of a hospital room, which clearly showed the negligence of the hospital staff. A three-judge bench of the Supreme Court applied the principle of res ipsa loquitur held the hospital liable for the absence of duty of care.

ESSENTIALS OF NEGLIGENCE

Negligence is the breach of a duty that a person owes to the other, caused by an omission which an ordinary man guided by the considerations of human conduct would not do; and the breach has resulted into an injury or damage to the person. Negligence has three essential components: ‘duty’, ‘breach’, ‘damage’.

The duty of care owed to the plaintiff;

The breach of duty on the part of defendant;

The damage caused to the plaintiff as a result of the breach.

Duty of the Doctor to attend a patient

If a doctor does not care to attend a patient in need to be admitted or attended the doctor will be held liable to compensate for any kind of loss that the patient suffers. There are many cases in which due to the non availability of the doctor at the time a patient has to suffer great injuries and even death. It was held inSishir Rajan Saha v. The state of Tripura[16]  that if a doctor is not available to attend a patient he will be liable for the damage caused. In the recent case, the petitioner’s son met an accident while coming to Udaipur from Agartala on scooter. He was admitted to the G.B. Hospital, Agartala in the emergency ward. The senior doctor, Dr. P. Roy who was a specialist in the field wasn’t available in the hospital at the time. He was continuously contacted and called to the hospital but chose to ignore as he was busy attending his patients in private. As a result the patient gave in to his injuries and died. The Court held the doctor liable to compensate Rs. 1, 25,000 to the father of the deceased. The Court also directed the Government hospitals to upgrade their services.

Duty of care

When a doctor attends his patient, he owes certain duties towards the patient:

  1. A duty in deciding whether to take the case,
  2. A duty in deciding the kind of treatment to give,
  3. A duty of care in the administration of the treatment.

In Dr. Lakshman Bal Krishna Joshi v. Trimbak Bapu Godbole[17], the respondent’s son who was 20 years old met an accident on a beach and as a result femur of his left leg was fractured. He was taken to the appellant’s hospital and during the treatment of reducing the fracture; the appellant gave him a single dose of morphia injection instead of giving an anesthetic. He used excessive force in handling the fracture and pulled the injured leg with three attendants. Then he put his leg into plaster of paris splints. The treatment gave a shock to the patient and as a consequence thereof he died. The doctor was held guilty of negligence by the Supreme Court.

In the recent case, the court held, “The petitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor the very low degree of care and competence judged in the light of the particular circumstance of each case is what the law requires. The doctor, no doubt, has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.”

In the case of Jagdish Ram v. State of H.P.[18], it was held that ‘ Before performing any surgery the chart revealing information about the amount of anesthesia ad allergies of the patient should be mentioned so that an anesthetist can provide ample amount of medicines to the patient’. The doctor in this case gave an overdose of anesthesia to the patient and as a result thereof the patient dies. The doctor was held liable for the negligence on his part.

Thus, a treatment found to be not in accordance with medical protocol would be a case of medical negligence.[19] The doctor cannot be made liable for negligence in case when things have gone wrong. But if a doctor fails to provide medication necessary to the treatment and health of the patient, no one but the doctor is to be held liable for the act.

NEGLIGENCE DURING THE COVID-19 PHASE

With the COVID 19 pandemic surrounding the globe and in excess of 2 million active instances of the same, the caring administrations by the medical experts is the main redeeming quality going with the careful steps that are the duty of the considerable number of citizens. Be that as it may, the security of the residents is being taken consideration by the clinical organization yet what it involves for the clinical clique who is over and over being blamed for negligence in discharge of average duty. On one hand the medical practitioners are being hailed as ‘Corona warriors’ but on the other hand, with the increase in cases wouldn’t there be a increase in negligence?

India had only 111 Covid-19 testing   centers to deal with a population of 1.35 billion people. This accounts to the medical negligence of the practitioners along with the hospital administrations especially at a time when every state is trying to reduce the number of cases. The number of beds available in the hospitals is comparatively less and as a result the citizens are dependent on understaffed and under-funded state run health facilities for COVID 19 diagnosis and treatment. This is a serious issue as people do not believe on the state authorities. A lady who was quarantined after her Spain visit states that there is a lack of basic amenities in the hospitals. People fear to come forward as they doubt the skills of the administration to treat their disease. Global health experts claimed that India does not have enough infrastructure and other facilities to face the pandemic. The claim nearly became evident with the increasing number of cases in India. Not only hospital authorities but the government has been lacking service, testing is another major concern. India has performed a little over 100,000 tests — a rate of nearly 47 tests per million people compared with 4,572 tests per million in the U.S., 2,753 tests per million in the U.K, and 8,800 per million in South Korea[20]. At present, India is not adequately testing to identify new cases, which might be hiding the true number of cases. An incident of severe medical negligence was noted when the Patna All India Institute of Medical Sciences (AIIMS-P) handed over the body of a COVID-19 positive patient to his family members.

In the midst of the vulnerability made by the COVID-19 pandemic, the judiciary remains the sole symbol of would like to review the worries of residents oppressed by the absence of satisfactory medical framework and the rising occasions of clinical negligence. There is trust that vital estimates will be taken by the Supreme Court, to safeguard the confidence and any expectation of the individuals.

CONCLUSION

Medical Negligence is, by and by, a hard issue to set up. On the off chance that negligence cases result from the current emergency, they will be tried comparable to target norms of care. The courts will think about the real factors and conditions of the case, including that the medicinal services staff were acting in an emergency. Considering past cases and the law’s methodology, the significance of clinical rules, conventions, staff preparing, ability appraisal, and enlistment expect a fundamental centrality, and all means should be completely reported. Documentation of steps taken in every one of these issues will demonstrate pivotal in safeguarding any cases brought. In any case, the COVID 19 is a phenomenal occasion and the relevance of the above laws in such conditions of most extreme criticality and affectability stays to be questionable. After the lockdown ends it would be unmistakable component of the lawful framework to observe such case emerging out of clinical carelessness in taking care of crown positive patients.

It isn’t expressed that specialists (doctors) are careless or reckless, however while carrying out a duty which requires a great deal of knowledge and care, regularly numerous experts fail to perform their duty towards the patient. Medication which is perhaps the noblest profession requires setting a domain which can profit the victims of different diseases. Numerous specialists even the expert in some cases dismisses little things to be dealt with while practicing which may bring about harms to the patients that could have been maintained with a permanent disability from that time or even the demise of the patients.

This type of negligence makes patients more prone to harm than to heal. And to avoid these sorts of accidents, prevention and careful behavior of doctors is important. The most prevalent way of doing this is relevant laws and statutes to ensure a patients well being. In a case where a US-based doctor who was Indian from origin lost his 29-year-old wife who was a child psychologist during their visit to India fifteen years ago. The Supreme Court asked the Kolkata-based hospital and three doctors to pay over Rs 11.41 crore[21]. “A bench of justices C K Prasad and V Gopala Gowda arrived at a figure of Rs 6.08 crore as compensation after considering aspects such as loss of consortium, pain and suffering and the cost of litigation.”

Another such case was noted where the Apex Court awarded a compensation of 1.8 crores to a women who had lost her eyes in 1996.[22] Cases like this are evidence of the medical malpractice in India. The government requires making strict rules to prevent the same, so that the justice prevails. People of India should be provided with adequate medical facilities, hygiene and sanitation. Laws should be strict for not only medicine but for all such professions to maintain a certain standard of care and prevent breach of duty.


[1] (1995) 6 SCC 651.

[2] AIR 2012 M.P. 21

[3] Tapas Kumar Koley, Medical Negligence and Law in India.

[4] “We are ignorant”. This was the word used by the grand Jury to discuss a bill of indictment and was used in the sense of not a true bill or not found. available at : https://www.etymonline.com/word/ignoramus( Last visited on March 12,2018)

[5] 2 Root 90 (Conn. 1794)

[6] Edward Wong Finance Co Ltd v. Johnson, Stokes, [1984] AC 296

[7] AIR 2005 S.C. 3180

[8] Booker v. Wenborn (1962) 1 W.L.R. 162.

[9] Jacob Mathew v. State of Punjab

[10] (1995) 6 SCC 651.

[11] (1988) 4 S.C.C. 39.

[12] Poonam Verma v. Ashwin Patel and Ors. (1996) 4 S.C.C. 332

[13] Black’s Law Dictionary, 7th edition

[14] The principle that the mere occurrence of some types of accident is sufficient to imply negligence.

[15] AIR 2014 S.C. 2061.

[16] AIR 2002 Gauhati 102.

[17] AIR 1989 185

[18] A.I.R. 2007 (NOC) 2498 (H.P.)

[19] Malay Kumar Ganguly v. Sukumar Mukherjee AIR 2010 S.C. 1162.

[20] https://www.bbc.com/news/world-asia-india-51922204

[21] THE OUTLOOK

[22] Krishna Iyer v. State of Tamilnadu and Others, 2015 STPL(Web) 1239 SC

Child Adoption according to the Hindu Law

Introduction

Children are the future of our country. But many children are abandoned and sent to orphanages where a part of them face abuse and exploitation. In many cases it has been evident that such children become victims of human trafficking and even go through sexual harassment. Whereas, part of fortunate cases show some abandoned children are taken in for adoption. Adoption is that the act of agreeing with approval. Adoption may be a legal process that makes a parent child relation between persons not related by blood. An adopted child is entitled to any or all privileges as almost like natural-born child. Adoptive child also has right to inherit. It’s usually called as the legal process of becoming non-biological parent. The adopted son is then taken as being born within the new family and acquires rights, duties and standing there only, and his tie with the old family involves an end.

Every religion has its own laws regarding adoption. There’s no uniform law of adoption. Though adoption is that the legal process of actual giving and taking of a baby, it also forms the topic matter of private laws. Thus, Muslims, Christians, and Parsis don’t have their adoption laws; they approach to the court under The Guardians and Wards Act, 1890. They’ll take the kid under the provisions of the said Act. When child grew up and attain age of majority, he wouldn’t under the requirement of the adoption law the least bit. And this child also doesn’t have right of inheritance over the property of guardians.

Under the laws of The Guardians and Wards Act, 1890, a foreigner can even adopt a toddler. If the guardian wants to require the kid to outside the country, he shall take the court’s permission which process will govern under the adoption process in foreign law. Hindu law, Muslim law and also the Guardians and Wards Act, 1890, are containing three different provisions of adoption.

Hindu Law

The Hindu Law legalizes the child adoption in India. The Hindu Adoption and Maintenance Act, 1956 defines the adoption and legalizes it. The Act directs that the adopted children are equal to the natural child and they have all the rights that the natural children have. There must be no discrimination among the natural and adopted child. They have the right to inherit. Earlier according to the adoption laws any person could not adopt a girl child but after The Hindu Adoption and Maintenance Act, 1956 got commenced female child also got included under the adoption. Adopted child not only creates a relation between children and parents, but also it creates a new family for the adopted child. Also, any girl child adopted under the Hindu law should be treated like a natural child and there must not be any discrimination between a boy and a girl child. 

This Act contains capacity of person to adopt a child and requisites which the child should fulfill for being given in adoption. All the important aspects regarding the procedure of adoption of a child mentioned under the same Act. Adoption under Hindu law includes Budhists, Jains, Sikhs and Hindu religion.

Bal Gangadhar Tilak vs Shri Shriniwas Pandit[1]

In this case the Privy Council observed that adoption among Hindus is not only for having a legal children but it is also a religious rite meant to perform obligations and sacrifices which would allow the soul of the deceased father to pass from Hades to the paradise. 

Amarendra Man Singh Bhramarbar vs Sanatan Singh[2]

In this case the Privy Council observed that the foundation of the Brahmanical doctrine of adoption is a duty which every Hindu owes to his ancestors for the continuance of the generation and the performance of the necessary rites. Adoption is a part of the customs. The burden of proving the validity of adoption falls on the person who claims it under the Hindu Adoption and Maintenance Act, 1956.    

Binapani Samanta vs Sambhu Mondal & Ors

In this case the petitioner filed a petition challenging the defendant who is the probate of the will on the basis that she was the adopted daughter of the deceased and that the probate is fraudulent. But she failed to prove the burden of proof and of the validity of the adoption. It was held that she could not challenge as she failed to prove the validity of probate.

Requisites of valid adoption

 Section 6 of The Hindu Adoption and Maintenance Act, 1956 describes it, the requisites are-

  1. A person who is giving in a child for adoption must have the capacity to do the same.
  2. A person who is given in adoption must be capable for being taken in adoption.
  3. Adoptive father and mother must have the capacity and right to do adopt a child.

Smt. Malati Roy Chowdhury vs Sudhindranath Majumdar And Ors.[3]

In this case, the petitioner filed the case for the right of married women of adoption because according to the HAMA act married women were not allowed to adopt a child. Not even with the consent of her husband thus this case was related to gender discrimination. The court stated for this judgment is “Adoption has to be taken factually or legally by the male in case of marriage, and not by the wife. In other words, the wife cannot adopt a child even with the consent of the husband”. 

Brijendra Singh vs The State of M.P[4]

This case overruled the case of Malti Roy, in this case. It was observed by the court that the case was a big disappointment. In this case, a disabled lady was married to man according to the village custom that was a virgin girl must get married. Her husband left her and so she adopted a son after whole 22 years of her marriage. In the other case, disputes were under the agriculture land ceiling law. She a declared that the appellant was her adopted son. The suit was decreed by the trial court and it was affirmed by the first appellate court. Madhya Pradesh High Court on the second appeal in the court held that, given the provisions of section 8(c) of the Hindu Adoption and Maintenance Act, 1956, the adoption was not valid. The argument by her side that she is leading a life like a divorced woman was not acceptable because there is a great difference between a female Hindu who is divorced and a female who is leading a life as a divorced woman. 

After this case a new Act was established in the favor of married women. The Gender Discrimination Act which is a personal law was amended in the year 2010. It gives right to married woman to adopt a child with husband’s consent but that will not change the fate of a married woman in the position of the disabled, deserted, “divorced-like” lady in this case. 

Capacity of males to take in adoption

Section 7 of The Hindu Adoption and Maintenance Act, 1956 describes it; the man must be of sound mind and must be a major. If the wife of the man is alive then he is not allowed to adopt a child without the consent of his wife. Unless she completely and finally ceased to be Hindu or renounced the world or any competent court has declared her to be incompetent. If a person happens to have more than one wife, he must take consent of all wives. 

Capacity of females to take in adoption

Section 8 of The Hindu Adoption and Maintenance Act, 1956 describes it; the woman must be of sound mind and must be a major. If husband of the woman is alive then she is not allowed to adopt a child without the consent of her husband. Unless he completely and finally ceased to be a Hindu renounced the world or competent court declared him incompetent. Section 8 also gives a widow the right to adopt a son or a daughter for her. The result of this is that for all purposes the child adopted in effect becomes the natural son or daughter not only of the widow but also of her deceased husband as well.

Deen Dayal Vs. Sanjeev Kumar

In this case, the mother’s consent is equally mandatory in giving and taking of a child in adoption. Thus, an adoption, even through, registered, where the child was given in adoption by the natural father but without the consent of the mother was held to be invalid. 

Who may give in adoption?

Section 9 of The Hindu Adoption and Maintenance Act, 1956 describes it, a person is capable of giving in adoption – No individual other than the mother and father of kid could have the authority to give a kid for adoption. The two have equivalent rights to give a kid in adoption. In the case that both the father and mother have passed away, or totally denied the world or authorized court announced them as of unsound mind; the guardian of the kid will have the option to give a youngster in adoption.

Who may be adopted?

Section 10 of The Hindu Adoption and Maintenance Act, 1956 describes it, for valid adoption of a child, he should be Hindu by religion. The child must not have been adopted earlier. He or she should not be married, unless there is a custom which permits a person to get married. He or she should not have completed the age of 15 years unless there is any custom which allows a child to do so.

Kumar Sursen vs The State of Bihar[5]

In this case, the issue of the adoption of a Muslim child by Hindu parents was brought up before the court. The child was supposedly brought up by Hindu parents since a very tender age and they treated him like their own son. The court, however, denied to give him the status of an ‘adopted child’ because of the specified provision of section 10(i)[6] of the Act.

Age difference

There must be an age gap of 21 years or more between the child and the parent. In case adoption is by a male and child getting adopted is female, the adoptive father must be at least twenty one year older than the child. And in case the adoption is by a female and the child getting adopted is male, the adoptive mother must be at least twenty one year older than the child.

Other provision like the ceremony of Datta Homam isn’t compulsory (section 11), adoptive father or mother shall not be bereft of their power to transfer the property merely by reason of adoption of a kid (section 13), etc. is additionally important.

Uma Prasad vs Smt. Padmawati And Ors.[7]

In this case, the claim of an adopted son on properties was challenged on the grounds that the boy was above 15 when he was adopted. And that the adoption was invalid. However, the parties, Agarwals by caste, succeeded in proving the exception that they were governed by ancient customs and usage, which allowed the adoption of a boy over the age of 15. The adoption was held to be valid.   


[1] (1915) 17 BOMLR 527

[2] (1933) 35 BOMLR 859

[3] AIR 2007 Cal 4, (2007) 1 CALLT 323 H

[4] (2016) 10 SCC 220

[5] AIR 2008 Pat 24

[6] 10. Persons who may be adopted.—No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:—

(i) he or she is a Hindu;

[7] 1999 (2) MPLJ 502

Federalism:Dual Machinery of Government Fuctions

Definition:

Federalism is the mode of political organization that unites separate states or other polities within a political system in a way that allows each to maintain its own integrity. Federal systems require basic policies be made and implemented through negotiation in some form, so that all the members share the making and execution of decisions. The political principles of federal systems lays ground rules on bargaining and negotiation among several power centers; they believe that dispersed power protects individual liberties. Examples of the federation or federal state include the United States, India, Brazil, Mexico, Russia, Germany, Canada, Switzerland, Argentina, Nigeria, and Australia. Federalism is at its core a system where the dual machinery of government functions.

Features of Federalism:

1. The essential feature are the levels of governance in the country i.e. the entire power is not concentrated with one entity.

2. The levels will govern the same citizens but their jurisdiction will be different. Each level will have specific laws, legislate and execution.

3. The power and duties are listed down in the constitution guaranteeing a federal system of governance.

4.  Just one level of government cannot make unilateral changes or amendments to the important and essential provisions of the constitution. Such changes must be approved by all the levels of the government to be carried through.

5. Despite the two levels of government there are possibilities of conflict. Then it will fall upon the courts or rather the judiciary to resolve this conflict.

6. Both levels have their own autonomous revenue streams despite the power sharing.

India as a federal state

India is a federal country. But not once in the constitution is the word “federation” ever mentioned. Instead what is said is that India is a “Union of States’. Actually many historians believe that India is a quasi-federal country. It means it is a federal state with some features of a unitary government.

The government of India is based on a 3 tiered system which include the union government, state government and panchayat /municipalities. A distinguishing aspect of Indian federalism is that unlike many other forms of federalism, it is asymmetric and gives limited autonomy to only some Indian states. Article 370 of the Constitution of India made special provisions for the state of Jammu and Kashmir as per its Instrument of Accession but it was revoked in 2019. Also one more aspect of Indian federalism is system of President’s Rule in which the central government (through its appointed Governor) takes control of state’s administration for certain months when no party can form a government in the state or there is violent disturbance in the state.

References:

https://en.wikipedia.org/wiki/Federalism

ARTICLE 370https://en.wikipedia.org/wiki/Article_370_of_the_Constitution_of_India

https://www.britannica.com/topic/federalism

Image Courtesy:The Himalayan Times

ABORTION LAWS IN INDIA

Abortion is defined as the deliberate termination of a human pregnancy, most often performed during the first 28 weeks of pregnancy in the English dictionary. India has gone on a long journey to stay true to this definition. India on its policy and laws on abortion have always been towards to shield and preserve women’s rights. Its laws have reflected the international principles of the women committees that the country is a part of. The abortion laws have invariably been revised now and again understanding the transitional and fluid ways of the changing times. The MTP Act has been in place in India for almost four decades. From the MTP Act of 1971, MTP Amendments of 2002, MTP Rules 2003, MTP Amendments of 2014, and MTP Amendments of 2020 show a clear step towards making women’s rights to safe abortion care and services. In the recent amendment of the Medical Termination of Pregnancy Act, the cabinet ministers of the union government have decided to amend the abortion laws to suit the changing times and have modified the 1971 Medical Termination of Pregnancy Act to increase the time for the termination of pregnancy from 12 to 24 weeks. This amendment also has altered the usage of the term “only married women and her husband “to “any women and their partners“.

MTP Act in India was passed in 1971  that was amended in 2020 allows women to seek an abortion under certain conditions. The conditions being (a) if there is an injury to the mother’s physical health or mental health should she continuing the pregnancy, (b) or if there is a risk of mental or physical abnormalities to the fetus which would leave the fetus with abnormalities  (c) if the pregnancy is the result of rape in which termination of pregnancy is allowed as the mental trauma to the women is considered as a grave injury to her mental health(d) if the resultant pregnancy is due to the failure of a contraceptive used by the couple to limit the number of children they have.  The MTP Act also mentions the place where an abortion should be done. Abortion must be done in a hospital sanctioned by the government or a place, for the time being, is approved by the government to do the act. The MTP must also be done by a registered medical professional. When the length of pregnancy exceeds more than 12 weeks, the abortion must be done with the consultation and approval of two registered medical professionals. The act also provides legal security to the medical professional performing the procedure. Anyone who violates the of the article is punishable by law. A person who is not a medical professional is found to be performing or has performed termination of pregnancy is punishable with rigorous imprisonment of a term of 2 years which may be extended to 7 years as it violates Act 19 of the Pre- Conception, and Pre – Diagnostic Techniques Act,1994. If the procedure of termination of pregnancy is done at a place that is not legally approved by the government then the person owing the place is punishable by rigorous imprisonment for 2 years as it is a clear infringement of the provisions of act 19 of the  Pre- Conception, and Pre – Diagnostic Techniques Act,1994.  The place which is legally sanctioned should display its certificate in a manner that is easily seen by the persons visiting the place. If the place has failed to do this action, It is fined with an amount of one thousand rupees as it is in breach of rule 5(7) of the Pre- Conception, and Pre – Diagnostic Techniques Act,1994.

The women undergoing an abortion should fill a Consent form. The Consent form is a requirement to show that abortion was voluntary and informed abortion 18 hours before the process of abortion to the patient. The place where the procedure is done has to fill out the RMP Opinion form, Monthly  Reporting Form, and the Admission Register of case records. The RMP Opinion Form is for the registered medical practitioner to state their credentials, certification, and their good faith towards the procedure done to the patient. The Monthly Reporting Form and the Admission Register of case records are for the hospital/place to track the number of abortion cases in the hospital/place over a month. Thus it is seen that there are many rules and regulations to follow when a woman wants to undergo an abortion. The new abortion laws in India are more progressive and pioneering a new path for the public healthcare system in India. All these laws regarding abortion in India are based to protect women who have been raped or sexually violated and as a measure of population control.

Child Labour

An innocent child, whose age is to enjoy the best days of his childhood, He/she should see big dreams about his/her future, should be learning new things and grow freely and play carefreely, should be going to school everyday. Is going to work everyday whose shoulders should be carrying a School bag but instead of carrying school bag carrying heavy burden of responsibility. That burden is spoiling his mental and physical health and opportunity to build a better future.

Child labours are exploited, exposed to hazardous work conditions and paid a pittance for their long hours of work. Child labour is very common in many developing countries due to severe poverty and poor schooling. High rate of child labour is still more than 50 percent in which children of 5 to 14 years are working in developing countries. Child lobour are cheap and easily available in developing countries, that’s why they are preferable which is an offence, under Child labour (prohibition and regulation) Act 1986.

The Constitution says that :- a) No child below the age of 14 shall be employed to work in any hazardous employment (Article 24) b) Childhood and youth are to be protected against exploitation and against moral and material abandonment (Article 39 (f)) c) The State shall endeavour to provide within a period of 10 year from the commencement of Constitution free and compulsory education for all children until they have completed the age of 14 years (Article 45)

Child labour is becoming a big social issue in India which should be resolved on regular basis. This is not only the responsibility of the government, but it also be reconciled by all the social organizations, bosses and guardians. This issue is for everyone which needs to be sorted out personally because it can be with any child of anybody.

How the Insolvency and Bankruptcy Code Changed the Default Policies

Introduction to the Code

India had the highest economic growth rates after the internet boom in the year 2000. A huge amount of investments were pouring inside the country as big companies saw it as a vast market and wanted to put solid footing in India. Companies had over-leveraged themselves in fear of losing lucrative opportunities. During the financial year of 2007-08, the Global Financial Crisis hit, and the high growth levels stopped. It led to low revenues, and subsequently, the high inflation levels caused RBI to increase the interest rates. This all led to the creation of an enormous number of NPAs in the financial sector. 

The government introduced the 12 Debt resolution mechanisms, but it was a failure in the end as all the laws failed to curb NPA’s. The borrowers used the loose provisions of law and created ambiguity in the judicial proceedings. They kept delaying it, and even when the cases were resolved, the creditors ended up taking massive cuts in debt recovery. 

The Ministry of Finance, in the year 2015, estimated that it would take 326 years to complete the backlogs. The Insolvency and Bankruptcy Code (IBC) was enacted in the year 2016 to tackle problems relating to insolvent companies and their closure. Many public sector banks, operational creditors, and financial institutions were facing challenges. The Code aimed to tackle the bad loans which were affecting the banks due to these insolvent companies. The Code has introduced a time-bound process under which insolvency will take place. Enactment of the Code has helped many employees working in these companies in India. They are now able to claim their dues quickly with the help of the National Company Tribunal (NCLT) established under this Code. IBC, after its enactment has successfully stopped many companies from defaulting their loans. The Code improved India’s ranking in “Ease of Doing Business” drastically. Currently, India stands at the 66th position. Before this Code was enacted, India’s ranking was 133. 

Objective and Purpose of the Code

  • Resolve Conflicts between the creditors and the debtor – The Code defines procedural certainty and the process of negotiation. The Code works in a way that reduces the problems of common property. This Code reduces the information asymmetry for all the economic participants.
  • The Code provides flexibility to the parties to reach the most efficient solution to achieve the maximum value during negotiation.
  • A platform for negotiation between the creditors and the external financers are created through this Code to create the possibility of rearrangements.
  • To amend the laws relating to the reorganization and insolvency resolution of the partnership firms, individuals, and corporate firms. 
  • A time limit is to be set in which the insolvency proceedings will be completed i.e., 180 days.
  • To raise the value of the assets of the interested parties.
  • This Code works in increasing the global ranking of the world in doing ease of business. 
  • The Code will help in promoting entrepreneurship. 
  • The Code establishes an Insolvency and Bankruptcy Board of India to act as a regulatory body. 
  • The Code proposes to regulate the insolvency professionals and professional insolvency agencies. The role of these agencies would be to develop professional standards and work as a disciplinary committee. 
  • Three types of resolution professionals are set up under the Code i.e., the Interim Resolution Professional, Final Resolution Professional, and the Liquidator.
  • Information Utilities has been set up under the Code. The work of these information utilities is to various types of data from the listed companies and also the data of the creditor’s companies. 
  • Individual Insolvency database is to be set up to provide information about the insolvency status of individuals.
  • An Adjudicating authority is set up to exercise the cases over a debtor. 

Relevant Social & Political Scenario at the time of enactment

At the time when the Code was passed in the parliament, big defaulters like Vijay Mallya and Nirav Modi’s defaults were putting pressure upon the public sector banks of India. There was no unified law against these defaulters. The rules which dealt with defaulters came under the likes of the Indian Contract Act, the Sick Industrial Companies (Special Provisions) Act, 1985, (SICA), the Securitizations, and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The Code aims to bring all the laws under one roof to provide ease to the primary creditors. The then Finance Minister Mr. Arun Jaitley said that “A systemic vacuum exists with regard to bankruptcy situations in financial firms. This Code will provide a specialized resolution mechanism to deal with bankruptcy situations in banks, insurance firms and financial sector entities. This Code, together with the Insolvency and Bankruptcy Code 2015, when enacted, will provide a comprehensive resolution mechanism for our economy”. However, at the time of enforcement of the Code, there were no special provisions for cross-border insolvency. 

Amendments

1. The Code went under a lot of changes since its inception; the first change came with the Insolvency and Bankruptcy Code (Amendment Act), 2017. Partnership firms, a proprietorship firm, individuals, and personal guarantors will be included under the heads “applicability” With this amendment, frivolous applications made by the personal guarantor will be avoided after the moratorium period is declared. Section 29A is inserted in the Code which lists the persons who cannot submit a resolution plan. It includes the undischarged insolvent, person convicted of an offence, disqualified from the post of director, account is NPA, a willful defaulter etc. If a person is NPA, if he pays his/her dues within 30 days, then they can submit the resolution plan. 

2. The Insolvency and Bankruptcy Code (Amendment) Ordinance Bill was introduced in the year 2018. The objective of the Ordinance Bill was to strengthen the Corporate Insolvency Resolution Process (CIPR). The Ordinance states that “to balance the interests of various stakeholders in the Code, especially the interests of home buyers and micro, small and medium enterprises, promoting resolution over the liquidation of corporate debtor by lowering the voting threshold of the committee of creditors and streamlining provisions relating to the eligibility of resolution applicants.” 

 One significant change brought with this Ordinance was the inclusion of “Home Buyers” under the definition clause of Financial Creditors. The home buyers will be able to recover the amount paid as advanced through this addition. Another significant addition to this Act was that CIPR can now be initiated by the guardian, administrator, and the executor of the financial creditor. 

 A “Committee of Creditors” will be formed that will consist of all the “financial Creditors.” They will majorly work as a body to make routine decisions regarding the CIPR. 

3. Insolvency and Bankruptcy (Second Amendment) Bill, 2018 – The approval of the Competition Commission of India is required to finalize the resolution plan set by the financial creditors. This will reduce the chances of extending the time of the CIPR, i.e., 90 days of extension. 

4. Insolvency and Bankruptcy Code (Amendment Bill), 2019 – The amendment proposes to strengthen the time-limit provisions in the Act. Secondly, a specific minimum payout is defined for the operational creditors for any resolution plan. Thirdly, it provides the manner in which the group of financial creditors should vote.