5 Point Something on Judicial Review and Judicial Activism

  • INRODUCTION

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

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

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

  • PROS AND CONS

JUDICIAL REVEIW

PROS

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

CONS

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

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

JUDICIAL ACTIVISM

PROS

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

CONS

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

JUDICIAL REVIEW

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

JUDICIAL ACTIVISM

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

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

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

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

West Bengal Governor Jagdeep Dhankha calls Chief Secretary HK Dwivedi over lawfulness circumstance in post-poll Bengal

Secretary HK Dwivedi on Monday to discover the means being taken by the organization to manage the “incredibly disturbing” law and order circumstance in post-survey Bengal, which he named as “retributive viciousness”.

Dhankhar, who has been in constant disagreement with the Mamata Banerjee-drove government over the post-survey viciousness, scored up the charges to another level on Sunday, by tweeting: “Amazingly disturbing law and request situation. The security climate is genuinely settled. In a particularly dreary circumstance called upon (the) boss secretary to brief me on the rule of peace and law circumstance on Monday and show all means required to contain post-survey viciousness.”

“The state is in (the) grip of unprecedented post poll retributive violence at an unimaginable scale, with lakhs of people being displaced and property worth hundreds of crores vandalised. Rampant vandalism and hooliganism have resulted in large scale arson, loot, destruction of property,” he tweeted.

“Police is locked in as an augmentation of the decision regulation to let free malevolence on political rivals. In a particularly bleak circumstance, the main secretary of the state will be called upon to brief me desperately on Monday, seventh June, and demonstrate all means required to contain post-survey savagery,” Dhankhar said.

The lead representative claimed that individuals who have cast a ballot against the TMC were casualties of “designated viciousness”. Transferring a video in his Twitter handle, the lead representative said, “this to ‘rebuff and teach’ rivals for ‘setting out to cast a ballot in a majority rule government”.

Censuring the supposed occurrences of viciousness and “social blacklist and forswearing of advantages to individuals who had decided in favor of the TMC rivals”, he said individuals are compelled to pay “coercion charges for living in their own home or maintaining their own business”.

“Democratic values are openly shredded and trampled upon by the ruling party. People are in mortal fear of the police and that in turn is at the feet of the ruling party rogue elements,” he tweeted.

He kept up that the state functionaries “are not perceiving this discomfort, substantially less finding a way ways to contain it”.

The lead representative and the main pastor have been occupied with a conflict of words regarding post-survey brutality and the lead representative’s visit to Sitalkuchi in Coochbehar and Nandigram.

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.

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

The Right Way of Enjoying Your Freedom

Freedom is a powerful word. It is the basic right of every individual and no one can deny it. But are you using your freedom in a proper way? Have you thought that your sense of freedom might deprive that of others? A G Gardiner’s ‘On the Rule of the Road’ is an essay teaching the readers on the right way of enjoying freedom.

The essayist narrates a situation where an old lady walks down the middle of a street ignoring the traffic rules and other vehicles. This causes a great confusion and she doesn’t seem to care about it. It is a dangerous situation where accidents can happen and people can get hurt. But when it was pointed that she should walk in the pavement not on the road, she replies that it is her liberty to walk wherever she wants. Just like this woman, there are many who seem to take advantage of their ‘liberty’. What we need to realize is if everyone does whatever they want in whatever way they like because it is their liberty, “then the end of such liberty would be universal chaos”. 

“Everybody would be getting in everybody else’s way and nobody would get anywhere. Individual liberty would have become social anarchy. There is a sanger of the world getting liberty-drunk…”

So, the traffic rules are made to ensure that everyone can enjoy their liberty. When the policeman at the intersection directs the traffic, he “is the symbol not of tyranny, but of liberty”. If you can’t understand the statement, think of this situation as the essayist provides. You may be in an urgency to reach your destination, but when the policeman stops you, you may think he is curbing your liberty. But, if you reflect on it, you will understand that if he doesn’t stop you, he won’t stop anyone and everyone will clash into each other. 

“You have submitted to a curtailment of private liberty in order that you may enjoy a social order which makes your liberty a reality”. 

“Liberty is not a personal affair only, but a social contract”. Does the statement mean your freedom is limited by society? No, you are free to do whatever you like unless it doesn’t affect that of others. You have both personal liberty and social liberty. You may dress however you want, dye your hair, eat whatever you wish, like and dislike at your will because it is your liberty. No one can question your personal liberty. Likewise, the other person has the liberty to differ from you. You have your own kingdom where you can do whatever you wish. But, once you step out of the kingdom, your “personal liberty of action becomes qualified by other people’s liberty”. 

You may want to practice music in the middle of the night, you may do so if you are on the top of Mt. Everest. If you do so in your house, you are disturbing the sleep of your family members. If you do so in the streets, you are disturbing your neighbours and they will object to this. Their objection will remind you that your liberty of practicing music is interfering with their liberty to sleep peacefully and so it shouldn’t be done. 

“There are a lot of people in the world, and I have to accommodate my liberty to their liberties”.

We often forget this and find fault with others. We should be considerate to the rights and feelings of others because it is the “foundation of social conduct”. We should stop focusing only on our liberties and start considering that of others and the responsibilities that come along with them. We need law to limit some of our liberty in order to ensure greater liberty.

“Liberty is not a personal affair only, but a social contract”

Emergency Provisions

The provisions related to emergency are given in Part XVIII of the Indian Constitution. Article 352 to Article 360 deals with the emergency provisions. An emergency is imposed in the country or a state when law and order go out of control. To prevent the country’s unity, sovereignty, and brotherhood, an emergency may be imposed in difficult times.

There are three kinds of emergency:-

1. National emergency

2. State emergency

3. Financial emergency

HEADINGS:

1. What is National Emergency

2. What is State Emergency

3. What is Financial Emergency

What is National Emergency

National emergency is given under Article 352 of the Constitution of India. The President can declare a national emergency in a situation of war or if the country’s security is at stake and under threat, or armed rebellion. Indian President must be satisfied with the happening of these grounds to impose a national emergency. The President may impose national emergency in the whole of the territory of India or even in any particular territory or state as well. This power was given to the President by the 42nd amendment in 1976.

In India national emergency has been imposed three times:-

1. 1962 Indo-China war

2. 1971 Indo-Pak war

3. 1975 Internal disturbance

By the 44th amendment in 1978, the word ‘internal disturbance’ has been replaced by ‘armed rebellion.’

National Emergency Approval

Before imposing national emergency in the country, it must be approved by both the houses of parliament. After the 44th amendment 1978, The cabinet gives a proposal of emergency in writing to the President. The time duration given for approval is one month. If both the houses of parliament approve the proposal of an emergency, then it is imposed for a period of six months. And this time period can be extended observing the situation in the country. It can be extended after every six months. There is no maximum period or limitation prescribed for the continuation of national emergency. It can be continued for any period of time.

Effects of National Emergency

The emergency in a country affects people on a large scale. The sufferance can not be described in words. It affects the system as a whole.

Some effects of National Emergency are:-

  • The federal structure of the country shifts to the unitary structure. All the powers get vested in the union government.
  • States come under the direct control of centre.
  • The President can also make alterations in financial distribution and allocation.
  • Fundamental rights are suspended in the period of emergency. Article 19 automatically revokes. But Article 20 and 21 are never revoked.
  • During the period of emergency, no elections take place.

What is State Emergency

State emergency is also known as constitutional emergency or President’s rule. When the emergency is imposed in a particular state, it is said as a state emergency under Article 356 of the Constitution of India. When the constitutional machinery of a state fails, and it is seen that the government is unable to run a state constitutionally or the state is not obeying the directions given by the union government for law and order, then the President has to impose President’s rule.

State Emergency Approval

When the President proclaims national emergency in a state, both the houses of parliament have to give approval for it within two months from the date of the issue of the proclamation. The period of emergency continues for six months after the proclamation, and it may be extended up to three years and not beyond that. But the same 44th amendment 1978 laid down two conditions that need to be satisfied if the state emergency had to be continued or operated beyond one year:-

  • The national emergency must be in operation in India. It may be imposed in the whole of the territory of India or any part of the state.
  • If the report of election commission suggests that elections in that state assembly are not possible.

Sarkaria Commission Report on State Emergency

The report contained some suggestions in regard to the imposition of President’s rule in a state:-

  • The report opined that Article 356, which deals with state emergency, must be used as a weapon of last resort.
  • The President imposes the state emergency on the report of the governor.
  • In the breakdown of government, it is the role of the governor to make a healthy government. Every possibility must be looked out for majority support of the government in assembly elections.
  • Before imposing an emergency, an alert or warning must be given to the government to settle the matter amicably.
  • It was said that Article 356 must be used in rare situations and circumstances. It cannot be a handy tool to maintain peace and order.

Case Law

S. R. Bommai vs. Union of India, 1994

“In this case, the Supreme Court said that President’s rule under Article 356 is subject to judicial review. It is open to the court for enquiring about the grounds for imposing President’s rule. By putting state emergency under the eye of #judicial review, the court has tried to prevent arbitrariness and monotonous rule.”

Effects of President’s Rule

When the President’s rule is in operation in a state, it temporarily changes the structure of a state. The effects that take place are:-

1. All the powers of the state get vested in the President. He becomes a deciding authority in that state.

2. The parliament takes all the decisions instead of the state assembly and state council.

3. It does not affect the fundamental rights of a person.

4. The President of India makes all the laws for that state until the continuation of the emergency.

What is Financial Emergency

Financial emergency is given under Article 360 of the Indian Constitution. When the President feels that there is a threat or danger to the country’s financial stability, he can impose a financial emergency.

Approval of Financial Emergency

After the proclamation of the President, within the period of two months, both the houses of parliament must approve the emergency. There is no maximum limit for the operation of financial emergency in the country. It can be continued until the President desires it to be in operation, looking at the financial situation of the country.

Effects of Financial Emergency

The consequences of financial emergency are:-

  • All the finance matters come under the direct control of the central government.
  • The President of India may issue directions in the reduction of salaries of government employees.
  • All the bills related to finance shall be reserved for future consideration, like money bills, financial bills, etc.

In India, a financial emergency has never been imposed so far. Though there have been many phases when the economic situation of the country was not so good. But a financial emergency has never been imposed. 

Interpretation of Statutes: Need and Importance

The term ‘Interpretation’ is derived from Latin term ‘interpretari’ which means to explain or to understand or translate. Interpretation is a process through which one ascertains the true and correct intention of the law making bodies as is laid in the form of statutes.

As the administration of justice is conducted by the judges in accordance with the provisions of law, therefore it requires that there are certain rules of interpretation to ensure that just and uniform decisions are delivered by them. The most important objective that is achieved by the interpretation of statutes is that it ensures that the court act according to the intent of the legislature.

Interpretation of Statues simply means to interpret the laws. Every case is different from other case maybe with a different facts, issues etc. The judges in the court have the power to interpret the laws as per the circumstances of the case. The interpretation of laws must be ambiguous.  

Need and Importance of Interpretation of law

If there is a building we call the building as court. Does it in real become court? No, as we need judges to call a building a court. As in earlier days, there was open courts where judges go to villages and sit under a tree and solve the disputes of the villagers. We can call it as a court. Court language is open to many meanings.

Let’s assume a boy met with an accident you were the person passing by from the same road saw this boy and you took him to the hospital. On the way towards the Hospital you drive your car over the limit then you got caught by traffic police for breaking the traffic rules. But, the reason why you were driving it over the limit is to save someone’s life. The judiciary have to look at the larger picture the judges in the court cannot interpret the law just according to the words which is written in the books of law in the interest of justice. The categories of conduct of law will have to be wide enough to interpret the laws. Enough discretion should be given to wide up the law.

Article 21 of the Constitution speaks about Protection of Life and Personal Liberty. This article is the most interpreted article in the Constitution. As time changes new needs of people in the society arises so it demands changes in the Constitution for the people of India.

In the case of Kharak Singh v. State of Uttar Pradesh, the Supreme Court quoted and held that:

By the term “life” as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armoured leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.

In the case of State of Maharashtra v. Chandrabhan, the Court struck down a provision of Bombay Civil Service Rules, 1959, which provided for payment of only a nominal subsistence allowance of Re. 1 per month to a suspended Government Servant upon his conviction during the pendency of his appeal as unconstitutional on the ground that it was violative of Article 21 of the Constitution.

In the case of Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court held that:

“Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society, which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life with human dignity contained in Art 21”.

The Separation of Powers Theory is the theory where the powers is divided among Legislative, Judiciary and Executive. The job of Judiciary is not make laws from the thrash the job of judiciary is to just interpret the law according to the disputes. Judiciary work is to resolve the disputes and to legislate the law. Judges are need to be given certain discretion so that they can interpret the law taking care of Constitutional articles and rights.

Statutory interpretation plays an essential role in the process of access to justice and cannot be overlooked. It is easy to see that when judges use statutory interpretation it may be considered a skill of language rather than a law. The uses of traditional rules of interpretation are applied basis on the ambiguity of the legislation and tend to somewhat cancel of each other.

Using rules of languages and, internal and external material helps interpret the law and also how the system such work. Statutory interpretation is important to the access to justice because it helps the judiciary system implement the law in an efficiency and effective way and helps the Parliament to make the law

Mediation

  1. What is Mediation?

Ans. Mediation is used as a form of dispute resolution, known as Alternative Dispute Resolution. In mediation legal disputes are resolved between two or more parties where a neutral third person negotiates and settles the case outside the court of law. Mediation is thus, referred to as a party-centred process that emphasizes on the needs, rights, and interests of the parties involved.

2. Who is Mediator?

Ans. A mediator is a neutral third person who encourages those in the dispute to talk to each other about the issues. The mediator is not an advice-giver or decision-maker. The parties examine the real problems, large or small. They then create and agree upon an outcome that meets their needs and addresses their concerns.

Mediators use various techniques to open, or improve, dialogue and empathy between disputants, aiming to help the parties reach an agreement. It depends on the mediator’s skill and training.

3. Which types of disputes is suitable for mediation?

Ans. Mediation is suitable for resolving a wide range of disputes including:Business and commercial

Partnership

Family matters

Labour disputes

Personal Injure

Industrial and Construction

4. What is the difference between Arbitration and Mediation?

Ans. In an arbitration, the arbitrator looks into the legal rights and wrongs of a dispute and makes a decision. Once the arbitrator has arrived at a decision, it is binding on parties whether they agree with it or not. It is very much like the way a court case is decided by a judge, except that the process does not take place in a court room, and it is not open to the public. As in a court case, there is usually a winning and a losing party in an arbitration.

In a mediation, the mediator, essentially, helps parties to settle their disputes by a process of discussion and narrowing differences. The mediator helps the parties to arrive at an agreed solution. He does not decide the dispute. A successful mediation results in an agreement signed by the parties, whereas a contested arbitration results in a decision by the arbitrator himself without the agreement of the parties. In a mediation, there is no such thing as a winning or losing party, because there is no binding decision without both parties agreeing to one.

5. Why should we choose Mediation over Arbitration?

ans. Nature – Arbitration is formal and it follows almost same procedures as in litigation but out of court. Whereas, Mediation is informal.

Elements- Arbitration needs facts and evidence. Mediation does not require any such evidence.

Expenses- Arbitration is Expensive. Mediation is less expensive.

Modus operandi- Arbitration is exercised very similar like litigation, besides, its proceeding has to be performed officially by following proper steps of arbitration including filing application, facts, evidence, witness, or any such relevant documents. Whereas, Mediation is entirely friendly and there is as such no defined process, it can be done in any friendly manner as per the convenience of the parties.

Time- Arbitration is time taking. Mediation is less time taking.

Regulating power- Arbitrators are the authority, very similar to judge and he she give decision based on the given facts, evidence and circumstances. Mediators assist parties to make their own decision, which should be beneficial to both the parties.

Result- In arbitration, result is win or loss one party wins and other loss. In mediation it is win-win situation so, result is mutually beneficial.

6. Ways in which mediation is classified?

ans. Statutory/Mandatory: According to law, there are certain disputes that require to be resolved through the process of mediation. For example, settling labour law and family law disputes require mediation. Section 5(f)(iii) of the Civil Procedure- Mediation Rules, 2003acknowledges for mandatory mediation.

Court Ordered: When cases are filed in India, both parties are given the option to select from a list of ADRs and pursue them until and unless it is very essential to move to court. Most of the jurisdictions in India recommend some sort of alternative dispute resolution (ADR) before they come to the court of law for trial. This particular type can further be classified as:

Court-Annexed: Here, the services of mediation are provided by the court itself. It is the court that appoints the mediator, sets the lapsing date etc.

Court-Referred: Under this system of mediation, the courts job is very direct. It simply refers to the mediator available at that time.

Private: In this type of mediation, the mediators function independently, i.e. not appointed by the court. This implies that such services are given away on private, by means of money. Such services are provided by the Court qualified mediators or some general public etc.

Contractual: It is often found in civil contracts that in case there is any dispute among either party, then it shall be resolved through mediation instead of fighting legal suits. This is known as the mediation clause.

7. What is the procedure of Mediation?

Ans. Mediation is a voluntary process in which the mediator facilities the disputing parties. Mediation can be accommodated. Mediation gives the parties the opportunity to discuss the issues. The mediator helps the parties to agree on a mutually acceptable resolution. Mediation must is strictly confidential

8. What is the current scenario of Mediation in India?

Ans. The 129th Law Commission of India report suggests courts to refer disputes for mediation mandatorily.  The Supreme Court observed that all cases, which are related to commerce, trade, contracts, consumer disputes and even tortious accountability, could normally be mediated. The amendment to the Commercial Courts Act 2015 (Section 12A) in 2018, made it compulsory for parties to go through the restoration of pre-institution mediation under the act before instituting a suit. High Courts have their own individual set of regulations governing Mediation and Conciliation by the websites of several High Courts. There are amendments made in other acts to make mediation part in the procedure like Consumer protection Act, 2019, Real Estate (Regulation and Development) Act, 2016. Etc.

9. What is the scenario of Mediation in foreign countries?

Ans. Europe

The EU has adopted a Code of Conduct for Mediators and this is a very effective way forward.  A draft Directive on mediation was published in 2004, national attitudes, formulated by usage of the Civil Codes or Common Law, will determine the attitude of the respective judiciaries towards mediation usage in each of the member states of the EU.

Africa

In Lagos, Nigeria, CEDR has worked with the courts and a team of local people who wish to improve on current dispute resolution methods by speeding up and reducing the cost of the delivery of justice. In 2004 and 2005, a team of trainers has visited Lagos and Abuja to train mediators, train trainers locally and help to establish the Lagos-based mediation service. So effective has been the work done there that the Chief Justice of Nigeria has appointed a designated mediation High Court Judge (himself, now an accredited mediator) as well as agreeing to open up in each of the 33 national Court Centres the same Multi Door Courthouse system which is now operating in Lagos.

Asia

Singapore has become a serious player on the mediation scene, and other countries are developing a mediation capability. China is now a force to be reckoned with, not just for its economic growth and success, but because that very growth and success has generated the need to look outwards and to work in the style of their trading partners when trading relationships mean more than just a one-off deal.

10. Steps needed to promote mediation in India?

Ans. The public should be made aware of the benefits of mediation over traditional litigation. Mediation should be made easily accessible to the public at large. There is a need for Mediation Centres to have a good quality of infrastructure and a standard figure or pattern to make the parties feel comfortable. Inducements and remembrance to lawyers to enlighten the parties about the internal proceedings in the mediation process to make such notified choices. Exorbitant ethical standards (ethical code and code of conduct) to be obeyed.

Justice delayed is Justice denied

Justice delayed is justice denied” is a legal maxim. It means that if legal redress or equitable relief to an injured party is available, but is not forthcoming in a timely fashion, it is effectively the same as having no remedy at all.Today, it can take nearly 20 years if a case goes all the way from the subordinate court to the high court and then the Supreme Court. Twenty years means multiple generations of litigants, enormous cost and frustration — a case taking this long to be resolved is symptomatic of an inefficient and ineffective judicial system; any ‘justice’ delivered after a span of 20 years would be bereft of its true meaning. There are many problems that this process creates. First, judges, particularly those in the superior courts are dealing with cases from the previous decade and not today’s pressing issues. Second, the judiciary and the legal system at large, is inherently favouring the illegal actions of one party at the cost of violating the rights of the other. Further, a prolonged legal battle will have the effect of encouraging such illegal actions not only by the parties involved but across society, which in the long term lead to an erosion in the faith of people to get timely justice.

Justice is one of civilisation’s foundational goals. It is therefore imperative for the judiciary to perform its duty properly for any society to continue its pursuit of peace, harmony and progress. Unfortunately, the Indian judiciary, despite its many successes, suffers from severe structural problems that prevent it from functioning properly. The judiciary’s travails, specifically those relating to delays and backlog are well documented and don’t need repetition. However, it is only in the last few years that these structural problems have been better understood empirically thanks to the availability of better data.

It is now possible to assess, in a fairly detailed manner, the judiciary on parameters such as budgets, human resources, workload, diversity, infrastructure, and trends over the years. We can also accurately diagnose the pendency and backlog problem not only at district and taluka level but also at court complex levels.

We know, for example, that while pendency is a nationwide problem, it varies vastly from state to state, with the average pendency being anywhere in the range of two years to nine years in the district judiciary, as the India Justice Report 2019 reveals. We need to work on the problems that lead to delay on a daily basis, by increasing certainty of outcome in each hearing and avoiding burdening a judge in a manner that encourages adjournments. On an average, a district judge has about 50-60 cases listed before him each day. It is impossible to meaningfully hear such a high number of matters, and therefore at least 40 of these cases will be adjourned by the judge without any significant movement. This happens every day in each court across the country throughout the year. Naturally, there will be delay and backlogs at the end of the year. It is these daily problems that magnify over time and transform into structural problems crippling the functioning of the institution.

From a larger perspective, judicial delays also lead to uncertainty regarding laws and their application — the ongoing case in the Supreme Court regarding the application of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 and the determination of compensation thereunder has practically halted land acquisition litigation in the country. Cases related to land acquisition in the subordinate courts remain pending for six years on average and are a category of cases that take the most time to be resolved in court.

How then must the judiciary proceed to ameliorate the effects of delay? Foremost would be to efficiently manage judicial time. Listing an optimal number of cases to be heard on a daily basis is vital to ensuring that judicial time is not spent on unnecessary adjournments and that lawyers are prepared for their cases knowing that they will be heard with certainty. Courts must work towards better case management frameworks to ensure that cases are scientifically listed taking into consideration the stage of the cases and the amount of time they would require to be heard. The Delhi high court recently took the lead on this through a pilot project in the district judiciary; the results of the project show that it is possible to decide cases in a short time frame with better case and judicial time management.

A critical reform required is the need to appoint a full-time judicial administration cadre. Internationally, judicial administration is seen as being ancillary to the work of judges and is carried out by dedicated and specialised personnel to help judges efficiently perform their judicial duties. The establishment of a dedicated and trained cadre to provide support to the judiciary through case management, assistance with budgeting, handling administrative tasks, and ensuring maintenance of court infrastructure will go a long way in enabling the judiciary to focus on the administration of justice. Currently, judicial administration is essentially managed by judges themselves. This is not only unsustainable, but also unfair to judges whose primary skill and responsibility is to decide cases.

The most critical mantra is to embrace technology with vigour. Many of our court rules and processes were conceived of in the 19th century and need a thorough overhaul as they have become a hindrance to the delivery of justice. We should change these processes to meet today’s societal realities, particularly to harness technology in the better delivery of justice.

Quashing of F.I.R

The expression, first information report is not defined in the code of criminal procedure 1973, but these words are always understood to mean, information recorded under Section 154(1) of the Code of Criminal Procedure, 1973. It is the information given to the essential officer-in-charge of the police station in the form of compliant or accusation regarding the commission or suspected commission of a cognizable offence. It is given with the object setting the criminal law in motion and police starting the investigation. This report (F.I.R) forms the foundation of the case.

Section 154(1) of the Code of Criminal Procedure, 1973 deals with the information in cognizable offence. According to this section every information relating to the commission of a cognizable offence if  given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over the informant and every such information, either given in writing or reduced to writing as aforesaid shall be signed by the person given it and the substantive there of shall be entered in a book to be kept by such officer in such form as the state Government may prescribe in this behalf.

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of the code) is wide with no statutory limitation . It preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice and therefore the High Court must have due regard to the nature and gravity of the offences.

 When a FIR is registered the allegation made in the FIR is correct and proved by the investigation done by the Police officials but the crime is not defined as per the law or else the crime does not fit any ingredients of law definition. Now, the FIR can quashed by the High Court. Mostly it depends from cases to cases and facts to facts High court can interpret the law depend upon the facts of the cases.

Cases

  1. Parbatbhai Aahir & Ors. Vs. State of Gujarat & Anr. (Criminal Appeal No. 1723 of 2017)

A full bench comprising of Hon’ble Mr. Chief Justice Dipak Misra, Hon’ble Mr. Justice AM Khanwilkar and Hon’ble Mr. Justice DY Chandrachud has laid down broad principles from various precedents in relation to Section 482 of the Code of Criminal Procedure (CrPC) for quashing of First Information Reports (FIRs) in the judgment passed in an appeal against a decision of the Gujarat High Court.

The Gujarat High Court vide its judgment dated November 25, 2016, had dismissed an application under Section 482 of CrPC filed by the Appellants seeking quashing of FIR registered against them on June 18, 2016 with the City ‘C’ Division Police Station, District Jamnagar, Gujarat for offences punishable under Sections 384, 467, 468, 471, 120-B and 506(2) of the Indian Penal Code.

Before, the High Court, the plea for quashing the FIR was advanced on the ground that the Appellants had amicably settled the dispute with the Complainant, who had also filed an Affidavit to that effect. On behalf of the prosecution, application for quashing was opposed on two grounds:

The Appellants were absconding and warrants had been issued against them under Section 70 of the Code of Criminal Procedure, 1973.

The Appellants had criminal antecedants.

The High Court observed that it had been given “a fair idea” about the modus operandi adopted by the Appellants for grabbing the land, in the course of which they had opened bogus bank accounts. The High Court held that the case involves extortion, forgery and conspiracy and all the Appellants have acted as a team. Hence, in the view of the High Court, it was not in the interest of society at large to accept the settlement and quash the FIR. The High Court held that the charges are of a serious nature and the activities of the appellants render them a potential threat to society. On this ground, the prayer to quash the First Information Report was rejected by the High Court.

The Hon’ble Supreme Court after discussing various precedents on the subject summarized the following broad principles in relation to Section 482 for quashing FIRs.

Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised;
to secure the ends of justice or to prevent an abuse of the process of any court;

The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;

In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

The Apex Court dismissed the appeal holding that the High Court was justified in declining to entertain the Application for quashing FIR in the exercise of its inherent jurisdiction.

2. Sunder Kumar v. State, WP (Crl) No. 787 of 2020, decided on 06-05-2020

Delhi High Court: C. Hari Shankar, J., addressed a petition with regard to quashing of FIR wherein petitioner was in custody for loitering around without wearing mask and assaulting a police constable, and held that,

charges against the petitioners are unquestionably serious.

Petitioner sought quashing of FIR for offences committed under Sections 188/269/186/353/332/506 read with Section 34 of penal Code, 1860.

Rahul (Petitioner 2) was seen loitering without wearing a mask in violation of Compliance Advisory issued by Centre in the wake of COVID-19 pandemic.

On the complainant intercepting Rahul and querying him in that regard, Rahul retorted that the complainant had no right to stop him from walking in the area without a mask.

Further when the complainant with the help of a constable tried to control Rahul, he caught hold of the collar of the shirt being worn by the complainant and tore the shirt. Rahul also assaulted the constable by kicking him.

Rahul’s brother Petitioner 1 also joined him and started assaulting the complainant. Later both of them were take into custody and FIR was lodged.

Quashing of criminal proceedings by eviscerating them from their very inception, is an extreme step, to be taken with due circumspection.

Progress of the criminal law, once legitimately set in motion, should not be halted by judicial diktat, save in exceptional circumstances and with due cause.

Bench stated that, charges against the petitioners are unquestionably serious.

Breach of the lockdown restrictions, imposed by the Government, which, if permitted unchecked, may result in loss of lives of millions, and cannot be tolerated.

Court also added that the acts of petitioners are inherently inimical to public interest and may have catastrophic consequences and in these cases Courts cannot permit themselves to be carried away by the physical nature of the act as committed, unmindful of the results that would ensue, were such acts to be tolerated.

Conclusion

There are many cases related to Dowry where the women misuses her laws and register false FIR making allegations regarding her in-laws for dowry.  So her in-laws filed a case for quashing of FIR High court can quashed the FIR hearing both the parties. There are also cases where a FIR is registered for committing heinous crimes and then later on both the parties mutually decide to end up the dispute in this the court in his judgement explained that heinous crimes can’t be settled by the parties itself as the court said this kind of offences effect the society as a whole. Hence, the FIR cannot be quashed.

New Education Policy 2020

Constitutional Provisions:
Part IV of Indian Constitution, Article 45 and Article 39 (f) of Directive Principles of State Policy (DPSP), has a provision for state-funded as well as equitable and accessible education.

The 42nd Amendment to the Constitution in 1976 moved education from the State to the Concurrent List.

The education policies by the Central government provides a broad direction and state governments are expected to follow it. But it is not mandatory, for instance Tamil Nadu does not follow the three-language formula prescribed by the first education policy in 1968.

The 86th Amendment in 2002 made education an enforceable right under Article 21-A.

Related Laws:
Right To Education (RTE) Act, 2009 aims to provide primary education to all children aged 6 to 14 years and enforces education as a Fundamental Right.

It also mandates 25% reservation for disadvantaged sections of the society where disadvantaged groups

Government Initiatives:
Sarva Shiksha Abhiyan, Mid Day Meal,  Navodaya Vidyalayas (NVS schools), Kendriya Vidyalayas (KV schools) and use of IT in education are a result of the NEP of 1986.

Recently, the Union Cabinet has approved the new National Education Policy (NEP), 2020 with an aim to introduce several changes in the Indian education system – from the school to college level.

The NEP 2020 aims at making “India a global knowledge superpower”.

The Cabinet has also approved the renaming of the Ministry of Human Resource Development to the Ministry of Education.

The NEP cleared by the Cabinet is only the third major revamp of the framework of education in India since independence.
The two earlier education policies were brought in 1968 and 1986.

School Education:

  • Universalization of education from preschool to secondary level with 100% Gross Enrolment Ratio (GER) in school education by 2030.
  • To bring 2 crore out of school children back into the mainstream through an open schooling system.
  • The current 10+2 system to be replaced by a new 5+3+3+4 curricular structure corresponding to ages 3-8, 8-11, 11-14, and 14-18 years respectively.
  • It will bring the uncovered age group of 3-6 years under school curriculum, which has been recognized globally as the crucial stage for development of mental faculties of a child.
  • It will also have 12 years of schooling with three years of Anganwadi/ pre schooling.
  • Class 10 and 12 board examinations to be made easier, to test core competencies rather than memorised facts, with all students allowed to take the exam twice.
  • School governance is set to change, with a new accreditation framework and an independent authority to regulate both public and private schools.
  • Emphasis on Foundational Literacy and Numeracy, no rigid separation between academic streams, extracurricular, vocational streams in schools.
  • Vocational Education to start from Class 6 with Internships.
  • Teaching up to at least Grade 5 to be in mother tongue/regional language. No language will be imposed on any student.
  • Assessment reforms with 360 degree Holistic Progress Card, tracking Student Progress for achieving Learning Outcomes
  • A new and comprehensive National Curriculum Framework for Teacher Education (NCFTE) 2021, will be formulated by the National Council for Teacher Education (NCTE) in consultation with National Council of Educational Research and Training (NCERT)
    By 2030, the minimum degree qualification for teaching will be a 4-year integrated B.Ed. degree.

Higher Education:

  • Gross Enrollment Ratio in higher education to be raised to 50% by 2035. Also, 3.5 crore seats to be added in higher education.
  • The current Gross Enrollment Ratio (GER) in higher education is 26.3%.
  • Holistic Undergraduate education with a flexible curriculum can be of 3 or 4 years with multiple exit options and appropriate certification within this period.
  • M.Phil courses will be discontinued and all the courses at undergraduate, postgraduate and PhD level will now be interdisciplinary.
  • Academic Bank of Credits to be established to facilitate Transfer of Credits.
  • Multidisciplinary Education and Research Universities (MERUs), at par with IITs, IIMs, to be set up as models of best multidisciplinary education of global standards in the country.
  • The National Research Foundation will be created as an apex body for fostering a strong research culture and building research capacity across higher education.
  • Higher Education Commission of India (HECI) will be set up as a single umbrella body for the entire higher education, excluding medical and legal education. Public and private higher education institutions will be governed by the same set of norms for regulation, accreditation and academic standards. Also, HECI will be having four independent verticals namely,
    National Higher Education Regulatory Council (NHERC) for regulation, General Education Council (GEC) for standard setting, Higher Education Grants Council (HEGC) for funding, National Accreditation Council (NAC) for accreditation.
  • Affiliation of colleges is to be phased out in 15 years and a stage-wise mechanism to be established for granting graded autonomy to colleges.
  • Over a period of time, every college is expected to develop into either an autonomous degree-granting College, or a constituent college of a university.

Other Changes:

  • An autonomous body, the National Educational Technology Forum (NETF), will be created to provide a platform for the free exchange of ideas on the use of technology to enhance learning, assessment, planning, administration.
  • National Assessment Centre- ‘PARAKH’ has been created to assess the students.
  • It also paves the way for foreign universities to set up campuses in India.
  • It emphasizes setting up of Gender Inclusion Fund, Special Education Zones for disadvantaged regions and groups.
  • National Institute for Pali, Persian and Prakrit, Indian Institute of Translation and Interpretation to be set up.
  • It also aims to increase the public investment in the Education sector to reach 6% of GDP at the earliest. Currently, India spends around 4.6 % of its total GDP on education.

Due Diligence

It is the process by which confidential legal, financial and other material information is exchanged, received and appraised by a parties to a business transaction, which is done prior to the transaction

Due diligence is an analysis and risk assessment of an impending business transactions. It is careful and methodological investigation of a business or persons or the performance of an art with certain standard of care to ensure that the information is accurate and to uncover the information that may affect the outcome of the transaction

It is basically a background check to make sure that the parties to the transactions have the required information they used to proceed with the transactions. It is used to investigate and evaluate a business opportunities. It is a tool that often provides insights into the hidden facts.

Objective of Due Diligence

The objective of due diligence is to verify the strategic identification or attractiveness of the target company, valuation risk associated etc. the major objectives of the due diligence are :

  1. Collect material information from the target company
  2. Conduct swot analysis
  3. Improve bargaining position depending on the result
  4. To take a informed decisions about the investments
  5. Identification of areas where representation and warranties are required
  6. To provide a desired comfort level in the transactions
  7. To ensure complete and accurate disclosure
  8. To bridge the gap between the existing and expected
  9. To take smooth/accurate action/decision
  10. To enhance the confidence of the stakeholder

Process of Due Diligence

A legal due diligence investigation takes place in three stages.

  • Preparation
  • Investigation
  • Results

The most time-consuming part of the process is the investigation or the gathering of facts.

Preparation

This stage of the legal due diligence is to set goals and priorities. Often there is one central goal or multiple smaller important goals that stand out from the rest. Legal due diligence investigation are often limited by time and budget pressures. It’s important to prioritize what information is most important.

Investigation

During the investigation a lawyer or team of lawyers collect facts and documents. The findings will allow them to formulate a legal opinion as to whether the sale or purchase is worthwhile. There are many parts to the investigation.

Establish the Big Picture. This comes back to the goal of the investigation. It’s important to formulate the investigation around the central question or goal. This is also a good time to help the investigating lawyer understand the broad overview of your company.

Provide Documents and Interviews. The list of documents and interviews necessary for a legal due diligence investigation will likely surprise you with its length. The list of documents requested will likely be more documents than are actually necessary. The lawyer’s job is to create a full picture, which means being thorough in gathering information. Consider making one of your c-level officers available to answer questions. Interviews are an efficient way to gather information.

Results

The results of a legal due diligence investigation are reviled at the end of the investigation. In the results, the lawyer will present the data in as concise way as possible. The lawyer will also present a results summary which will point out the most important discoveries.

The results may also provide analysis or opinion. The lawyer may offer an opinion as to the validity of the sale or purchase.

The results may be provided in written format or verbal conversation. This depends upon the size of the investigation and the preference of the lawyer and the client.

Presentation of Legal Due Diligence Investigation Findings

The findings of a legal due diligence investigation are really only important to a buyer and the buyer’s counsel.

The buyer will typically want the due diligence finding to be presented in a compact and user-friendly way. The presentation can take many forms:

Verbal conversation: This is a great method for small deals or a buyer who is concerned about cost.

Memorandum: This memorandum can greatly range in length and depth. For larger deals, the written document will be longer.

Whichever form it takes, the presentation of the legal due diligence investigation findings should describe all of the reviewed documents, analysis of key issues discovered, and make recommendations as to a solution to presented issues.

If you are having a due diligence investigation performed, be clear with your expectations. Be specific on how you would like information and issues presented to you at the end of the legal due diligence investigation.

What is to be done when the Cheque is bounced?

Cheque is an instrument to transfer the money from one person to another. Cheque is safe and secure. To promote cheques and people should trust the simple mechanism of cheque and many people should use it effectively without any doubt in their mind so the Government in the year 1988 have introduced a chapter in Negotiable instrument Act, 1881 which deals about dishonour of cheques. As per Negotiable Instrument Act section 138 to section 143 deals with the provision of dishonour of cheques

Problems in Dishonour of Cheques

1. Penalty

If a cheque is bounced, then a penalty is levied on both drawer and payee by their respective banks. The person will additionally have to pay late payment charges if the dishounoured cheque is against repayment of a loan.

2. Damage To Credit History

Your credit history is negatively impacted if a cheque is dishonoured since your payment activities are reported to the credit bureaus by the financial institutions. The lenders will trust you if you have a good credit score. In order to have a good credit score, it’s a good practice to avoid your cheques from being bounced. Your good payment activities will help you build good CIBIL score and benefit you at the time of lending money from financial institutions.

Important terms which is used by Bank in relation to Cheques :

  1. Drawer -the maker of a bill of exchange or cheque is called the “drawer”
  2. Drawee- the person thereby directed to pay is called the “drawee”.
  3. Cheque Return Memo – the bank offer memo to the payee indicating the reason why the cheque id dishonoured.   

Reason why Cheque is bounced :

  1. Insufficient Funds
  2. Closed account
  3. Stop payment

Let’s take a hypothetical situation to understand it completely in a very simple way :

Mr. Atul draws a cheque in the name of Ms. Ria of Rs. 5,000/-. Here Ms. Ria is a drawee and Mr. Atul is drawer. Ms. Ria deposited the cheque in the bank. The cheque got bounced i.e the cheque is dishonoured.

After dispositing the cheque Ms. Ria came to know about the dishonouring of cheque in 2-3 days. Then the bank will issue Cheque return memo.

As the cheque return memo is received by Ms. Ria within 1 month she needs to send a legal notice to Mr. Atul. But also if Ms. Ria and Mr. Atul are friends Ms. Ria knows the actual problem for dishonour of cheque then she has two options

  • She can call Mr. Atul and ask for the reason and ask him when she can again deposit the cheque. If their will be a genuine problem or based on their understanding Ms. Ria deposit the cheque again and then the cheque is honoured.
  • (ii) Ms. Ria can send a legal notice to Mr. Atul. She should mention the cheque is dishonoured, she should mention Mr. Atul should process the amount within 15 days from when the notice is received. Then to after 15 days no amount is being processed and no reply of legal notice is received by Ms. Ria then from 16th day her cause of action has started now within 1 month Ms. Ria will file a case against Mr. Atul under Negotiable Instrument Act 1881

Ms. Ria can file the case under sec 138 of Negotiable Instrument Act for dishonour of cheque. Ms. Ria can file the case with Judicial Magistrate 1st Class (JMFC) or Metropolitan Magistrate.

Documents which is to be furnished at the time of case :

  • Copy of Original Cheque
  • Cheque Return Memo
  • Copy of Legal Notice
  • Postal Receipt of the Legal Notice.

Punishments :

In accordance with section 138 of this act, dishonour of cheque is a criminal offence and is punishable with monetary penalty or imprisonment up to 2 years or both.

Latest amendments in the Act:

The Act has been amended time to time to ensure and enhance trust in negotiable instruments. With an aim to further streamline the Act, the Central Government incorporated Sections 143-A and 148 vide Negotiable Instruments (Amendment) Act, 2018 (“Amended Act”). These new sets of provisions have been effective since 1st September 2018.

  • Section 143A of the Amended Act

Section 143-A of the Amended Act empowers any court while trying an offence for dishonour of a cheque to direct the drawer, who is the issuer of the cheque, to pay interim compensation to the complainant. The amount of compensation payable cannot exceed 20% of the amount as stated in the cheque. This amount has to be paid within a stipulated time period of 60 days from the date of the order passed by the court, or further within the extended period of 30 days, as may be directed by the court on showing sufficient cause for the delay caused.

  • Section 148 of the Amended Act

According to the Amended Act, Section 148 states that in the event of the conviction of the drawer of the cheque, if the drawer proceeds to file an appeal, the appellant court has the power to order the drawer of a cheque to deposit an amount. This deposited amount in such case has to be a minimum of 20% of the fine or compensation awarded by the Magistrate Court in the appeal preferred against his/her conviction. However, if the appellant is acquitted, then the Court shall direct the complainant to repay to the appellant the amount so released, with interest.

Mutual Divorce as per Hindu Marriage Act, 1955

Divorce is a very serious issue. Nowadays, the seriousness is vanished the couple find it very easy to end up a relationship without thinking twice about the decision. Some Couple knows it all about the consequences they could suffer later on but apart from it they decide to end up the marriage rather than sitting together and solving the differences between themselves.

What is Divorce by Mutual Consent?

Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to get their marriage dissolved by a decree of divorce on more than one ground specifically enumerated in Section 13.

Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provides for divorce by mutual consent.

The conditions required under section 13B of the Hindu Marriage Act are as follows:

(i) Husband and wife have been living separately for a period of one year or more.

(ii) That they are unable to live together.

(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed. Hence marriage should be dissolved. Under these circumstances, a Divorce by Mutual consent can be filed.

As per the Indian Legal system, a divorce procedure fundamentally begins with the filing of a divorce petition.

Where to file a divorce petition

1. The court can be one where couple seeking divorce last lived.

2. The court can be one where the marriage was solemnized.

3. The court can be one where the wife is residing as of present.

The entire procedure of divorce in India starts begins with the divorce petition which is filled by the parties associated with the divorce process and notice of the same is served to the other one.

According to the Hindu Marriage Act, 1955; a petition for a ‘mutual divorce’ can be filed if you and your spouse are facing difficulties and have decided to part your ways legally.

You can even file for divorce if the other party is not willing to get a divorce- this is called, ‘Contested Divorce’.

Points to be discussed before getting a divorce by mutual consent

  1. Maintenance
  2. Child custody
  3. Settlement of Property and assets

Requirement of Documents for filing Mutual Divorce Petition:

  • Marriage Certificate
  • Address Proof – Husband and Wife.
  • Four Photographs of Marriage.
  • Income tax Statement of last 3 years.
  • Details of profession and Income (Salary slips, appointment letter)
  • Details of Property and Asset owned
  • Information about family (husband and wife)
  • Evidence of Staying separately for an year
  • Evidence relating to the failed attempts of reconciliation

Procedure for getting a decree of divorce by mutual consent

Step 1: Jointly filing a petition

A divorce petition in the form of an affidavit is to be signed by both parties and filed before a family court in their region.

Jurisdiction of the court should not be a major issue in filing for divorce as the petition can be filed within the local limits of the ordinary civil jurisdiction of where the marriage was solemnized or where either of the parties currently resides.

As mentioned earlier, the parties to a marriage must be living separately for at least one year before filing the petition.

Step 2: First Motion

After filing the petition the parties shall appear before the court and give their statements. If the court is satisfied and the statements are recorded then the first motion is said to have been passed, following which a waiting period of 6 months will be given to the parties before they are able to file the second motion.

This waiting period as statutorily prescribed under Section 13B(2) of the Act is for the parties to introspect and think about their decision. It is a time given for them to reconcile and give their marriage another chance, just in case they decide to change their mind.

Anyhow, sometimes the court may be convinced that the marriage has reached the point of no return and the waiting period will only expand their misery. In that case, this period can be waived off by the court. This period if not waived off can extend up to 18 months. If the parties still want to get divorced they may now file for second motion. The second motion can be filed only after the waiting period of 6 months and before 18 months has elapsed.

Step 3: Second Motion

This is when final hearings take place and statements are recorded again. If the issues of alimony and child custody (if any) are mutually agreed upon the decree of divorce is passed after this step. The marriage has finally ended by now and divorce by mutual consent has been granted.

Conclusion

In my views marriage is a unique friendship where you find a best friend and a soulmate. In friendship sometimes we have to adjust according to our friend as per their likes and dislikes. Similarly, in marriage we need to make some compromise to make it work throughout our life. Taking such important decisions so quickly will offer us nothing. So we should try to make it work rather than leaving someone for just some bad incident in the past months or years.

Consumer Protection Act 2019

Consumer

Every person need essentials for their survival in this world. Essentials of a person is food, clothes, house, electrical goods etc. Every person is a consumer in this world. As every person depends upon other person for products. Why do we need consumer protection act 2019? The consumer is connected to the economy. Higher the consumer consume higher the demand of the product will increase higher the growth in the economy as the economy grows the GDP will also rise. If the consumer suffer problems in the product he purchased then he will be a restrictive buyer.  

Consumer purchase products or avail/ heir service from manufacturers, traders, seller, service provider. It’s a right of every consumer to known the correct information, quality, quantity, advertisement, and service etc of the products and services. But if the consumer found the defects in goods brought by him or deficiency in the services provided by manufactures, traders, sellers, service provider. The consumer intimate the same to the manufactures, traders, sellers, service provider but they refused to entertain the consumer problem. The consumer has the right to file a case as per the consumer protection act 2019.

History of the Act

Prior to Consumer Protection Act, 2019 there was Consumer Protection Act 1986 which have their own limitations as per the modern India is concerned. The Parliament passed the Consumer Protection Bill, 2019 on 06.08.2019 to replace the Consumer Protection Act, 1986 (“1986 Act”). The President of India gave its assent to the Consumer Protection Act, 2019 (“2019 Act”) on 09.08.2019 and the same will come into force on the date 20th July 2019 by the Central Government. The 2019 Act has been enacted for the purpose of providing timely and effective administration and settlement of consumer disputes and related matters.

The Government instead of bringing an amendment in the 1986 Act, enacted a new Act altogether so as to provide enhanced protection to the consumers taking into consideration the booming e-commerce industry and the modern methods of providing goods and services such as online sales, tele-shopping, direct selling and multi-level marketing in addition to the traditional methods.

Features of Consumer Protection Act 2019

  • Consumer

In this new act the definition of the consumer is broadly defined the word ‘consumer’. The definition now includes any person who buys any goods, whether through offline or online transactions, electronic means, teleshopping, direct selling or multi-level marketing. The earlier Act did not specifically include e-commerce transactions, and this lacuna has been addressed by the New Act.

  • Central Consumer Protection Authority 

In the old act there was Consumer Protection Council in three levels District, State and Central they advise on promoting the protection of consumer rights at all the three levels. There was also commission on all the three levels. In the new act they have established Central Consumer Protection Authority to regulate the matters relating to violations of consumer right, unfair trade practices, misleading advertisement and also to promote, protect enforce the right of consumers

The composition of Central Consumer Protection Authority is established by Central Government as he appoints Chief Commissioner and Commissioners for the regulation of the authority. The headquarters are located in Delhi but the branches can be establish at any part of India. The qualifications, salary etc of the Chief Commissioner and Commissioners are decided by Central Government.

Central Consumer Protection Authority shall protect, promote, enforce consumer’s rights, prevent violations of consumer rights, prevent unfair trade practices, and ensure no false or misleading advertisement and no publications of such advertisements.

Central Consumer Protection Authority may inquire or investigate on complaint or suo motu, File complaint before district/state/national Commission. Intervene in proceedings before district/state/ national commission for allegation of violations of consumer rights or unfair trade practices. Review the matter relating to consumer rights. Recommend adoption of International Covenants for effective implementation of consumer right. Promote research for consumer protection so that they can amend the law, They can also issue notices to alert consumers They can advise ministers departments of central/ state Government on consumer welfare measures.  

  • Pecuniary Jurisdiction

In the new act the jurisdiction of all the three commission are widen up as compared to the old act. As per this act the consumer can claim the amount in the commission as follows :

District commission – From 20 lakhs to 1 cr.

State Commission – From 1cr to 10cr.

National Commission – Above 20 cr.

If the judgement is against any of the two party in District commission then they can appeal to state commission against the judgement passed by the district commission and then to if we are not satisfied by the judgement of state commission then we can appeal to National commission and then we can appeal to Supreme Court if the national commission judgement is not satisfactory.

  • Mediation Cells

Just like Alternative Dispute Resolution if both the party agree they can go for mediation. Mediation is a process where both the party sit with each other and solve the problem and come to a common conclusion which is agreed by both the parties. There will be a mediator to guide them.  The time limit for solving the dispute by mediation is 3 month it can be extended by the permission of court. There will be no appeal when it is concluded by mediation process.

  • Flexibility in filing

This act provide the flexibility to the consumer for filing the case as it was not provided in the old act. Let’s assume Mr. A purchased a product from Mumbai as he visited in Mumbai for the 1st time then he arrived to his hometown which is Delhi when is opened the product the product was not up to the mark as told by the shopkeeper. When Mr. A called the shopkeeper in Mumbai he doesn’t answered it well so now Mr. A want to file a complaint against the shopkeeper who is in Mumbai. As per the old act Mr. A should file the complaint in Mumbai itself as the cause of action raised is in Mumbai. But as per new act Mr. A can file the complaint in Delhi too.

  • Product Liability & Penal Consequences

The New Act has introduced the concept of product liability and brings within its scope, the product manufacturer, product service provider and product seller, for any claim for compensation. The term ‘product seller’ is defined to include a person who is involved in placing the product for a commercial purpose and as such would include e-commerce platforms as well. The defense that e-commerce platforms merely act as ‘platforms’ or ‘aggregators’ will not be accepted. There are increased liability risks for manufacturers as compared to product service providers and product sellers, considering that under the New Act, manufacturers will be liable in product liability action even where he proves that he was not negligent or fraudulent in making the express warranty of a product. Certain exceptions have been provided under the New Act from liability claims, such as, that the product seller will not be liable where the product has been misused, altered or modified.

  • Penalties for Misleading Advertisement

Endorsement are huge part of the advertising industry, commands about 24% total advertisement expenditure

  • Manufactures

Jail –upto 2 years, Fine – upto 10 lakh for 1st offence

Jail- upto 5 years, fine – 50 lakhs

  • Endorser

Fine – upto 10 lakh for and a year ban for 1st offence

Fine – 50 lakhs and ban upto 3 years

  • Publisher

Fine upto 10 Lakh found guilty

  • Others

As per the Consumer Disputes Redressal Commission Rules, there will be no fee for filing cases up to Rs. 5 lakh.

The credit of the amount due to unidentifiable consumers will go to the Consumer Welfare Fund (CWF).

State Commissions will furnish information to the Central Government on a quarterly basis on vacancies, disposal, the pendency of cases and other matters.

Apart from these general rules, there are Central Consumer Protection Council Rules, provided for the constitution of the Central Consumer Protection Council (CCPC).
It will be an advisory body on consumer issues, headed by the Union Minister of Consumer Affairs, Food and Public Distribution with the Minister of State as Vice Chairperson and 34 other members from different fields.

It will have a three-year tenure and will have Minister-in-charge of consumer affairs from two States from each region- North, South, East, West, and North-East Region.

Conclusion

The Consumer Protection Act 2019 proves that the Consumer is the king. The doctrine of ‘Caveat Emptor’ or let the buyer beware which came into existence in the middle ages had been replaced by the principle of Consumer Sovereignty.

Mob Lynching

The word ‘lynching’ is originated in mid-18th century America. Origin of ‘lynching’ is traced by Willam Lynch who lived in Virginia in the U.S. Back then lynching referred to vigilante justice meted out to black people. Before the America Civil War brought an end to slavery, several instances of black slaves being lynched where reported in the U.S. In some cases whites were also lynched for opposing slavery of black people.

What is Mob Lynching?

‘lynching’ shall mean any act or series of acts of violence, whether spontaneous or planned, committed to inflicting extrajudicial punishment or an act of protest and caused by the desire of a mob to enforce upon a person or group of persons any perceived legal societal and cultural norms/ prejudices.

‘mob’ shall means a group of two or more individuals, assembled with an intension of lynching.

Law related to Mob Lynching

In India there was no specific act which describe the punishment concerned with the heinous crime of mob lynching. Recently we came across many such cases of mob lynching which was shocking for the whole nation. This kind of cases comes to limelight when it is shared on social media and I think that’s the worst part of it. Then we share the post and make it viral after all this the ministers, police start investigation of the case and then the action is taken if any.

There are states like Manipur, Rajasthan which has passed an act of Mob Lynching in which the role of police, punishments, trails are all explained in detail manner.

There was a PIL filed in 2016 on which in 2018 three bench of Judges have issued a guidelines for prevention of mob violence and lynching

 A. Preventive Measures.

 (i) The State Governments shall designate, a senior police officer, not below the rank of Superintendent of Police, as Nodal officer in each district. Such Nodal Officer shall be assisted by one of the DSP rank officers in the district for taking measures to prevent incidents of mob violence and lynching. They shall constitute a special task force so as to procure intelligence reports about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news.

(ii) The State Government shall forthwith identify Districts, Sub-Divisions and/or villages where instances of lynching and mob violence have been reported in the recent past, say, in the last five years. The process of identification should be done within a period of three weeks from the date of this judgment; as such time period is sufficient to get the task done in today’s fast world of data collection.

(iii) The Secretary, Home Department of the concerned States shall issue directives/advisories to the Nodal Officers of the concerned districts for ensuring that the Officer In-charge of the Police Stations of the identified areas are extra cautious if any instance of mob violence within their jurisdiction comes to their notice.

(iv) The Nodal Officer, so designated, shall hold regular meetings (at least once a month) with the local intelligence units in the district along with all Station House Officers of the district so as to identify the existence of the tendencies of vigilantism, mob violence or lynching in the district and take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means for inciting such tendencies. The Nodal Officer shall also make efforts to eradicate hostile environment against any community or caste which is targeted in such incidents.

(v) The Director General of Police/the Secretary, Home Department of the concerned States shall take regular review meetings (at least once a quarter) with all the Nodal Officers and State Police Intelligence heads. The Nodal Officers shall bring to the notice of the DGP any inter district co-ordination issues for devising a strategy to tackle lynching and mob violence related issues at the State level.

(vi) It shall be the duty of every police officer to cause a mob to disperse, by exercising his power under Section 129 of CrPC, which, in his opinion, has a tendency to cause violence or wreak the havoc of lynching in the disguise of vigilantism or otherwise.

(vii) The Home Department of the Government of India must take initiative and work in co-ordination with the State Governments for sensitizing the law enforcement agencies and by involving all the stake holders to identify the measures for prevention of mob violence and lynching against any caste or community and to implement the constitutional goal of social justice and the Rule of Law.

(viii) The Director General of Police shall issue a circular to the Superintendents of Police with regard to police patrolling in the sensitive areas keeping in view the incidents of the past and the intelligence obtained by the office of the Director General. It singularly means that there should be seriousness in patrolling so that the anti-social elements involved in such crimes are discouraged and remain within the boundaries of law thus fearing to even think of taking the law into their own hands.

(ix) The Central and the State Governments should broadcast on radio and television and other media platforms including the official websites of the Home Department and Police of the States that lynching and mob violence of any kind shall invite serious consequence under the law.

(x) It shall be the duty of the Central Government as well as the State Governments to take steps to curb and stop dissemination of irresponsible and explosive messages, videos and other material on various social media platforms which have a tendency to incite mob violence and lynching of any kind.

(xi) The police shall cause to register FIR under Section 153A of IPC and/or other relevant provisions of law against persons who disseminate irresponsible and explosive messages and videos having content which is likely to incite mob violence and lynching of any kind.

(xii) The Central Government shall also issue appropriate directions/advisories to the State Governments which should reflect the gravity and seriousness of the situation and the measures to be taken.

B. Remedial Measures.

(i) Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that an incident of lynching mob violence has taken place, the jurisdictional police station shall immediately cause to lodge an FIR, without any undue delay, under the relevant provisions of IPC and/or other provisions of law.

(ii) It shall be the duty of the Station House Officer, in whose police station such FIR is registered, to forthwith intimate the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment of the family members of the victim(s).

(iii) Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty bound to ensure that the investigation is carried out effectively and the charge sheet in such cases is filed within the statutory period from the date of registration of the FIR or arrest of the accused, as the case may be.

(iv) The State Governments shall prepare a lynching/mob violence victim compensation scheme in the light of the provisions of Section 357A of CrPC within one month from the date of this judgment. In the said scheme for computation of compensation, the State Governments shall give due regard to the nature of bodily injury, psychological injury and loss of earnings including loss of opportunities of employment and education and expenses incurred on account of legal and medical expenses. The said compensation scheme must also have a provision for interim relief to be paid to the victim(s) or to the next of kin of the deceased within a period of thirty days of the incident of mob violence/lynching.

(v) The cases of lynching and mob violence shall be specifically tried by designated court/Fast Track courts earmarked for that purpose in each district. Such courts shall hold trial of the case on a day to day basis. The trial shall preferably be concluded within six months from the date of taking cognizance. We may hasten to add that this direction shall apply to even pending cases. The District Judge shall assign those cases as far as possible to one jurisdictional court so as to ensure expeditious disposal thereof. It shall be the duty of the State Governments and the Nodal Officers in particular to see that the prosecuting agency strictly carries out its role in appropriate furtherance of the trial.

(vi) To set a stern example in cases of mob violence and lynching, upon conviction of the accused person(s), the trial court must ordinarily award maximum sentence as provided for various offences under the provisions of the IPC.

(vii) The courts trying the cases of mob violence and lynching may, on application by a witness or by the public prosecutor in relation to such witness or on its own motion, take such measures, as it deems fit, for protection and for concealing the identity and address of the witness.

(viii) The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall be given timely notice of any court proceedings and he/she shall be entitled to be heard at the trial in respect of applications such as bail, discharge, release and parole filed by the accused persons. They shall also have the right to file written submissions on conviction, acquittal or sentencing.

 (ix) The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall receive free legal aid if he or she so chooses and engage any advocate of his/her choice from amongst those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987.

Current situation

There are guidelines made by the Supreme Court but it is followed by none. Making videos about mob lynching in public, showing that type of videos to the society through social media, newspaper, news channels is just promoting this kind of things. Its better we make people understand a guidelines made by the Supreme Court through various sources this will encourage the people to support Indian Judiciary and also work accordingly to the said guidelines.

We all are aware of Palghar Lynching case where two Sadhus and one driver killed by the villagers. As the people of the village assumed them to be child kidnapper who are engaged in organ harvest business. This also came across us through social media and then it takes a political turn. But no one unfolded the guidelines which was given by the apex court THAT’S THE CURRENT REALITY. News channel, social media do not explain the solution of the problem they just exaggerate it in every manner possible.