Preliminary inquiry before FIR?

In India, there is no law which gives the police power to conduct preliminary inquiry but there are certain judgements which have stated that in the case of matrimonial disharmony, police can prefer preliminary inquiry before filing FIR.

But let’s first start first definition of “inquiry”

Section 2(1)(g) of CrPC

” Inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.

Now, whether investigation and inquiry the same?

Manubhai Ratilal Patel vs State of Gujarat:-

Investigation by police is neither inquiry nor trial

Section 157(1) in The Code Of Criminal Procedure, 1973:-

Procedure for investigation preliminary inquiry.

(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender; Provided that-

(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.

Police have the authority to not investigate after filing the FIR if the matter is trivial but will have to send the report to the magistrate. Further, on receiving such report, Magistrate may direct an investigation, or, if he thinks fit, at once proceed, or depute any Magistrate according to Section 159 of CrPC.

State of Telengana vs Managipet Reddy

A preliminary enquiry may be conducted pertaining to matrimonial disputes, commercial offences, medical negligence cases, corruption cases etc. The judgement of the court and Lalita Kumari does not state that proceedings cannot be initiated against an accused without conducting a preliminary enquiry. There is no set format or manner in which a preliminary enquiry is to be conducted the objective of the same is only to ensure that a criminal investigation process was not initiated on a frivolous and untenable complaints.

Preeti gupta vs State of Jharkhand

It is a matter of common experience that most of these complaints under Section 498a IPC are filed in the heat of the moment over trivial issues without proper deliberation. A large number of such complaints which are not even bona fide and are filled with oblique motive at the same time Rapid increase in the number of judgement cases of dowry harassment are also a matter of serious concern and it is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities into consideration and make necessary changes in the relevant provisions of law.

273rd Law commission of India report

Misuse of Section 498-A in many cases has been judicially noticed by the apex court as well as various High Courts. This has also been taken note of by Parliamentary Committee on Petitions (Rajya Sabha). However, misuse (the extent of which is not established by any empirical study) by itself is not a ground to abolish S,498-A. The law on the question whether registration of FIR could be postponed for a reasonable time is in a state of uncertainty. Some High Courts have been directing that FIR shall not be registered under S, 498A (except in cases of visible violence, and the like) till the preliminary investigation is done and reconciliation process is completed. The issue has been referred to a larger Bench of Supreme Court recently. In this regard, the police have to follow the law laid down by the jurisdictional High Court until the Supreme Court decides the matter.

Lalita Kumari vs State of UP

If the inquiry discloses the commission of cognizable offence, FIR must be filed. Scope of preliminary enquiry is not to verify the veracity of or otherwise of the information received but only to a certain whether the information reveals any cognizable offence. A preliminary enquiry should be made time bound and, in any case, it should not exceed 7 days.

Therefore, police can conduct a preliminary inquiry before filing the FIR in matrimonial disharmony cases which relate to Section 498a of IPC as misuse of Section 498-A in many cases has been judicially noticed by the apex court as well as various High Courts. If the inquiry discloses the commission of cognizable offence, FIR must be filed.

New Gold Regulations

Gold is not just an asset in India it holds significance in our culture. Being the symbol of the Goddess Lakshmi and considered to be auspicious.

It is part of several cultural and social events of Indian society. Not just bought on special occasions or passed down from several generations, but it also holds the great economical point. Being one of the most trusted investment all over the world even the RBI of India holds 695 tonnes of gold within it as a reserve.The government of India had mandatory hallmarking for gold in 256 districts and plan to implement it all over India in the future.


What is a Hallmark?

It is series of marks made on the metal to clarify the content of the noble metals like gold, silver, etc.In other words,s it lends credibility to the purity of gold. The Bureau of Indian Standard (BIS), in India, is the accreditation agency that certifies and Hallmark gold jewelry and other precious metals.

Other key terms related to gold-

Carat– It indicates the percentage of purity of the metal. Eg 24 carat means gold contains 100 pct gold. But to lend it some strength metal is mixed. Hence gold is about 18 -22 K only.

Stamp of BIS and year of the mark-It is a triangle mark assure of purity with the year of hallmarking of jewelry.

Jewelry Identification mark-BSI mark also carries jewellery stamps to Indicate that jewelry is certified. Its certification is cheap at Rs 2 per gram of gold.

Currently, this regulation is only imposed on jewelers having a turnover of above 40 Lakh only.

article 21

The Constitution speaks that no person of the state shall be destitute of the right to life and personal library. The right to life was protected by the law under the fundamental right. No restrictions were on the citizen of the country, everyone has the right to life under the Constitution. The human rights provided people’s good life under the right to life and personal library. If was restricted to enjoy his freedom by some unlawful action of government the he have rights to investigate against the action.

The most important part of the constitution was fundamental rights and in it elaborates exploitation of human rights as written in the other constitution of the world. The provision constitution provided a broad declaration of fundamental rights which is necessary for the full development of personality of individual. The aimed of these fundamental rights is to establish such law to welfare of the citizen. The purpose of establishing the fundamental rights is to protect the rights and liberties of the peoples. Human development is moral basic principles that explain the standard of human and it protect their natural and legal rights.

 Article 21 [1]now safeguard the right to life and personal liberty of citizens and not only from managerial action but from the parliamentary action also.

If two conditions compiled then a person can be deprived of his life and personal liberty:-

  1. There must be a law.
  2. There must be a procedure prescribed by law, provided that the procedure is just fair and reasonable.    

Article 21[2] held to the heart of the constitution. It’s give a different way of protecting the fundamental right of life. Without the fundamental right to life we cannot live as human being and included all those aspects of life. The rights of life makes the life meaningful, complete, and worth living. The right to life and personal liberty makes the citizens life to live freely without any interference of the government. There are many fundamental rights which was making to the development or to increasing the living standard of citizens. This right was not conflict to the fullest things of humans but with the judicial action.

 In the place of the rule of man, a human being has established the rule of law of constitution to protect the right of life and liberty of citizens. The state has been very inception to protect and safeguard of such fundamental rights. These rights was accepted and adopted by the citizen of the state for development of their living life. The right to life and liberty find its place in Article 3[3] of human right that speaks “everyone has the right to life, liberty, and security of person”.

Under Article 21 of the constitution of India interoperated the right to life and personal liberty of citizens in Maneka Gandhi’s[4] case has explain all the perception of the right to life.

For the development of human personality it is necessary to benefit the right to life and liberty. In the democratic state it id the basic human right. The right to life and personal liberty of citizen is a back-bone of the human rights. Every citizen has a right to live freely and enjoy their freedom as there fundamental right. In the state without the laws and legal rights person cannot enjoy their freedom because in the modern era the humans was not honor each other’s action and interfere in there human rights and violate them.

So to get the solution of this problems man established some certain law which was found in the constitution. The right to life and personal liberty was the most precious fundamental right among all the human rights. The reason for this when the peoples attentive towards their right to life then there life become meaningful.


[1]Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

 

Article Three of the United States Constitution establishes the judicial branch of the federal government. Under Article Three, the judicial branch consists of the Supreme Court of the United States, as well as lower courts created by Congress.

[4]1978 AIR 597, 1978 SCR (2) 621

ARE WE READY TO ADOPT THE UNIFORM CIVIL CODE?

See the source image

The Uniform Civil Code is encoded in the Article 44 of the Directive Principles of State Policy. The Article expects state to implement a common set of rules and regulations which will replace the personal laws based on the scriptures and the customs of every religion. Recently, the subjects like marriage, divorce, inheritance come under the realms of the Personal law. If we talk about the whole, the Hindus, Sikhs, Jains and the Buddhists which were governed by the Hindu personal laws has already codified by the government ages ago, in 1956. On the other hand, the personal laws of the Muslim, Christians and the Jews are still in unmodified and traditional approach. The concept of equality which was raised by various learned persons must have led to such conditions. Or could it be the orthodox of the Muslim community? In a secular country like India, there was always a need for a common code but it was only because of few Politicians and religious scholars that every attempt for such has been in vain. The reason behind this was the majority of vote bank. And the major community who will be affected by the code is the Muslim community. This is because the Hindu code was already modified and that was well adopted by the community. The right to practice religion becomes a controversial topic in Indian politics during the controversial Shah Bano case of 1985. The predictable challenges and questions that will be raised are, it will be declared unconstitutional. This is because; Freedom of religion gets into question with the right to equality. Article 14 and Article 15 will be raised as defense. “The right to conserve distinctive culture will be infringed”, Article 29. The Indian Constitution has provided he Indian citizens all the liberty that could be exercised not infringing others’ rights. This is why the people have right to religion and no one can interfere in their personal matters. In 2018, Law Commission of India stated that the UCC was “neither necessary nor desirable at this stage”. But every coin has two sides. The government must emulate Gaon practice of common civil code; they have been living under a uniform law since ages. The concept must not be understood as a common law instead it can be a uniform law which has a modified version of personal laws. For this people should not misinterpret it and not make rumors disgracing the country and the Government of India.

India is a continuously developing country and has adopted many changes in the constitution before. There have been many changes and amendments in the constitution that the country has adapted even before. Changes are necessary for the development of the nation and they are the signs of a healthy democracy. The people objecting the civil code may say that the country is trying to impose the Hindu code over all the community but it isn’t imposing it. The Hindu community has long ago gone through this phase of changing the personal laws. There were some objections but gradually the community has adopted it. So it can be said that the Hindus will not be affected by the change. Many can argue that the Indian territory consist of many religions so copying the west positivism centered legal trajectory would not be right but in order to unify the whole nation and stop the mishaps we will have to adopt the civil code. It can be argued that personal law system violates the principle of equality of the constitution because by having different personal laws for different religions, we are going against secularism and equality. But UCC would promote equality and unity as it will implement similar laws for all citizens.[1]

The time for establishment of the UCC might have come as it may help the Muslim community to break the taboos.[2]. It would be a strong step towards gender equality and gender justice. It is a mandatory provision of the constitution and if we are not ready for it after more than 70 years of independence, how much more time the people would seek?

It has been rightly pointed that UCC will not violate the Article 25 and 26 and it will help in attaining secularism and Article 44. Further, it can be argued that marriage, succession etc. are secular matters and law can regulate them. Implementing UCC will promote monogamy. It will promote a sense of equality among the citizens and betterment of the position of women in India. It will help to remove the prejudices against women regarding personal laws on marriage and maintenance.

Though, witnessing the large amount of protests against the CAA it can be concluded that the country is in a phase of sensitive minds. The people instead of thinking about the goods peacefully prefer the violent methods. Though, it can be a healthy sign of a democracy.                Even if the Uniform Civil Code cannot be implemented the government has always been implementing the laws in public interest. Gradually the people will start adapting to the codes and thus we will adapt to the Uniform Civil Code. Although, the majority government has worked wonders and taken decisions that were almost impossible. We can never guess what could be the next step taken by the government, and that too when it was mentioned in the manifesto.


[1]Nithya NR, Uniform Civil Code for India: Prospects and Constraints, Global Research Analysis Journal Vol.2

[2]Seshadri Chari RSS

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

live-In Relationships Illegal or not?

Denial of granting protection to a couple who are in a live-in relationship only because it is socially and morally unacceptable. is it justified on the part of Punjab and Haryana High Court? The boy and the girl had been in a living relationship that goes against the girl’s parents will.

The couple asked for protection from the court for their life and liberty after being frightened by their families. Unfortunately, they were denied protection. the denial of their right under Article 21, in this case, is inappropriate. The judgment by the court seizes their identity as per Article 21 as well as the right to “life or liberty”.Article 21 declares that every individual has the right to their life or personal liberty. Therefore to secure their right the couple moved before the Punjab and Haryana High Court for the protection under Article 21, which is dismissed by the court on the ground of social and moral unacceptability. while rejecting the petition, the high court interpreted that the term “person” means those who are recognized by law as being capable of having legal rights and being bound by legal duties, not a couple. After getting married, a man and woman are considered capable of having legal rights and duties known as rights in the institution of marriage. But only when the marriage has been done as per their respective marriage laws in force in India.

The denial of the right to life and liberty is completely inappropriate in the law. Since no law in India criminalizes pre-marriage, it would be more like legislation by the judiciary to hold pre-marriage illegal based on social morals. There is no force of law in an opinion that has been embraced by the conservative majoritarian masses of India who find it illegitimate. The decision rendered by the Punjab and Haryana High court erred in ascertaining the aforesaid point. In place of assistance, the couple became the subject of discrimination held by the conservative majoritarian masses.

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

Difference between Civil law and Criminal law.

All you need to know about Criminal Law: An Insight

What is Criminal Law?

Criminal law relates to the offences that negatively affect society as a whole, rather than just one person. Criminal laws are put in place by Parliament to prevent breaches of conduct which they deem as harmful towards the whole of society. If a person breaches criminal law, then they will face criminal prosecution by the state. Criminal proceedings are brought by the Crown Prosecution Service and will be heard in Magistrates’ Court or the Crown Court. If you are then convicted, you may receive a prison sentence or a community order. The standard of proof for criminal law cases is “beyond a reasonable doubt” or “certain so you can be sure.” These both mean the same thing.

Examples of criminal offences include:

Murder, Manslaughter, Fraud, Assault, Sexual Offences, Burglary, etc.

Civil Law High Res Stock Images | Shutterstock

What is Civil Law?

Civil law is more concerned with cases between individual people where one person commits an offence which is harmful towards another person, their rights or their property. Civil law also settles disputes between individuals and organisations. If you are convicted of a civil offence, you are not likely to be sent to prison, but most often will become liable for compensation. The standard of proof for civil law cases is “the balance of probabilities.” However, certain civil offences such as disciplinary proceedings for solicitor misconduct can use the higher standard of “beyond reasonable doubt.”

Examples of civil offences include:

Personal injury, Breaches of contract, Employment tribunals, Negligence, etc.

Civil LawCriminal Law
Civil Law is a general law which deals with disputes between organizations or individuals or between the two. The wrongdoer, as per the civil law will has to compensate the affected party.Criminal Law deals with crimes and offences that are committed against the society. It deals with crime and legal punishment of offences.
Civil Law is generally initiated by the aggrieved individual or organisation or also known as ‘plaintiff.’The Government files the petition in case of criminal law.
In case of Civil Law, to start a case, the aggrieved party needs to file a case in the Court or TribunalAs per Criminal Law, to start a case, a petition cannot be filed directly in a court, rather the complaint should be first registered with the police, and the crime needs to be investigated by the Police. Thereafter a case can be filed in the court.
The objective of Civil Law is to protect the rights of an individual or organization and make sure that he or the concerned organization receives the compensation for the wrongs that they have suffered. The purpose of Criminal Law is to maintain law and order and protect society by punishing the wrongdoer.
In Civil Law, the wrongdoer gets sued by the complainant or the aggrieved party.In Criminal Law, the accused person will be prosecuted in the court of law.
In the case of Civil Law, there is no punishment like Criminal Law, but the aggrieved party receives the compensation and the dispute gets settled.In the case of Criminal Law, punishment is meted out as per the seriousness of the criminal offence committed or a fine could be imposed.
In the case of Civil Law, the power of the court is to pass judgement or injunction to compensate for damages caused to the aggrieved party.In the case of Criminal Law, the powers of the court are charging a fine, imprisonment to the guilty of a crime, or discharge of the defendant.
In Civil Law cases, the defendant is considered to be either liable or not liable.In Criminal cases, the defendant is considered either guilty or not guilty by the court.

Casual racism in India

Racism against Indians living in the northeastern region has been increasing day by day and is an issue of concern. States like Assam, Nagaland, Mizoram, and others surrounding it are the main ones to be part of the northeast.

 Recently, a Youtuber even got arrested for allegedly “defaming” the people of Andhra Pradesh and accusing them of being Chinese. While this was a good step and start, we are all aware of how casually the people of northeast India are called slangs like “Ch*nki”, “momo” etc. and no action is taken against them because it is so very engraved in our society now, that practicing this is not an offense. We must not forget how many spectacular pieces of art the north Indian part has contributed to India and continues to do so even now.

The simple answer to this is- The mentality. It’s not a big revelation that casual racism is not faced only by the northeastern people but by all the people belonging to different and seemingly “unconventional” parts of India. It comes out that our Indian society likes to put people into boxes and parts according to their skin color and way of living.

When I look around myself, I usually have this realization that most people are not even aware of the fact that using slangs and treating them differently is, in fact, wrong, which pilots us to our first point –

  1. Awareness- This is the most obvious but crucial point. People need to know that THIS is wrong in the first place. And I know that it is better said than done, but, at this point of time, even the so-called “progressive youth” of India is simply not ready to take up this topic into talks. “Black lives matter” was in the news rigorously for so long, as it should have been. But in my opinion, we should focus on making things right in our country first.
  2. Better representation in the media and government- This is absolutely no diversity when it comes to people from differing communities being recruited in the mainstream media and the parliament. This will even be a catalyst in achieving a society and country where decisions are made equally in the favor of all communities.
  3. Highlighting the achievements- The media plays a very big role in this one. We need to show our people that people from the northeast contribute a lot to the potency of India as a country.
  4. Better job opportunities and laws for all Although it’s nice to see that small steps have started to be taken by our government now, we all know that we still have a very long way to go to attain utter equality in all the fields.
  5. Speaking up -This point is valid for any kind of prejudice you witness in your life and can make the biggest change ever. Don’t be a standbyer when someone is being mistreated in this world because hashtags can’t save the world, only we can.

Ultimately, We are the change that we seek in this world.

Today, China is trying its best to gradually break India apart and snatch it’s parts little by little. And will Indians be able to survive this if they make it easier for China to tear us apart by disintegrating themselves on the basis of their race and language and whatnot? I wish I could say ‘yes’ to this question right now.

LEGISLATIVE AND JUDICIAL ATTEMPTS TO BURY THE BASIC STRUCTURE DOCTRINE

Introduction:

The doctrine of basic structure is not defined in the constitution of India. The term has evolved as a result of various judicial decisions by the years. The Basic Structure Doctrine of Constitution of India states that the parliament can neither destroy nor alter the basic structure of the Indian constitution. The doctrine is applicable only to the constitutional amendments.

The basic features of the Constitution are:

  1. Supremacy of the constitution.
  2. Republican and democratic form of government.
  3. Secular character of the constitution.
  4. Federal character of the constitution.
  5. Separation of power.
  6. Unity and Sovereignty of India.
  7. Individual freedom.

                                                                                                                                                      Within their respective jurisdictions, the Parliament and the state legislatures are entitled to make suitable laws for the sake of people. The Bills regarding amendment of Constitution can only be passed by the Parliament itself. But the power is absolute and limited to some aspect. The Supreme Court of India holds the power to declare any law which it considers inconsistent with the Constitution invalid. In other words if any bill is passed by the Parliament which does not follows the ideals of the Constitution will be held invalid and void by the Supreme court. This doctrine has been laid by the Supreme Court to ensure and preserve the will of the Constitution and the ideology behind it. Hence, the Parliament cannot destroy or alter the basic structure of the Constitution. 

Evolution of the Basic Structure Doctrine:

The term Basic structure Doctrine has evolved through various decisions of the Supreme Court on the powers of parliament and judiciary. There was a dilemma between Article 13 and Article 368, the question raised was which of the Article had an overriding effect on the other.

Shankari Prasad vs. Union of India[1] (1951)

In this case, the First amendment was challenged on the ground that it is in violation to the Part-III of the constitution. Therefore, it was suggested that it should be considered invalid and void. The Supreme Court held that the Article 368 of the Constitution states, ‘the Parliament has the power to amend any part of the constitution including fundamental rights.’

In Sajjan Singh Vs State of Rajasthan[2] case in 1965 the Court gave the same ruling.

Golak Nath vs State of Punjab[3]

In this case in 1967, the Supreme Court held that the Parliament is not empowered to amend Part III of the constitution as the fundamental rights are immutable. The Supreme Court overruled its earlier decision.  According to the Supreme Court ruling, Article 368 lays down the procedure to amend the constitution, that does not give absolute powers to the parliament and to amend any part of the constitution.

The 24th Constitution Amendment Act

In 1971, the Parliament passed the 24th Constitution amendment act. The act gave absolute power to the parliament, in order to make any changes in the constitution and also the fundamental rights. It also made it obligatory for the President to give his assent on all the Constitution Amendment bills sent to him. This move was executed evidently in the favor of Smt. Indira Gandhi and her government.

Kesavananda Bharti vs. State of Kerala[4]

In this case, the Supreme Court upheld the validity of the 24th Constitution Amendment Act and reviewed its decision in the Golaknath case. The Supreme Court held that the Parliament has power to amend any provision of the constitution but the basic structure of the constitution is to be maintained as it is. But the Apex Court has not provided any clear definition for the term basic structure. It held that the “basic structure of the Constitution could not be abrogated even by a constitutional amendment”.

Attempts to bury the Basic Structure Doctrine:   Many politicians, experts and ministers were against the basic structure defined by the earlier cases. This led to challenges against the verdict of the court. In 1975, the Supreme Court reaffirmed the concept of Basic Structure Doctrine. This happened when the victory of Prime Minister Indira Gandhi in the elections was upheld by the Allahabad High Court on the grounds of electoral malpractice. Justice Krishna Iyer granted a stay allowing Indira Gandhi to work as the Prime Minister on the condition that she would not draw salary and speak or vote until the case was decided. But, while the court was hearing the case, the parliament passed the Thirty- ninth amendment o the constitution. This amendment removed the authority of the Supreme Court to handle cases with regard to elections of President, Prime Minister and the speaker of Lok Sabha.  Instead a body will be constituted for resolving such disputes. The aim of the bill was evidently to benefit Smt. Indira Gandhi. Some amendments were also made to the Representation of Peoples Acts of 1951 and 1974 and placed in the Ninth Schedule along with

the Election Laws Amendment Act, 1975. The mala fide intention of the government to save the face of Indira Gandhi in case the Court passed a verdict against them was proved by the hurry in which the Thirty-ninth amendment was passed. The bill was introduced on 7th of August, passed by the Lok Sabha the same day, and Rajya Sabha the next day, the President passed it giving his assent 2 days later and it was gazetted on 10th August. The counsel for the opposing party challenging Indira Gandhi argued that the amendment violated the basic structure of Constitution and hence should be held unconstitutional.  It affected the power of judicial review and the basic features including conducting of free and fair elections. They also argued that the Parliament is not empowered to decide if the election were valid or not stating the incompetency to use its constituent power to hold an election that was declared void by the High court. The court upheld the amended laws, striking down the law which restricted the power of judiciary to adjudicate the situation. The judges grudgingly accepted the Parliaments power to pass overriding laws.

Within three days of the decision of the election case, C.J. Ray convened to review the Keshavanandan Bharti case verdict with regard to a number of land ceiling petitions. The opposing party’s counsel argued that it was an unnecessary move. The bench dissolved soon after it and people doubted the government’s indirect involvement in the issue. The National emergency was declared in 1975. Soon after the Congress party constituted a committee with Sardar Swaran Singh its chairman to review the question of amending the Constitution. Through the 42nd amendment several changes were incorporated which also included that any amendments by the Parliament in the past or in future in the constitution cannot be questioned by the court.

Minerva Mills and the Waman Rao cases[5]

In this case the owners of Minerva mills challenged the 42nd amendment in the Supreme Court. Mr. N.A. Palkhivala from the side of petitioners decided not to challenge the government’s action instead he framed the challenge to Parliament’s power to amend the Constitution. He argued that the section 55 of the amendment provided unlimited power to the Parliament. He added that Article 31 C violated the Preamble and the basic structure doctrine, hence should be declared unconstitutional. It also took away the power of judicial review.

The majority judgment (4:1) held the amendment to Article 31C unconstitutional.’ It destroyed the harmony and balance between fundamental rights and directive principles which is an essential or basic feature of the Constitution.’ In another case relating to a similar dispute involving agricultural property the apex court, held that all constitutional amendments made after the date of the Kesavananda Bharati are subject to judicial review as the same procedure as prior to the 42nd amendment.



[1] AIR. 1951 SC 458

[2] AIR 1954 Raj 301

[3] 1967 AIR 1643, 1967 SCR (2) 762

[4] 1973 4 SCC 225

[5] 1980 AIR 1789

EUTHANASIA IN INDIA

Aruna Shanbaug died on 18th May 2015 after spending 42 years in a persistent vegetative state in KEM hospital. She was brutally assaulted, sodomized and choked with a dog chain which cut of oxygen supply to her brain thus putting her in a persistent vegetative state. She was the women who prompted India’s discussion on euthanasia in India. Euthanasia is a procedure of intentionally ending a person’s life to relive a life of pain and suffering. There are different types of euthanasia -Voluntary, Non-voluntary , Non-voluntary, Involuntary, Passive and Active. Voluntary euthanasia means that the process of euthanasia is done with the consent of the patient. It is legal in Belgium, Luxembourg, The Netherlands and Switzerland. Non Voluntary euthanasia is done when the patient is unable to give his/her consent. The consent is given by a person’s close relative or legal guardian. Involuntary euthanasia is done without the consent of the patient or his/her legal guardian. This amounts up to the murder. Passive euthanasia is where a person’s intake of food or treatment is stopped which would eventually lead to a person’s death. Active euthanasia is where a person is given lethal doses of a substance which end a person’s life.
There is a difference between euthanasia and suicide. In suicide, a man purposely ends his own life due to depression or his reasons being failure whereas euthanasia is where a third person ends about a person’s life with the patient’s consent. Euthanasia is complicated with different views form an ethical, moral, law and religion point of view. In India, euthanasia is considered as an illegal practice. In India, there are no laws regarding euthanasia in the IPC. It is considered as suicide, every act which is seen as an act as abetting the act of suicide is punishable under section 306 of IPC. Any physician who has the intention to cause death to a patient can be charged under section 300 of IPC, when there is consent from the legal guardian is present, the physician is charged with homicide not amounting up to murder under part 1 of section 300. Even if euthanasia is done under mercy killing is considered as homicide and any abettors will be charged.
The case of Aruna Shanbaug was a landmark case. Aruna Shanbaug was left in a persistent vegetative state after she was sexually assaulted and sodomized by ward boy Sohanlal Walmiki. She was taken care of by the KEM Hospital nurses. Her next friend which legally means that person who speaks on behalf of someone who is incapacitated. her next of friend Pinki Virani filed a plea to the SC with a plea to stop KEM hospital from force-feeding Aruna Shanbaug. The SC admitted the plea filed by Pinki Virani. the court set up a medical panel to examine. The panel examined and concluded that she met with most of the conditions of being in a persistent vegetative state. But it did not allow mercy killing plea on 7th March 2011. The court in its landmark decision allowed passive euthanasia in India. The court laid down guidelines for passive euthanasia. While India still has to figure out the ethical debate of euthanasia, it had made a stride in its attempt to understand the issue. The Aruna Shanbaug case stands as a landmark judgment for euthanasia.

Chasing The Rainbow: A New Era And A New Fight for India’s LGBTQ Communities

“Openness may not completely disarm prejudice, but it’s a good place to start.”

-Jason Collins

India’s Supreme Court last year struck down Section 377, a colonial-era law that outlawed same-sex relations, sparking hopes of equality for the country’s lesbian, gay, bisexual and transgender population. Hundreds of students with rainbows painted on their faces descended on a New Delhi college on Friday and others held parties in major Indian cities to commemorate the overturning of the ban on gay sex.

However, once all the celebrations and merrymaking faded into the background and harsh reality set in, it became apparent that homosexuality in India wasn’t going to be about unicorns and rainbows anytime soon. Even those beating drums and dancing warned that the fight for equal rights, including same-sex marriage and serving in the military, had not been won.

After all they still cannot marry, they still cannot adopt. They have many, many years before any of this is over. The harsh truth still remains that even though LGBTQ activists are growing in numbers, acceptance is still elusive as they continue struggle against internalized homophobia.

So, “where does this homophobia stem from?” and “how bad can it be?” you may ask.

One of the root causes of homophobia is that we, as a society, are unaware of homosexuality. We live in a time and place where people call each other gay to mock and insult them. A decade ago, gay and eunuch were used interchangeably and people were highly ignorant and intolerant towards homosexuality. My classmates often gossiped about (Bollywood producer and director) Karan Johar and (actor) Shahrukh Khan. It was a subject of ridicule and mockery. The stereotypical portrayal of gay and effeminate men in Johar’s movies was in unfair representation of the queer community. Even the popular sitcom FRIENDS was riddled with casual and sometimes blatant homophobia. “Gay” and “LGBTQ” still conjure images and connotations of loud, cackling men in gaudy drag costumes in India, partly because that is the only representation LGBT people get to have.

There’s also lack of sensitisation about the LGBTQ+ community. If they had a dime for each time someone told them that it’s “just a phase” or “why someone from the same gender, it’s not like you are deprived”, they probably could afford to move to a more accepting country. When I was in school, there was a guy who was often severely bullied by the “masculine” classmates because he was effeminate. Kids who weren’t “manly enough” were often a subject to ridicule and bash. No one stopped that. People thought it was normal and the right thing to do. This isn’t surprising though, given that even now there are people who find hijras scary.

The LGBTQ+ community also suffers from lack of support from their family. As a result, their only options are either getting excommunicated if they come out or remaining closeted which can be extremely draining.

They suffer from religious dogmatism. India is a secular country. Every major religion in India condemns homosexuality. It must no doubt be petrifying to live in a place which has more than 330 million gods and yet you can count on neither one of them for their blessings.

The arduous journey to acceptance becomes even more strenuous when you try discussing and rationalizing homosexuality to those intolerant towards it and reach the realization that the minds of recalcitrant homophobes are incapable of processing things beyond black and white. They need that sharp dichotomy. Without it, they panic. They feel adrift, as if nothing is sacred anymore. Which is, of course, ridiculous. But anyway, that whole thing comes from an “us or them” mentality, in which they’re the righteous and anyone who disagrees with them is clearly a secret homosexual out to convert their children to dance around a fire with Satan.

It appears that we have become obsessed in this toxic society with the labelling of others, especially with an intense and revolting over- interest in the sexuality and gender orientation of others what happened to the idea of loving our neighbours unconditionally and paying more attention to developing our own selves in good ways? After all, to change the world we change ourselves in ways that enable us to love others all the more. So let us drop the facade of “morality”, the wilting fig leaf over such garish homophobia, and have no agenda on the LGBTQ community.

Screenshot_20200730-124228_Samsung Internet

Diversity is good, and it’s okay to be different from the norm.

 

INTERNATIONAL HUMAN RIGHTS

Human nature has proven to be chaotic and even in most civilized times, there have been conflicts and where there is conflict there is a violation of human rights. Human rights are a collection of basic rights that everyone is entitled to. International human rights are a branch of international law that strives to safeguard and to advance human rights at all times. International rights are made up of treaties signed by sovereign states, customary international law. States that ratify it are compelled to agree, protect and empower human rights in their state. Other sources include declarations, conventions which are made by an international organization. The universal declaration of human rights is an authoritative instrument used as a base framework for international human rights. it was proclaimed and adopted by the United Nations general assembly. It is not a legally binding document. Global treaties like the International Covenant of Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. All the documents are aimed to prevent violation of human rights. The treaties also prevent torture, degradation of humans, discrimination based on gender, colour or race. it prohibits violation against women and children.
States have to respect the basic rules of both International Humanitarian Law and International Human rights. International Humanitarian Law is applied in times of conflict whereas international human rights are applied at all times regardless of the situation. The states that have ratified the treaties are bound to follow the international human rights as they assume obligations to respect, safeguard human rights The states have to make domestic laws or measures to help combat human rights violation with legislations. Include the right to life, right to religion, right to freedom of speech, right to freedom from degrading treatment, freedom of thought, and right to freedom to opinion and expression, right to freedom of discrimination on basis of race, colour or gender. Right to education is also included in human rights. No human is born racist or unequal but is made. This makes education an important tool to help people understand the importance of human rights.
The threat of terrorism has made a more dangerous society where there is a rampant violation of human rights. Recent wars and violence in the world have made it pretty susceptible to the human rights violation. Human rights are based on basic principles that make society a more civilized place. It revolves around rights and equality between men and women and everything that humanity stands for. Human Rights Council keeps a look for human rights violations. The laws are designed to safeguard human rights and to enforce and empower it. Human rights are spoken in all religions. Governments must take domestic laws to protect their citizens and others. The importance of human rights is incomparable in this world. Human rights are fundamental to human growth and are essential. to make a better society, we need education of human rights. An important part of a civilized society thus making the concept of human rights has to be of universally applicable.

INTERNATIONAL HUMANITARIAN LAW

International humanitarian law is a set of legal laws that regulate the conduct of war. It seeks to protect the people who do not participate in the war and to limit the methods and the repercussions of war. International humanitarian law is a part of public international law. It is made up of a set of treaties, rules, principles and regulations. It also follows the customary war laws that regulate the conduct of participants of the war. Its main purpose is the proportionality between the military necessities of humanity and its humanitarian cause. The sources of international law are international agreements such as the Geneva Convention 1, 2, 3 & 4, protocol 1 and 2, and the Hague regulations. All these agreements aim to protect civilians, non-combatants and medical professionals who are not participants of war but are victims of war.


International law divides conflict into international armed conflict and non-international armed conflict. International armed conflict is strictly between two states only as stated in the article two of all Geneva Convention. The rules regarding combatant status, conduct regulations and methods of war are more conditioned for international armed conflict. Non-international armed conflict is defined in article 3 in all Geneva Convention. Any inclusion of a non-state actor makes the war a non-international conflict. IHL follows some basic rules that every country that had signed or ratified has to agree to. Non-combatants or the civilian population who are not participants of the war shall and must be protected at all times. Any prisoner of war must be protected from violence. It prohibits perfidy. Treatment of the wounded and the sick is done by medical groups or the Red Cross, any attack on medical personnel is considered as a war crime. There must be a clear difference between non-combatants and combatants. There should be special protection given to women, children and medical professionals. International humanitarian law also speaks about the prohibition on certain kind of weapons such as cluster weapons which harms all combatants and non-combatants. It also forbids the conscription of children under the age of 15 into armed forces. The use of protective emblems to attack other parties who are participants of the war is considered illegal.


Crimes such as genocide, attacking civilian population, ethnic cleansing and using child soldiers in war are considered as grave war crimes. Present trends in wars are likely to continue. International human rights bodies should make more stringent laws. Given that most human rights laws are governed by the state and its behaviour. The state must take strict actions against it. International humanitarian laws serve the purpose of keeping a balance of the necessity of war and humanitarian laws. It aims for war to occur without the loss of any non-combatants. Combatants who knowingly break the law are subjected to go under a tribunal for their crimes and these individuals are held accountable for the war crimes that they have committed. It is rightly said that only in total abandonment of human conflict will human rights prevail. The human capacity and to inflict suffering to one and other is inevitable in the history of mankind but when we can’t prevent it then we must regulate it and reduce the amount of suffering.

THE LEGAL HISTORY OF MADRAS

The judicial system in madras occurs in three stages where the British tried their best to administer justice in the town. The company first formed a judicial structure in the towns to help the Englishmen living in the town and to secure justice for them. But slowly the company acquired a large area where they could not neglect the indigenous population anymore thus this lead to the development of a through judicial systems. Madras was previously known as a Madraspatnam which was a small village. Francis Day was sent south by the East India Company to acquire land due to the shortage of cotton in the north and to ease the trade. Francis Day procured a land grant for the area of Madraspatnam after negotiations with the Raja of Chandragiri to build a factory in 1639. The land was used to build the Fort of St George. The Raja had also granted to the Company full power. the charter of 1660, This allows the company to form laws in accordance to the English laws for its government. The charter gave the Company power to make laws for its government and for that of the factors, masters and mariners employed in voyages, provided such laws were not repugnant to the laws of England. The town of Madraspatnam was divided into white town and black town.

The Town of Madras was subordinate to the town of Surat. The administrative head on the town was called as an “Agent “. The agent was a subordinate to the president of the factory in Surat. He was supposed to administer justice in the town. The serious offenders and the cases should be consulted by the company authorities in England. But there were defects the judicial power of the agent and the council was vague and indefinite and many delays also, they did not have any. The black town had a different system of administration of justice. The old tradition of the judicial system was allowed to continue where the village headman was to judge all cases of the village. The village headman was called as “Adigar”; the court was called as the Choultry court. Then the Choultry court became a court where petty cases would be decided. The most cases were decided by the agent and his council or the raja. There is no conclusive report where these cases were held due to lack of reports. But the existing reports show that there wasn’t a clear system that was followed. The officers in the Choultry court were not similar to the laws of the natives. This shows that the judicial system was rudimentary.

Chapter 1660, This empowered the governor and his council to authorize or give death penalties and death sentences for capital offences. The charter vested more powers in the Governor-General and his council which gave them extensive judicial powers. The agent and the council uncertain about their jurisdiction and their judicial duties deferred the case to the company authorities in England. The company made the town of Madras a presidency town. This gave extensive judicial power to the agent and his council who were elevated to the position of the governor-general and his council. The court of judicature, Steynsham Master who was the Governor of Madras reorganize the Choultry Court and established a court of judicature in 1678 for the trial of civil and criminal cases by jury deriving authority from the charter of 1661 which vested all judicial powers to the governor-general and his council. The court would take in appeals by the Choultry courts. The cases in the court were decided as per the English laws with the help of jury of 12 men. The Governor and Council were to have original jurisdiction and appellate jurisdiction in cases decided by, the Choultry Court. Thus a well-administered judicial system was implemented. This established two courts and well-understood jurisdiction of cases. There were pitfalls in this system too. The officers who sat at the court were not lawyers or familiar with the laws of the native land. The officers would not dispense justice at a higher level as they were not lawyers. The judgment of the cases was subpar but this was a step ahead from the previous court system. This much-needed improvement from the elementary implementation of justice that was previously administered in the town. The lack of lawyers was apparent.

Admiralty court– Under the provisions of the Charter of 1683 a new court was established in Madras on 10 July 1686. It was called the admiralty court. The court was to decide cases according to the rules of equity and a good conscience and the laws and customs of merchants. It has to have the power to hear and determine all cases, mercantile and maritime in nature, concerning persons within the charter limits of the Company; all cases of trespasses, injuries and wrongs, done or committed on the high seas, or within the charter limits; cases of forfeitures and seizures of ships or goods. The court practised English civil law instead of the common law in England as the jurisdiction of the court was extended to ships from different countries. The civil law that’s was used was an amalgamation of the maritime customary laws. The court in 1687 secured services of an English professional lawyer, Sir John Briggs who would preside over the court as written in the charter. The presence of a lawyer decreased the need for the governor-general and his council to sit at the court. Thus the role of the governor-general and his council in the court declined. The court of admiralty exercised wide jurisdiction as opposed to what was stated in the charter. The establishment of the Admiralty court was a landmark in the judicial history of Madras as for the first time a professional lawyer was to administer justice and the executive gave up judicial functions in the admiralty court.

Mayor’s court– It was common and custom in England that the judicial powers would be deferred to Municipal Corporation of the city, this was seen in London. The British thought to apply the same administration in Madras. The corporation of Madras consisted of a mayor, 12 Alderman and 60 Burgesses. Every year the mayor was selected by the Alderman. The tenure was for life or the period of stay in Madras. The first mayor and the 12 Alderman were already selected by the charter itself. The Burgesses were to be selected by the Mayor and the alderman. The court was held every fortnight and the quorum was the Mayor and two aldermen. There was an existence of a jury who convened to judge criminal cases. The Mayor’s Court dispensed justice not according to any fixed law, but as its Charter laid down.

The judicial administration in madras during 1639-1726 was elementary. Justice was administered by non-lawyers. Their judgment was subpar and at their discretion. They had no judicial training and very much vested in the executive decisions of the company. When the company first procured Madras their focal point was still trading. Thus the earlier stages of the judicial system in Madras were rudimentary and no proper demarcation of jurisdiction. The officers were not familiar with the Hindu laws which were applied to the Hindu native and the Muslim laws that were applied to the Muslim natives, this lead to major inconsistent judgment. The situation changed after 1687 when there was an introduction of some sort of structure to the judicial system. The charter of 1688 showed signs of freedom of the judiciary from the executive powers but installation of the Mayor’s court changed that. Yet, the judicial system introduced a democratic structure to India where the autocratic rule was used.

THE THEORY OF SEPARATION OF POWER AND ITS REAL LIFE APPLICATION

The theory of separation of powers is a doctrine of administration of a state. This theory states that the different functions of the state that is, the legislature, the executive and the judiciary must be separate and independent from each other. This distinction is made with understanding that the branches of the government should not conflict with each other. In this doctrine, it is believed that no single organ of the government should hold all the powers of the government thus there should be a dilution of the powers in different organs which would lead to the smooth running of the government. This theory was given by Montesquieu who was a French judge and a political philosopher. According to him, the powers of the government should be divided into between the legislatures, executive and judiciary. The legislature deals with the law-making process of the government, the executive would deal with the enforcement of law and the judiciary was responsible for protecting and resolves the disputes of the law. During the 17th century, most of the states were ruled by the monarchs. The monarchs were the amalgamation of all the three divisions of the state in one man. All the powers were concentrated in one man and he was the state, consequently, doctrine or theory which states the separation of power was a revolutionary idea. Here Montesquieu has divided the powers between three organs of the government. The independence of the organs means that people’s liberty would be protected. This system of distribution of power makes sure that the other organs would limit the powers of each other and prevent each other from being supreme. It forms an effective arrangement of checks and balances… It means that all the organs of the government have the same level of power so they can balance each other. The structure allows the smooth functioning of the government while protecting people’s liberty.

The UNITED STATES OF AMERICA –

The first big support to this theory came from the founding fathers of the Constitution of the USA. The first 3 articles of the constitution of the United States of America establishes the 3 organs of the government, the legislative branch, the executive branch and the judiciary.

Article 1 of the constitution establishes the legislative branch. The legislative branch consists of the Congress which is responsible for the making laws in the country. Article 2 of the constitution establishes the executive branch which comprises of the President of the country. The President is responsible for the implementation of the laws made by congress. Article 3 of the constitution establishes the judicial branch which is the United States Supreme Court which preserves and interprets the laws made by the legislative branch. 

The main reason the theory was adopted into the country was because of its checks and balance system for example when the Congress makes the laws, the President has the right to veto them and the Supreme Court has the power to declare them unconstitutional. Therefore the separation of power between the three organs ensures the systematic and smooth functioning of the government and secures the people’s liberty in the state.

INDIA –

India is a constitutional democracy but it does not offer a solid differentiation of powers. Although India doesn’t follow the principle rigidly the functions of each organ is clear. Article 296 in the Indian constitution states that the executive powers rest on the President of the country and in the states, it rests on the Governors of the state. The president is assisted by the Prime Minister and his cabinet of ministers in the executive matters. The president is called as the chief executive and has blended functions. The President is authorized by the constitution to give ordinances in emergencies as his main legislative function. He can also grant, suspend and dismiss punishments or any sentence, he is performing the judicial function in appointing of the judges in the Supreme Court. This shows that there is no absolute implementation of the principle of separation of power. 

The Parliament of India is the supreme legislative body in India. The Parliament formulates the law in India. It has two houses – the council of states or The Rajya Sabha and the house of the commons or The Lok Sabha. The houses are headed by the President of India. The Supreme Court of India is the judicial branch of the three organs of the government.

 The Judiciary is vested with the power to safeguard the rights of the people as per the Constitution of India. The existence of all the checks and balances would make sure that the organs would not exceed the constitution limits The laws framed by the legislature can be repealed by the Supreme Court of India if it is found inconsistent with the Constitution on India. Parliament can impeach judges of Supreme Court and High Courts of states for their incompetence and mala fides or bad faith. The President can set aside the laws made by the legislative body if it is not under the values set by the constitution of India. These Checks and balances become preventive measures against abuse of power and corruption.

In conclusion, the theory of separation of power is a radical concept at that time is not attainable. The complete separation of powers is not desirable nor is it realistic. The government functions due to the mutual relation between the three organs of the government so complete separation would not benefit the government. The complete separation also leads to conflict and confusion. The theory’s main central idea was to protect the liberty of the people but the liberty of the people is done by protecting the fundamental rights of the people, the protection of the human rights to the citizens, independence of the judiciary and keeping the spirit of democracy.

What is Social Justice?

Social Justice is a word that we hear a lot on public platforms and in the media these days. The idea of justice encompasses notions like equity, fairness, getting what one deserves, and the absence of bias. It is a fundamental element for the proper and ethical functioning of any civilization or society. A society that is lacking in justice and does not seek to amend for this lack will be marked by discrimination, violence, and a loss of the recognition of the intrinsic value of life. It is fundamental to our existence as human beings and necessary for the harmonious co-existence of diversities.

The United Nations’ definition of social justice is as follows: “Social justice may be broadly understood as the fair and compassionate distribution of the fruits of economic growth.” The US Centre for Economic and Social Justice defines it as thus: “Social justice encompasses economic justice. Social justice is the virtue that guides us in creating those organized human interactions we call institutions. In turn, social institutions, when justly organized, provide us with access to what is good for the person, both individually and in our associations with others. Social justice also imposes on each of us a personal responsibility to work with others to design and continually perfect our institutions as tools for personal and social development.” The concept of Social Justice arose in the 19th century during the industrial revolution in Europe. The industrial revolution saw the emergence of Capitalism which thrived on exploitation and cheap labour. Concepts of social justice were brought forward to remedy the injustices that were being thus perpetuated in society. However, today we use the term to not only signify disparities in economic situations but also various other social injustices and discriminations. These could be related to gender, caste, race, ethnicity, religion, disability, or anything else that becomes a means by which negative differentiation comes about in society.

Social justice has become an umbrella term under which various struggles and fights against societal inequalities take place. It is intrinsically connected to human rights and operates under the assumption that all individuals are equal and have the right to enjoy equal access to health, justice, societal privileges, etc irrespective of the background or culture that they come from. It is employed to fight systemic injustices manifested in political, economic, and legal structures. Equality can be achieved through protests which are to lead to changes in policy. It is also supportive of affirmative action that allows groups that have been marginalized and oppressed over centuries to be given compensatory benefits. This is to ensure that they are able to move ahead and be on par with their peers in the long run, while also not being victimized by any oppressor. It stands for political representation and equity in all spheres of life.

Social justice should be the concern of every honest individual in society who cares about his fellow being. Those who fight for social justice are to understand the deeply rooted inequities in society and call them out, working towards better policies and laws. But it also involves changing mindsets, unlearning privileges, breaking apart structures of thought, opening up spaces. Recognizing privileges and being allies to those who have been subjugated by powers and thereby forced into a life of heightened oppression and lesser opportunities is absolutely necessary at this juncture in history. We have come a long way and won many battles against societal evils but there are more that need to be fought, and there is always more that we can do for others.

HOW LAW HAS AN IMPACT IN YOUR LIFE

The most well-known manner by which individuals portrayed their noteworthy common equity issues is that it’s either misfortune or God’s will for them. … In the event that I think something has simply transpired in my life due to powers beyond my ability to do anything about, I’m most likely not going to go down to the nearby legitimate office and request lawful assistance with an issue that I don’t comprehend is lawful.

Everything to lay it out simply, the law is the thing that keeps a great deal of things running easily and precise. Without law there would be a ton of mayhem. We people can be very awful animals to one another, envision there wasn’t a law set up to oppress murderers,i can wager you there would be much more deaths, on the other hand , Stealing wasn’t a wrongdoing, admirably I’ll let you picture that in your mind. Laws are what guard you, they influence your life in a bigger number of ways than you can even think.

Satisfaction and the law appear to be random, isn’t that right? The law harshly disallows individuals from getting things done and afterward backs up its principles with alarming disciplines. Be that as it may, envision what life would resemble if there were no law. Being burglarized or assaulted could turn into a typical event, and the greater part of the advantages of society we as a whole underestimate would not, at this point be conceivable. At the point when you consider it, the general purpose of having law is to improve our lives.

Great laws assist individuals with carrying on with more joyful lives. So if a nation needs to make great laws, it ought to realize what satisfies individuals. Furthermore, luckily, there’s been an ongoing blast of examination into bliss. In what capacity would that be able to investigate be utilized to improve laws?

Some people are affected more and others less. However, the law and government do affect us all in some common ways. Most importantly, the law and government affect us by allowing us to live in a society where we are not related to most other people and we generally do not even know who they are. Most definitely the so-called “civil law” or, depending on you location, the “common law”. The “law” is a set of rules designed to regulate relations (a) between humans and (b) between humans and objects. What exactly those rules are, and how they operate, varies. Typically, when people think of the “law”, they think of circumstances when the “law” becomes visible, i.e. in exceptional circumstances that are potentially life-changing, i.e. criminal law,or when the state makes it’s presence known, by demanding you pay taxes. However, daily life is usually regulated by a much larger degree by the so-called “zivilrecht”, for lack of a better word, a “law of interpersonal relationships”. You get up in the morning, out of bed? Chances are you bought that bed someplace, so the law of contracts, which governs sales, has something to do with it. The bed is standing in a flat or house, which is either rented → law on lease agreements, or owned → property law. You take a shower → you have a service agreement with your utilities provider, who ensures that there is water in the pipe leading to your domicile. You get dressed → law of contracts concerning how you bought the clothes you wear, → property law concerning you’re allowed to do with them as you please.

You leave house and walk down the street → traffic laws are designed dot make that a safe and convenient experience: and enter a coffee shop. There, you buy a cup of coffee, a bagel, and an newspaper for your breakfast → depending on where in the world you are, you just entered into, and executed, anything between one and nine contracts governing the passage of ownership of coffee, bagel and newspaper to you, reciprocal obligations (“stuff” for “money) concerning the quality, payment of the items you purchased, and them now “belonging” to you, and not to the coffee shop, any more.

If the coffee shop is part of a chain, chances are you will not be contracting with the guy behind the counter, but with a company (f.e, Starbucks?), so laws on representation and agency also apply. In 90% of the cases, if your coffee is cold, you will complain to whoever sold you your coffee if the coffee is too cold → Implied terms, coffee is suitable for human consumption and of a “typically to be expected” quality and temperature.

All of this happens more or less “in plain sight”, but out of mind. It is supposed to happen that way. The law is there, more or less invisible to non-lawyers, but it only becomes visible when things go wrong. y Our everyday lives are typically enmeshed by legal rules, most of them concerning “commercial” transactions in the widest sense. That is the area of law that most of us will find prevalent in our everyday lives. Everything else, Taxes, criminal law, etc., is not nearly as prevalent.

BY GOVIND SAGAR

LAW IN INDIA

Law is essential for society to function. The chaotic human nature has proven that laws are guidelines for humanity’s road to harmony. According to Hugo Grotius, perception of law he argued that law arises from the social impulse of humanity. Law is a tool that maintains the balance between those who are victims are those who harm the victims. Law is dynamic and ever-changing. It changes along with the consequential change in human nature. Law has always reflected human nature. The crucial part of the law is that every man regardless of his wealth, gender, community, and color is equal in the eyes of law. Thus the law is an important fragment of human existence.

Law is classified into civil law and criminal law. Criminal law is laws or rules created for the protection of the public against potentially serious crimes. The laws are against acts that are morally, ethically wrong, and threatening to the public welfare of the community thus halting the progress of the society to a harmonious society. Criminal offenses are considered offenses against the public. Criminal cases are punished by ordering fines, imprisonments, or rehabilitation of the guilty or even death sentences. Criminal cases are always filed by the government as it is a crime against the public as a whole. Criminal law in India is governed by the Indian penal code, The Code of Criminal Procedure, and the Evidence Act. The criminal acts are categorized according to the nature of the act as felonies or misdemeanors. Felonies are serious crimes; they are classified into different classes and given different punishments according to the severity of the crime. Felonies are punishable by imprisonment or death. Misdemeanors are violations of law or lesser offenses such as parking violations and are punished for a sentence lesser than a year.

Civil law on the other hand is offenses against individual persons. The party at fault or the guilty person has to pay compensation or obey the laws for a remedy as said by the law. Civil law is practiced to uphold the individual’s private right and find suitable remedies for the violated rights. Civil law aims to solve disputes or disagreements between individuals, families, or companies by providing compensation to the party that is harmed. Civil law is classified into Contract, Tort, and Family Law. Contract law is rules are applied when two or more parties agree to enter into an agreement or contract; all parties in the agreement are required to respect the terms of the agreement. Any parties found to have broken the terms of the contract then they have committed a civil wrong and broken the contract. Contact law in India is based on the English common law of England. Tort Law is applied when there is personal injury or negligence such as trespass. The laws of torts in India in ancient times were the Muslim Sharia laws and the Hindu laws which had a very restricted expansion of the idea of torts. When the British established courts in India which were run as per the English laws, Torts were introduced to the Indian judicial system. Family law is concerned with divorce, inheritance, adoption, marriage annulment, birth certificate, and child custody matters. Since India has a diverse population where different religions are followed, India’s family laws are based on different religions. The Hindus follow the Hindu Marriage act of 1955, the Muslims follow the
Muslim Personal Law Application Act 1936, Christians follow the Indian Christian marriage act of 1936 and the Special Marriage Act 1954 applies to all persons regardless of their religion, the caste of community.

Law is always been dynamic and the crux of the law is that it offers justice to people regardless of his wealth, gender, community, and color is equal in the eyes of law. Law in India is a fairly complex conception of rules. India has grown its roots into the judicial system the British left behind. India did although have the existence of various law systems before which was very restricted. With the introduction of English law systems and the introduction of torts in the Indian judicial system gave the people more chances for aggrieved parties to come to court.

CHILD SOLDIERS

Currently, 46 countries still recruit and train children under 18 years old. Children as young as 8 years old fight are the front lines act as spies, or supply weapons or lookouts or messengers or as suicide bombers or sexually exploited by the armies or non-state armed groups. Some of these children are either kidnapped or are forced to join these armed forces. Many are forced to join them because of financial constraints and social reasons; many are recruited by offering children with money or drugs.  Many girls are kidnapped and kept as sex slaves by the male fighters. These children are trained in weaponry to fight and are exposed to violent crimes that affect them mentally. Underage girls are recruited as sex slaves by male fighters. Currently, there are an estimated 250000 child soldiers in the world.

WHY CHILDREN ARE RECRUITED AS SOLDIERS

Despite the many drawbacks that children have they are more mouldable and can be indoctrinated easily. There are also many other reasons that children join the armed forces. Many join due to their financial backgrounds as they have to provide or make a contribution to their family, some join as their belief that the armed forces can keep them safe, lack of employment opportunities and poverty leads them to become child soldiers. Other children may be threatened or deceived into joining them by bribing the children with the hope of new friends or drugs. While others join on their own accord. Children who join on their own will join due to avenge their families or honor of fighting.

Effects on the children

Children who join these armed forces and groups are involved in violent initiation traditions where they kill their family members or friends to show loyalty to the group. Such kind of violent acts strains the relationship they have with their community and scar them mentally. Many of these children are trained to fight along the front lines or given secondary roles such as spies or cooks or messengers. Regardless of their job prescription, children are mentally affected. Many children have zero access to education and safe living conditions. Many children have psychological disorders such as post-traumatic stress disorder, depression, higher risk of violent behavior, high risk of suicide, and anti-social behavior. Girls are made into sex slaves and are violently assaulted and raped. They suffer from pre and post-pregnancy difficulties from rape. Rape affects girls mentally and physically. Due to unhygienic living conditions where there are no menstrual products and rape, they are more prone to getting UTIs or STDs. All these factors make rehabilitation a difficult process for children.

CASES OF CHILD SOLDIERS

AFRICA-

Many African countries still recruit child soldiers even though most African countries have agreed and ratified the African Charter of Rights and Welfare of The Child in 1990 which forbids the recruitment of children below the age of 18. The Democratic Republic of Congo has the highest number of child soldiers in the world. This is due to the first and second civil war in Congo which the army used by led by Thomas Lubanga Dyilo was 30 percent of children. A 2017 UN report on child soldiers in Africa said that the members of the terrorist military group in Somalia were 50 percent under the age of 18 and recruitment of child soldiers was also done by the Somali National Army.

MIDDLE EAST-

The Iranian government has started to recruit child soldiers from Iran and Afghanistan to participate in the Syrian civil war in 2018. Palestinian group Hamas which controls the Gaza strip still recruits children into its militia. The people’s Protection Units which is a militant Kurdish party in Iraq has abducted more than 200 children to enlist them into the Syrian civil war in 2018. Many non-state actors in the Syrian civil war have recruited child soldiers to participate in the war. Saudi Arabia and the United Arab Emirates have recruited children from Sudan to fight in the Yemini Civil war and the British SAS were allegedly involved in training these soldiers.

ASIA-

In Afghanistan, many child soldiers are recruited by the Taliban. In Myanmar, the government army recruits children from the young age of 11 years old were recruited in 2002 as reported by a UN report. The Moro Islamic Liberation Front and government-linked paramilitary forces were recruiting child soldiers, in 2016 this was discontinued but according to a UN report in 2017 other armed groups were still recruiting children.

EUROPE –

All European nations have agreed and ratified the Optional Protocol on the Involvement of Children in Armed Conflict, so the use of child soldiers isn’t in practice.

The ratification of the Optional Protocol on the Involvement of Children in Armed Conflict has significantly curbed the use of children in war as currently, 126 countries have ratified it. The treaty bans the recruitment of children under the age of 16 and also forbids non-state actors from recruiting children for any cause. The main struggle of child soldiers is their reintegration into society. Many of them have resentment and feel guilty about their community. It’s a very long process for them. They need to be given a safe environment, create a sense of forgiveness from the family. Most importantly need given access to education and support.   The use of children in armed conflict is a desperate human rights issue that needs to be resolved. This is a desperate human rights issue. The rights of these children must be protected. Government and non-state actors must make efforts to safeguard the rights of these children.

The Evil of Human Trafficking

One of the greatest evils that we face in the 21st century is the phenomenon of Human Trafficking. It is considered to be modern-day slavery with around 24.9 million victims trapped in it. According to a 2017 report by the International Labor Organization (ILO) and Walk Free Foundation, of the 24.9 million victims caught in trafficking rackets, around 64% were exploited for labour (16 million people), 19% exploited sexually (4.8 million), and 17% exploited in state-imposed labor (4.1 million). According to the United Nations Office on Drugs and Crime, ‘Human Trafficking’ is defined as, “The Act of recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” More than half of the victims are women, another 20% are men, and the rest are children. Victims are either abducted, threatened or forced, or they or someone in charge of them is promised money and other material benefits. Many people get trapped in trafficking units since they are promised a job offer and an escape from their poverty, inability to provide for themselves, and their vulnerability. But they find that they have been tricked once they follow through the offer and then are unable to get out, usually isolated from their culture and unable to contact anyone they know.

close up photo of padlock hanging on chain link fence
Photo by William Eickler on Pexels.com

Human trafficking can be transnational, which means that the victims are sent abroad to the place where they are exploited, or it could even be domestic, where the victims are not forced to travel as much but still exploited within their own country or community. Those who organize and execute such trafficking chains make huge amounts of money from these exploits of dehumanization which is one reason why it continues to grow. And most often, these people are never caught and get away with the illegal exploitation of thousands of people. The seemingly lax methods by which prosecution of traffickers are done and the fact that most of them never face any punishment or consequences are appalling and point to a need for more stringency in our systems of law. The fact that this is an exponentially growing industry in an age when we claim ourselves to be more civilized than ever before points to an ethical hollowness underneath our many jargons of progress.

Trafficking being such a pervasive global phenomenon means that you will probably come across a trafficker or a victim in your life. It is the need of the hour that we know how to respond to situations of crisis as well as be knowledgeable about these issues. Here are some practical things that can be done to fight human trafficking:

  • Advocate for better laws and swifter actions on traffickers. Try to highlight the gravity of the issue in any way you can. Work with organizations that support this cause (like International Justice Mission, Apne Aap, Hope for Justice, Oasis India, Stop the traffik)
  • Spread awareness about trafficking. Be informed and encourage others to do the same. Discourage people from accepting job offers whose sources seem obscure and unverifiable.
  • Support organizations working towards finding and freeing those caught in trafficking. Ensure that these victims are protected and able to provide for themselves once they are back. Give them jobs and means to build a life, actively work against any stigma that may be surrounding them. Be considerate of their mental health since many of them will be severely traumatized by their experiences.
  • Learn to identify signs that an individual might be in distress, particularly while traveling or in public spaces. A few of the things we can do is to look for signs of abuse or injury, if they are avoiding eye contact with most people, if they seem anxious about security checks or of anyone who approaches them, if they seem malnourished and uncomfortable but remains silent.

Human trafficking can be fought on multiple levels but it will only end when the masses are freed and the traffickers are vanquished. For that, we have to do much more than wheat we are doing now. We need to realize the importance of the issue and take it up on a global level, and we need to stop being silent on these issues by assuming that it will never happen to us. The day we stop being complicit to these acts by our silence will be the day change will begin.

 

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.

The Rwandan genocide

The year 1994 marks the occurrence of one of the most horrifying incidents to ever happen to humanity.  The Rwandan genocide was a systematic killing of the people of Tutsi ethnic minority by the members of the Hutu ethnic majority in Rwanda.  The main agenda of the mass killings that were instigated by the Hutu government was to kill all of the members of the Tutsi community in the country… About 800,000 to 1 million Tutsi were massacred by the Hutu government, their militia and ordinary citizens who were trained by the government. The genocide was halted when the RPF (Rwandan Patriotic Front) took control of the country through military tactics.

 Racial tensions in the country between the Tutsis and the Hutus served as fuel to the genocide. During the colonization of Rwanda by the Belgians and the Germans, the Tutsis ethnic minority was favored and the Hutus ethnic majority was discriminated against. The Belgians and the Germans supported the Tutsi monarchy and decreed that all local chiefs must be Tutsis. A Hutu revolution in 1959 forced more the 300,000 Tutsis to leave the country in fear of their lives and 1662 the Hutus captured and exiled the Tutsi monarch and declared that Rwanda is a republic country. Belgium granted Rwanda independence in July 1962. Post-independence with the majority of the population being Hutu, a resolutely Hutu government came to power. The leader of the new Hutu government was Habyarimana who founded a new party and the only party in the country called the national revolutionary movement for development. Now with the Hutu government violence against the Tutsis became the new normal.

In 1990- 1993, the Hutu government fought wars with the RPF (Rwandan Patriotic Front).  The RPF was mainly Rwandan refugees from Uganda. These actions of the government and the RPF started the civil war in Rwanda. Seeing, how both parties were running a loss, the Arusha accords were signed. The Arusha accords were the peace agreement between the government of the Republic of Rwanda and the Rwandan patriotic front to end the three-year-long civil war that battered the country in 1993. But the Rwandan genocide was not an ordinary war crime, it was predetermined and a carefully planned massacre of the Tutsi people. The Hutu ruling government had members of the party who were against Habyarimana and believed that a final killing of all the Tutsi people will solve the problem of the country. The Hutu power wing trained and armed youth militia groups such as the Interahamwe and the impuzamugambi. The youth militia youth had already been actively killing Tutsi people across the country. In 1990, the government armed civilians and trained them with the pretense of self-defense against the RPF. But the peace agreement fell through when presidents Habyarimana plane was shot down. Who was responsible for the shooting down the plane is still unclear but this incident catalyzed the genocide. On April 7th, the genocide started with the murder of moderate Hutu the Prime Minister Agathe Uwilingiyimana. This created a power vacuum in the country where the country had no clear leader. An intermediate government was formed with Hutu power leaders was formed.

The genocide started on 7th April of 1994, mass killings in Kigali started with the killing of moderate leaders and liberal journalists in the capital. The extremely efficient militia and the trained ordinary citizens proceeded to slaughter all Tutsi insight. In the capital city of Kigali, the military set up roadblocks where they would check a person’s identity card, if the card classified them as Tutsi then they were murdered. Ordinary citizens were prompted to kill the neighboring Tutsi. In the rural areas where everyone knew each other, it was relatively easier to identify and kill Tutsi people.  Within months 800’00 to 1 million people had been killed. The Hutu military also used other disgraceful methods in the genocide.  The military supported group Interahamwe used rape as an instrument to hurt the moderate Hutu and Tutsi women. Not only did the Interahamwe but the soldiers of the army of the liberation of Rwanda, the presidential guard, and Hutu civilians also engaged in sexual violence against Tutsi women. The Interahamwe used men who were HIV positive and formed them into rape squads. Every day around 800 Tutsis were killed.  Only in July of 1994 did the genocide end. The genocide ended when the RPF took control of the country and the capital. The remaining Hutu population fled to the country of Zaire (now the democratic republic of Congo) in fear that the army would retaliate for the genocide.

The genocide had many repercussions, due to sexual violation; many female survivors had a long list of sexually transmitted diseases, unwanted pregnancies, and self-isolation. The genocide had left many buildings inhabitable and the economy of the country was in a deplorable state. The country since then has bounced back. The country has adopted a new constitution, the ethnic classification on the Rwandan identity cards were removed. The economy of the country has grown at a rate of 8 percent making Rwanda one of the most invest able countries in Africa.

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.