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Writ of Habeas corpus

BY – Prateek Jain

Protection against unlawful and indefinite detention/incarceration

Jurisdiction

  • The High Courts and The Supreme Court have got a very wide power of protecting the liberty of subjects, under Article 226 and Article 32 respectively of the Constitution.
  • A proceeding of habeas corpus is essential of a civil character, and is concerned with the personal liberty of a citizen.
  • However, the power is exercised on the criminal side of the High Court’s appellate jurisdiction.
  • These powers are to be exercised on certain fixed judicial principles and not in an arbitrary manner.
  • The jurisdiction can be exercised if the Court is satisfied that the detention is illegal or improper, where the Court can also embark upon an inquiry as to whether the enactment under which a person is detained is proper or not.

Who can claim?

  • An application for habeas corpus may be made by any person interested in the liberty of the detenue without unreasonable delay; and it must be supported by an affidavit of the petitioner.

Who can proclaim/give orders?

  • The High Courts and the Supreme Court exercise this power when satisfied that the matter is of urgency and no other legal remedy is available.
  • A writ is an order from a higher court to a lower court or government agency or official to appear and bring the person detained in front of the court.
  • Ordinarily a rule nisi (to show cause) is issued by the Court in the first instance. It is not open to Court to go behind the reasons given by Government for the detention, and it must see the motive of the impugned law and the bona-fide of the Government.
  • If the impugned detention has been induced by mala-fide and some other strenuous reasons and not for bonafide cause, it shall be quashed and the individual shall be set at liberty.

Some case briefings

  • In the case of Sunil Batra v. Delhi Administration, 1980 AIR 1579 => A lawsuit was filed in the Supreme Court through a letter from a co-convict for mistreating prisoners. This letter was taken up by the Supreme Court and issued the writ of habeas corpus, which stated that this order could not only be used against the illegal detention of the prisoner, but also to protect against mistreatment or inhuman behaviour by the detention authorities.
  • Kanu Sanyal v. District Magistrate Darjeeling Ors., 1974 AIR 510 => In this case, The Supreme Court ruled that one should not purely focus on the defined meaning of habeas corpus, i.e.  if it is found that the request was procedural writ and not a substantive writ. This case was all about the type and scope of the habeas corpus criterion.

The landmark judgment of The Additional District Magistrate of Jabalpur v. Shiv Kant Shukla (Habeas Corpus case), 1976 AIR 1207

  • Human rights across the nation were being infringed in the name of Emergency in which politicians, activists, protestors, dissenters were being detained.
  • In this particular case, detenues were detained under Maintenance of Internal Security Act, 1971.
  • Their challenge was in many High Courts through the writ of Habeas corpus against their detention.
  • Majority of the High Courts held the maintainability of the writ of Habeas corpus.
  • 5-judge Constitution Bench of the Supreme Court heard the matter and question the order issued by the President under Article 359(1).
  • The majority of judges in this case ruled that no one can move into High Court under Article 226 to challenge the legality of any detention under the writ of Habeas corpus or under any other writ.
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Violence against women: Persistent Patriarchy and Feminist theories.

BY – Vidushi Rastogi

We live in a society where women are taught to be quiet, where raising voice against injustice is not considered a good thing for women. Where women are the sufferers and society is the audience. Where every window is shut for a woman, the door of law is always open for women. Feminist are trying hard to bring about a peaceful environment for women to life in some criminal minded people are not willing to stop violence against women. It’s high time that we understand that women are not fragile showpieces to be kept and decorated at home. Women have an identity of their own. They have the power to change the world. Everyday a new case of violence against women flashes in the news leaving everybody scared. In this 21st century also women have to think twice before stepping out of their home alone. The patriarchal society can’t allow women to grow, to learn ,to explore where as feminist are trying hard to make the world acknowledge that women’s identity are equal to men. Our Indian legal system is becoming more strict and aware of the rights of women. Where on one hand some criminal minds are violating laws and torturing women, on the other hand our Indian legal system is implementing strict laws to protect women from these criminals.

Feminist theories believe that equality has been a big question in a woman’s life. They have quoted that even equal pay at work for women is a myth, the reality of which is grim. Women are often harassed at work places. Criminals are covetous to women if they are more efficient and more hardworking. Women have also been denied the bodily right which comes under tortious liability. Feminist theories are highlighting and working to eradicate the injustice happening everyday to women. They also quoted that women are also denied even the basic fundamental right that is right to speak and right to freedom.There are various legal aid which is working to help these women and bring about a peaceful environment for women to live, to work , to speak.
A systematic review from WHO. Responding to intimate partner violence and sexual violence against women: WHO clinical and policy guidelines. Violence against women and girls is increasingly visible on the global health and development agenda—both as a matter of social justice and equality for women and as a public health priority. After many years of dedicated efforts, more is known about the epidemiology of some forms of violence against women, and knowledge is increasing about what works to prevent and respond to such violence.
However this is not the end. Everyday and everywhere women go through such violence. Women are fearful to raise their voice against these felons because after this the felons are not to be blamed it is the women who are blamed. Society and patriarchy adversely affect women’s lives. They are always judgemental towards women. Women are always judged upon the shape, size, colour , weight and the kind of dress they wear. ‘If a woman in short dress is harassed then in the case it is the women to be blamed to attract the criminal minds’ this is what the society and patriarchal minds think. Feminist women have been raising their voice to support these women who feel helpless and depressed and had to face violence.
Women face harassment in their homes also. Sometimes it’s a family member who does it and women are forced to be quiet. They live with that trauma, and with their abusers without ever getting the chance to speak about it.
However our legal system is becoming stronger with each passing day. Our legal system is standing and supporting women when their rights are violated. New and strong laws have been formed by the Indian legal system to support women. Women have all the rights to seek justice and punish these criminal minds. Now criminals should rectify their thoughts because now more and more women are coming forward to seek justice for all the injustice they have had to go through for so long.

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Victimless crime : Why is Piracy a crime?

BY – Dhananjay Bhattacharya

Piracy as a word came into popular use in the early era of colonisation when the European powers would ship valuables back from their colonial holdings back to their home country and a bunch of people would steal this loot. This act was known as piracy and the people were called pirates. Modern day piracy is very similar and thus we use this label to define it as well.

A Modern day pirate is an individual who through illicit means downloads information mostly in the form of audio visual/visual entertainment, although there exists a large group of people who pirate academic content, something which we shall talk about later.

There is a popular political movement that calls piracy of the entertainment produced by big publishing houses as a victimless crime as the people who pirate aren’t those who can afford such entertainment anyway. The prohibitive cost of access to the content by the media houses disallows people in third world countries with lower income to enjoy such content and piracy offers a way they can enjoy the same. The movement goes as far as to push the narrative that this piracy actually is a marketing tool that builds fan bases that’ll buy their content when they are able to afford to do so. Piracy is a crime of desperation and not of malice and thus has no victims.

Now, let’s talk about Academia. Many research articles are behind a paywall and thus remain out of reach of poor scholars. Medical and engineering books are so expensive that multiple students have to share books to be able to afford an entire series on just one subject. Out of desperation and Convenience a lot of students tend to get these books in soft formats i.e PDF,EPUB etc. this is violating copyright law and takes away from the income the publisher would be able to accrue had piracy been not possible. But is exploitation of poor students fair, should education be so cost prohibitive that there are millions of people worldwide that support piracy for reasons of fairness in their minds.

Already established principles of Copyrights and Patents push for limited period of Monopoly on deriving economic benefit of such IPR but it is unable to keep pace with the fast moving world of the modern era.

Thus,What we  need is a new way to think about Intellectual Property Rights so there is equity in the industry and not unbridled Capitalism. Otherwise, piracy as a tool will alway remain popular and it’ll only grow as more of the world comes online and gets access to information for free.

by-shaurya-kaushik

The Maintenance of Internal Security Act (MISA)

By:

Shaurya Kaushik

3rd Year, 5th Semester

CMR School of Legal Studies

Introduction 

The Maintenance of Internal Security Act (MISA) was a highly controversial act passed by the Indian parliament to tackle the civil and political unrest in the country as well as other threats like terrorism, international sabotage, deceit, etc. The act gave Prime Minister Indira Gandhi’s administration and Indian law enforcement agencies expansive authority that included unbounded detention without trial, search and confiscation of property without warrants, and phone tapping.  During the national emergency from 1975–1977, the law was changed multiple times and was used to suppress political disagreement. It was harshly misused. When Indira Gandhi lost the 1977 Lok Sabha election and the Janata Party took office, the act was finally repealed.

Background

MISA was a type of National Security Law which was introduced in 1971 by the Prime Minister, Indira Gandhi after the expiration of the Preventive Detention Act (PDA) in 1969.PDA was established in 1950 and was independent India’s first preventive detention law. The powers granted to the government under MISA were very similar to the PDA.

Various types of National Security Laws have been introduced by the Government from time to time in order to maintain the country’s sovereignty, security, and integrity. A few of these (excluding MISA) are -Terrorist and Disruptive Activities Act, Preventive Detention Act, Armed Forces(Special Powers) Act, Prevention of Terrorism Act, Unlawful Activities (Prevention) Amendment Act, National Security Act, etc.

MISA was replaced by the still applicable National Security Act that allows the central or state government to arrest a person up to 12 months (which can be extended even further if the government finds new evidence) in order to prevent him from engaging in a way that might jeopardize national security or upset public peace or to ensure the community’s basic goods and services are maintained.

History

When PDA was implemented in 1950, it was eventually put into effect for a period of 1 year, but was stretched until 31st December, 1969. MISA was enacted on 2nd July, 1971, and was based on PDA.

A ton of innocent civilians were suspected to have been unreasonably detained, tormented, and there were also reports of forceful sterilization in some cases as a direct consequence of the law’s lack of consideration for legal and constitutional protective measures of human rights, particularly when the government tried to disrupt the opposition and also during the national emergency era.Another primary reason behind the enactment of this act was justification of imprisonment and detainment of the political competition (which at that time was the Janata Party) of Indira Gandhi’s government. Those who were arrested under this law included the opposition party’s leaders, workers and activists. Throughout the 2-year national emergency period, more than 1,00,000 civilians which included reporters, journalists, politicians, scholars, activists, protesters, etc. were imprisoned without the option of going to trial for a period which could extend up to 18 months. Some people had even gone to jail for speaking out against forceful sterilization or the removal of slums that had been ordered by the government.

Under the 39th amendment of the Indian Constitution, MISA was included in the 9th Schedule, which gave it complete immunity from any legal challenge or judicial scrutiny, even if it was found to be violating the fundamental rights that had been guaranteed under the constitution or the Basic Structure.Following the Lok Sabha election in 1977 which resulted in Janta Party emerging as winners and forming the government, that act was finally repealed.MISA was subsequently removed from the 9th Schedule of the Indian Constitution by the 44th Amendment Act of 1978.However, other acts or laws that were enacted forcefully on 13th December, 1974 such as the Armed Forces (Special Powers) Act of 1958 (AFSPA), the Essential Services Maintenance Act of 1968 (ESMA), and the financial equivalent of the act, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), to prevent smuggling and black-marketing in foreign exchange, are still in effect.Other problematic successors to MISA include the National Security Act (1980), the Terrorism and Disruptive Activities (Prevention) Act (TADA, 1985–1995), and the Prevention of Terrorism Act (POTA, 2002). These legislations were condemned for allowing broad authority to combat domestic and cross-border terrorism and political violence while leaving civil liberties unprotected.

Pension Scheme

After the annulment of the act, it was announced that the civilians arrested under MISA during would be given a monthly stipend as compensation for their sufferings with the amount depending on the state they belong to. The governments however have not been okay with this scheme and have several times tried to discontinue it.

The Rajasthan Government in 2019 decided to stop paying the allowance to pensioners and labelled them as “rule breakers” and stated that it is an insult to the real freedom fighters if the detainees are given the same status and respect as them. When the decision sparked outrage in the state, the state government responded by stating that the pension had not been terminated, but that physical verification of claimants had been demanded. In Madhya Pradesh, The Congress government, which took office in 2018, opted to end the pension system, citing huge irregularities in pension payments. The administration stated that the pension would be reinstated once the physical verification of the pensioners was completed. After the pension was not resumed for about a year, 15 pensioners knocked on the door of the Madhya Pradesh high court, pleading for the court to intervene. The high court, in response to petitions, ordered the government to reinstate the pensions within a month and asked them to provide a valid reason in case they failed to do so. When the state government of Chhattisgarh intended to abolish the pension scheme in 2019, around 70beneficiaries filed a lawsuit in the High Court opposing the government’s decision. After hearing both sides, the High Court deemed the state government’s decision to cancel the MISA pension programme for detainees to be illegal and invalidated it.

References

FINOLOGY BLOG, What is India’s National Security Act? (finology.in), last visited 19th January, 2022

THE HINDU, What is National Security Act? – The Hindu, last visited 19th January, 2022

DAILY O, MISA, Emergency, forced sterilisations: Why is Priyanka Gandhi resembling Indira Gandhi a good thing? (dailyo.in), last visited 19th January, 2022

INDIA, Emergency in India during 1975: Atrocities and Acts during Emergency – India.com, last visited 19th January, 2022

OPINDIA, Rajasthan govt stops the pension for MISA prisoners of emergency (opindia.com), last visited 27th January, 2022

NEWS18, MP High Court Reverses State Govt Order of Revoking Pension of MISA Detainees (news18.com), last visited 27th January, 2022

THE NEW INDIAN EXPRESS, HC quashes Chhattisgarh government’s decision to abolish pension scheme for MISA detainees- The New Indian Express, last visited 27th January, 2022

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The Corroboration Rule: Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat

Case Summary BY- Vidhi Kela

The Corroboration Rule

●   Evidence has paramount importance in every case, whether it is a criminal case or a civil case, because it affirms a fact.

●   The facts cited as evidence are given weight by evidence. Evidence aids in minimizing the time expended on a case.

●   Evidence that strengthens or confirms pre-existing evidence is referred to as corroborating evidence.

●   It is used in courts to back up a witness’ testimony.

●   Generally, if the court is satisfied that a single evidence or single testimony confirms the accused’s guilt beyond a reasonable doubt, a conviction can be developed.

●   However, in certain cases, verdicts have been established based on statute and case law wherein a single piece of evidence was inadequate to prove a defendant’s guilt and other evidence were necessary to corroborate the main evidence.

●   The Corroborative Rule creates a barrier to conviction based on a single piece of evidence, so as to ensure that the judge or jury caution themselves against relying on a single piece of evidence whilst convicting the accused.

●   So basically, the necessity for additional evidence is required in cases when there is a single piece of incriminating evidence, but its credibility is in question. The law thus requires extra evidence to lessen the possibility of a mistake leading to a false conviction of an innocent individual.

●   Section 156 in The Indian Evidence Act, 1872 states that ‘Questions tending to corroborate evidence of relevant fact are admissible’.

Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat

●   Bench: Thakkar, M.P. (J)

●   Parties to the case: Bharwada Bhoginbhai Hirjibhai (Appellant) and State of Gujarat (Respondents)

●   Date of Judgement: 26 May, 2017

Background:

●   The facts of the case date back to the evening of September 7, 1975 approximately around 5.30 pm.

●   Two girls went to the appellant’s house to meet their friend who also happened to be the appellant’s daughter (all the girls belonging to the same age group of 10-12 years).

●   Despite the fact that the daughter wasn’t home, the appellant created a false impression of his daughter’s presence and induced the girls to enter inside.

●   Once they entered the house, the appellant shut the doors and undressed himself in front of the girls, thus exposing himself.

●   He even forced one of them (hereinafter referred to as P.W. 2) to indulge in an indecent act upon which P.W. 2 started to weep and managed to successfully flee from there.

●   However, P.W. 1 couldn’t escape from the clutches of the appellant and hence was sexually assaulted by him.

Judgement:

●   In the verdict of this present case, the Apex Court stated that ‘in the Indian context, refusing to act on a sexual assault victim’s testimony merely due to the absence of corroboration is similar to adding insult to injury’.

●   The bench also questioned the necessity to examine the testimony of a girl or woman who reports rape or sexual misconduct through glasses of doubt, disbelief and suspicion when doing so, especially in a male-dominated society, like ours, would only mean justifying male chauvinism.

●   Hence, on the doctrine that ‘the evidence of a victim of sexual assault stands on par with evidence of injured witnesses’, not only was the appellant held guilty for sexual misconduct and attempt to rape but also that a precedent was laid that in cases involving sexual assualt, the conviction of an accused is lawful even in the absence of corroborating evidence.

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TATA Cellular vs. Union of India

JUDICIAL REVIEW AND SEPARATION OF POWERS IN INDIA

CHRISTOPHER THOMAS, BA, LL.B

INTRODUCTION

Judicial Review is the power of the courts to interfere in administrative, legislative, and judicial matters if it seems that there is anything unconstitutional or arbitrary. The ability of courts to rule on the constitutionality of government legislative and executive activities that fall under their customary jurisdiction. Its origins can be traced back to the doctrine of limited government and the theory of two laws, namely, an ordinary law and supreme law, the Constitution. Separation of powers emphatically outlines the boundaries within which the executive, legislative, and judiciary should function and one cannot interfere with the matters of the other.

The separation of powers principle refers to three types of governmental authorities:

i. A single person should not serve in more than one of the state’s three organs.

ii. No state organ should interfere with any other state organ.

iii. No one organ should perform the functions of any other organ.

HISTORICAL BACKGROUND

In India judicial review was exercised by courts even before the commencement of the Constitution. The Government of India Act 1935 provided Federal Courts with powers to review the decision which may act as a hindrance to the federal structure. The federal courts in India worked vigorously with wisdom and dignity and took various constitutional decisions. Article 13 of the Constitution provides for the scope of judicial review. As per this article, any legislation which takes away the rights of the citizens is ultra vires to the constitution.

The theory of separation of powers is traced back to Plato and Aristotle. Later French Philosopher John Bodin and British politician Locke expressed their views about the theory of separation of powers. In his work “Esprit des Lois” (The Spirit Of Laws), published in 1785, Montesquieu was the first to express this notion scientifically, properly, and methodically.

PRESENT SCENARIO

Following the end of the emergency in India, the Supreme Court was chastised for issuing a series of rulings that were seen by many as violating Indian citizens’ basic human rights, and it changed the way it saw the constitution. The Supreme Court stated that all legislation, whether significant modifications to the Constitution or the creation of schemes and bye-laws of municipal authorities that influence a citizen’s life, is subject to judicial review.

In our Constitution, there are no specific provisions regarding the doctrine of separation of powers. However, the constitution has some directive principles, such as Parts IV and V, and Article 50, which separates the judiciary from the executive. The state shall take steps to separate the judiciary from the executive in the public interest. There is no formal and dogmatic separation of powers except for the state’s services, and there is no formal and dogmatic division of powers except for this.

In India, Separation of Powers is not exactly as it is portrayed by its propounder. Judiciary plays a vital role as it acts in furtherance of the powers vested in it and interferes with the other two organs. The Supreme Court has the authority under Articles 142 and 145 of our constitution to declare void legislation approved by the legislature and executive acts if they contravene any provision of the constitution or a law passed by the legislature in the case of executive operations. Even Parliament’s power to modify the constitution is subject to the Court’s review. If an amendment alters the fundamental structure of the constitution, the Court has the authority to declare it void. On many occasions, judges have issued policy directives to the Parliament.

OPINIONS AND SUGGESTIONS

The efficiency of the organs of the state increased due to the separation of works hence time consumption decreased. Since the experts will handle the matters of their parts, the degree of purity and correctness increases. There is the division of work and hence the division of skill and labor occurs. Judicial review of the actions by the organs put up a mechanism where they will be held accountable thus limiting the scope for arbitrariness.

Separation of Powers and Judicial review are contradicting subjects and also they are intertwined by their nature. As one tries to give autonomy the other tries to take away the autonomy. Therefore a system where judicial review and separation of power coexist should be created where there will be minimal judicial review and it should be provided only when there is anything unconstitutional that takes away the fundamental rights of the citizens.

CONCLUSION

Judicial review and separation of powers of various organs of the government is a necessity for the smooth functioning of a democracy. A democratic country cannot grow when these two principles are absent. The inherent power of the judiciary to correct the wrongs of the other organs maintains a system of check and balance which is essential. But boundaries are crossed as the judiciary might take into its hand several acts of the executive or legislative even when they are constitutional and for the public interest. Thus in India, it is false to say that there is a fully functioning theory of separation of power rather it is partial and judicial review is also limited as every act of other organs if put to judicial scrutiny then there will not be any governance rather anarchy.

ENDNOTES

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Shri Rama Sugar Industries Ltd v. State of A.P

Shri Rama Sugar Industries Ltd v. State of A.P

Case Comment

Christopher Thomas, BA.,LL.B

FACTS OF THE CASE

Section 20(3) (b) of the Act states that the government may exclude any person from paying taxes by issuing a notification.The cooperative societies of sugarcane growers were awarded a one-year exemption from paying tax in accordance with the said policy. The appellant and other joint stock corporations that run the sugar factories were denied the benefit of the exemption. On behalf of the appellant, it was argued that the government could not restrain itself from assessing the merits of each case by establishing a policy that exempted only cooperative sugar mills.

It was further argued that, because the objective of Sec. 21(3) is to stimulate new or expanded sugar factories, the government could not refuse to examine all but one kind, namely cooperative sugar factories, for exemption purposes. It was also argued that new sugar factories and expanded sugar factories all belong to the same class, and cooperative sugar factories have nothing exceptional to warrant their status as a special class deserving of special treatment.

The state of Andhra Pradesh argued that it had complete discretion in deciding the policy in providing the exemption, and that cooperative sugar factories made up of cane growers are a distinct category that deserves to be treated differently than other sugar factories. According to the facts, the state claimed that the exemption was only given to new cooperative sugar mills, and that it was only for a year. It was also claimed that the appellants’ case was individually evaluated and dismissed on the merits.


ISSUES

  1. Whether the Government  had  fettered its  discretion by laying down a policy  of confining the benefit of exemption to Cooperative Sugar Factories?
  2. Whether it is the discretion of the Government to grant exemption from payment of Purchase Tax?

REASONING OF THE COURT

Justice Alagiriswami, relied upon R. v. Port of London Authority for the proposition that if the administrative authority adopted a policy but heard the appellant and then decided against him because in his opinion there was nothing exceptional in the application to justify departure from the policy, no legal infirmity was committed. In the present case, the appellant company had been heard and their application was rejected because the policy was to grant exemption only to the co-operative sugar factories.

Alagiriswami, J., therefore, observed that it was open to the government to adopt a policy provided it was willing to consider an application on merit.

Mathew ,J., dissenting also observed that there was no objection if the government adopted a policy. He, however, added that “an authority entrusted with discretion must not, by adopting a rule or policy, disable itself from exercising its discretion in individual cases”.

JUDGEMENT

The appeal was dismissed by a majority decision of 3:2

The Majority held that the decision of the Government valid and stated it would be open to the State  Government to grant exemption to new  factories only but  not the expanded factories, to grant the exemption for one year instead of three years or two years as contemplated under  the Section, to grant the exemption to  factories  in one area but not to factories in another area, to grant the exemption during a particular period but not during  another period.

The Minority held that Picking out cooperative societies of sugarcane growers for favoured treatment to  the exclusion of other new  or  substantially expanded industries is wholly unrelated to the object of the exempting  provision and the policy or rule adopted  by the State Government is legally not relevant to the exercise  of the power of granting exemption.

COMMENT

In India, the courts are the defenders of our constitution. They have thought since the beginning that executive and legislative powers that are not subject to judicial examination are a form of defiance of the rule of law. As a result, in order to accomplish justice and maintain the Rule of Law, they have developed a variety of formulations to control the use of administrative discretion through their numerous pronouncements. After combining these formulations, we may divide judicial control at the stage of administrative discretion exercise into two categories. 1.The authority is deemed not to have exercised its discretion at all. 2.The authority has not exercised its discretion properly.

‘The courts exercise judicial control if the administrative authority has either resigned from exercising its power or placed constraints on its exercise of discretion, or if the jurisdictional facts are either missing or have been incorrectly decided.’ The law has been made crystal plain in Indian Railway Construction Co. Ltd. v. Ajay Kumar. The Supreme Court ruled in this instance that discretion can only be used by the authority to which it is entrusted. The authority must legitimately handle the issue at hand; it cannot act on the orders of another body or deny itself the ability to exercise discretion in each case. It must not do what it has been banned to do or what it has not been permitted to do in the ostensible exercise of discretion. The judiciary has the power to compel the administrative authority to exercise discretion, but not in a specific manner.

The state failed to demonstrate why the cooperative sugar factories required protection or why they were exempted. The majority appears to prefer that the government make such economic policy decisions. The legislature gave the government the authority to exempt new and expanding factories from the law. We don’t understand how the government’s action had nothing to do with legislative policy. Because the government held the right to exempt, it was the sole arbiter of whether or not this factory should be exempted. The only ground on which its actions could have been questioned was whether they were genuine. That isn’t likely to be the situation here. Cooperative firms are provided with a variety of benefits, including tax exemption. The government’s policy is to develop and encourage cooperative firms. It is argued that Mathew, J., was incorrect in asserting that preferential treatment for cooperatives was not prohibited by state policy direction principles. One of the state’s directive principles is to ensure that “ownership and control of the community’s material resources are so distributed as to serve the common good” and that “the operation of the economic system does not result in the concentration of wealth and means of production to the detriment of the common good.” Cooperative firms are unquestionably more conducive to the constitution’s vision of social order. The court, it is said, could not be a better judge of economic necessities than the government, which is ultimately accountable to the legislature.

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Shayara Bano vs. Union of India

BY – Ashok Kumar Choudhary

Talaq-e-Biddat

Triple Talaq, also known as talaq-e-biddat (immediate divorce). It is a form of Islamic divorce practice in India to dissolve marriage connections, performed by Muslims in which the husband can divorce his wife by saying Talaq three times. Over the years, Muslim women in India have complained about living in constant fear of being expelled from their matrimonial houses in a matter of seconds since a Muslim man, may end years of marriage by just pronouncing the word “talaq” (divorce) three times. Several decades ago, a campaign to eliminate the practice of unilateral instant “triple talaq” began in India. However, it garnered attention few years ago when a 35-year-old mother of two appealed the Supreme Court for justice.

 FACTS-

Shayara Bano vs. Union of India and Ors. 2017

  • Shayara Bano, the petitioner, had been married to her husband, Rizwan Ahmed, for 15 years. He divorced her in 2016 using immediate triple talaq (talaq -e biddat), which is a procedure that permits a man to divorce his wife by repeating the word “talaq” three times in one sitting without his wife’s permission.
  • This is an Islamic tradition that allows males to effect immediate and irrevocable divorce by saying the word ‘talaq’ (Arabic for divorce) three times at once in spoken, written, or, more recently, digital form. Triple talaq, polygamy, and nikah halala (the practice of compelling women to marry and divorce another man so that her former husband might re-marry her after triple talaq).
  • The wife contested the divorce, requesting that the Supreme Court issue a writ declaring the divorce unlawful ab initio because it violated her basic rights. As a result, the constitutionality of Triple Talaq was brought into doubt before a Supreme Court Constitution bench of five judges.
ARGUMENTS-
Petitioner
  • The petitioner argues that triple talaq is not a form of divorce recognized by the Muslim personal law (Shariat) act, 1937. He said that several high courts and supreme court decisions have restricted Muslim men’s unilateral right to divorce women and have criticized the practice of triple talaq allowed by the Quran, this judgement affirms that the Quran permits divorce for reasonable cause and if a preceded attempt at reconciliation. He urged the court to overturn triple talaq because it violates Article 14 and 15 of the constitution by granting Muslim males an uncodified right to divorce.
  • He also said that if triple talaq is repealed, the rule of divorce for Muslims would be the Dissolution of Muslim Marriage Act of 1939, which would apply equally to the whole Muslim population, regardless of gender.
Respondent
  • The respondent said the Shariat Act of 1937 does not codify basic Muslim personal law, but it does say that Sharia shall apply as a rule of decision to Muslims, above any tradition or practice to the contrary. He said that the purpose of the act was to abolish customs that discriminated against women in matters of inheritance. marriage is a private transaction governed by Islamic law no official legislation can’t change it.
  • Mr. Sibal refers to the discussions in the Constituent Assembly, which state that personal laws are not covered by Article 13. He stated that the assembly rejected an amendment that attempted to add “and anything else” to the description of legislation under consideration, as well as the inclusion of such law under article 13. He contended that the explicit inclusion of personal law in the concurrent list, as well as its omission in article 13, show the intention of the constitution’s drafters to exclude personal law.
  • You can refer to article 25 (2) for the right to freedom of religious exercise. He said that the constitution gives Parliament the authority to pass social reform legislation on secular activities linked with religious rituals. As a result, a court may only examine the law’s validity after it has been passed by Parliament. Mr. Sibal cited money gathering in a temple as an example of such secular behavior.
  • He also said that Muslim women may even benefit from rapid release from poor marriages. He offered four alternatives for Muslim women to avoid the discriminatory practice of triple talaq:

1. She can register the marriage under the Special Marriage Act of 1954,

2. insert conditions into the nikahnama to prevent her husband from performing triple talaq,

3. delegate the right to talaq to herself,

4. insist on the payment of a large Mehar sum to prevent the use of triple talaq.

 JUGDMENT
  • Justice Jagdish Khehar and Justice J. Abdul Nazeer said that triple talaq is a part of Muslim personal law, and article 25 gives the right to every citizen of India to peruse their religion and these religious practices are protected, so that’s not their jurisdiction.
  • Is Tripple talaq valid or invalid judiciary cannot decide that only parliament can decide that something it’s not their jurisdiction.
  • So, they said they can restrict this practice for 6 months and then the parliament of India can decide that it’s valid or invalid.
  • Justice. Rohinton Nariman and Justice U.U Lalit said whether the law is before from the constitution or after, all the laws have to be consistent with the fundamental rights, yes article 13 cannot interfere in personal laws, we cannot challenge article 13 with personal laws, but instant triple talaq is not challenged in article 13.
  • It was challenged in articles 14,15,21 and 25 And article 14 clearly states that if any law or practice is arbitrary and violated the fundamental rights so the supreme court has the power to declare it unconstitutional. Instant triple talaq is arbitrary and it violates the rights of women.
  • Justice. Kurian Joseph said instant triple talaq practice is un-Islamic and it is not an essence of Muslim religious practice.
  • So, by the majority 3:2 instant triple talaq was declared illegal and unconstitutional and gave the order to the central government to make it a law. And in Aug 2017 supreme court declares triple talaq as illegal but after the judgement, there were many triple talaq cases are reported so they have to make a rule against Tripple talaq. And in December 2017 a bill was passed in Lok Sabha
  • Muslim (PROTECTION OF RIGHTS ON MARRIAGE) bill 2017 but it was not passed by Rajya Sabha and it lapsed. In September 2018 cabinet passed an ordinance and in which tipple talaq became a punishable offence and 3 years of imprisonment was prescribed, and in July 2019 the bill was passed in Lok Sabha and Rajya Sabha and received the assent of the president of India.
Muslim Women (PROTECTION OF RIGHTS ON MARRIAGE) Act,2019
  • Offence and penalty: supreme court clearly said that Tripple talaq is an illegal act and this bill declare Tripple talaq a cognizable offence and imprisonment up to 3 years plus fine.
  • Who can file a complaint: Only a wife can file the complaint against whom talaq has been declared or any person who is related to her with blood or marriage can file the case on her behalf.
  • Bail: Magistrate can grant the bail only after hearing the women and then if the magistrate believes that there are some reasonable grounds for granting bail.
  • Allowance and Custody: The woman is also entitled to a subsistence allowance or Maintenace for herself and her dependent children from her husband and also, she is entitled to the custody of her minor children.
Conclusion

The landmark decision in the Shayra Bano case is a step toward equality and it has laid the foundation for future personal law and social reforms. This judgement addressed the minorities in a viable way, which is a step toward secularism. Although gender justice was not the primary focus, it has enormous beneficial consequences for promoting women’s rights and gender equality in India. This decision is supposed to be considered fairly and to support Muslim women in living a better and more secure life as provided by the constitution.

References

ihttps://www.escr-net.org/caselaw/2018/shayara-bano-and-others-v-union-india-and-others-writ- petition-c-no-118-2016

iihttps://main.sci.gov.in/supremecourt/2016/6716/6716_2016_Judgement_22-Aug-2017.pdf

iiihttps://www.indiacode.nic.in/bitstream/123456789/2303/1/A1937-26.pdf ivhttps://www.scobserver.in/court-case/triple-talaq-case/day-4-of-arguments-respondents-kapil-sibal-aimplb

vhttps://scroll.in/article/848076/religion-a-matter-of-faith-not-logic-cji-khehars-dissenting-opinion-on-triple-talaq

vihttps://egazette.nic.in/WriteReadData/2019/209473.pdf

viihttps://prsindia.org/billtrack/the-muslim-women-protection-of-rights-on-marriage-bill-2017

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Sexual Abuse of Men and the lack of Legal Infrastructure

BY – Shreya Garg

Sexual abuse refers to any action that pressures or coerces someone to do something sexually they don’t want to do. It includes unwanted touching, rape or attempted rape, threatening someone into unwanted sexual activity or sexual contact with someone without their consent. (1) It can happen to anyone regardless of their age, sexual orientation or gender identity. However, we often overlook the fact that men too, are sexually abused, whether by women or by men. Men are coerced into pretending to be strong even when they are psychologically vulnerable. Also, it is a misrepresented fact that men cannot be sexually exploited.  They are always assumed to be the perpetrators and never the victims. The society has its obnoxious ways of traumatizing men and forcing them to behave masculine. Psychological aspects of sexual abuse include Post traumatic stress disorder(PTSD). There are additional concerns for them due to societal notions of emotional strength and stoicism. Most victims are afraid to report their sexual abuse for fear of having their sexual identity called in question or having their reputation harmed. In the case of boys, they are mostly unable to report their abuser since they are either acquaintances or family. That’s why most of the cases go unreported. Sexual violence against men occur in a variety of settings, including homes, workplaces, schools, in police custody and prisons. It is vital that everyone realises that sexual abuse or violence is a gender neutral crime. Focusing on issues of one gender and ignoring issues of the other is unfair and unjust. Like other crimes, it demands the public’s and legislator’s attention,rather than blaming them for their misery. Many sexual abuse survivors have come forward to tell their stories. Lokesh Pawar, who was being sexually abused from the age of 6 to 15 by a relative. The day his abuser told him, “karde meri khushi ke liye,” he stood up to him and couldn’t take it anymore. He saw a rapist in him and not a relative. “Every such experience is painful and traumatic, but the healing begins the moment you realize that you are innocent and you have nothing to be ashamed of,” says Lokesh Pawar. (2)

Laws related to sexual violence in India

  • Sec 375 of the Indian Penal Code, 1860: A man is said to commit rape who, has sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mind and in any case if she is under 18 years of age. (3). The Sec opens with the words “a man is said to commit rape” making it gender-biased because it explains that only women can be rape victims, while men can only be the perpetrators.

This shows that in India, there is no specific law for a man who rapes another man, or for a woman who rapes a man. At best, they can only be sodomised under Sec 377 of IPC. Men are always perceived as only perpetrators and rarely as victims.

  • Sec 354{A}-{D} of the Indian Penal Code, 1860: It defines the offence of sexual harassment. This sec, again, ignores sexual harassment of men. In India, there is no provision under which they can report their abuser. Most importantly, when it comes to offences like sexual abuse, both the victim and the perpetrator can be of either gender. This differs from the law set out in Sections 354{A}-354{D} and 375 of IPC, where the definition of offences of assault or criminal force, stalking commences with “Any man” or “A man”. (5)
  • Sec 377 of the Indian Penal Code: Sec 377 IPC criminalised all sexual acts “against the order of nature.” (6). According to the NCRB data, 1,347 cases were registered under Sec 377 in 2015, 60 % of which victims were children. (7). The SC in Navtej Singh Johar v. Union of India (8) held Sec 377 to be unconstitutional. But it remains in force relating to sex with minors, non-consensual sexual acts, bestiality.

Thus, male victims can only have protection under this Section and nowhere else. Boys under the age of 18 are protected under {POCSO} Act, 2012, a gender neutral law which recognises both boys and girls as victims of sexual violence. It defines different forms of sexual abuse of a child, prescribing strict punishments for the same. (9) There’s no reason why sexual abuse of a male youngster should be regarded differently than one of an adult guy.

Laws prevalent in different Countries                                        

In the US, FBI’s Uniform Crime Report{UCR} defines Forcible Rape as “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” The definition was redefined in 2012 and is gender neutral as it includes any gender of the victim as well as the perpetrator. (10). Whereas in the UK, only a man can commit rape and not woman because the penetration has to be with a penis. But both men and women can be raped. (11). Northern Ireland also changed its rape laws to recognise the rape of men. Sexually assaulting men is a crime in China after the 2015 Amendment to the criminal law. Now men can press charges against women. (12).

Conclusion

The only reason that men can’t seek justice is that there are no specific laws that penalize sexual abuse of men in any way. Male victims’ complaints are not heard, thus they try to hide, resist or deny their abuse. The idea that women can sexually harass men is still unthinkable in Indian society. Legislators should make amendments to the law and give male sexual abuse equal consideration. In comparison with the developed nations, India still has a long way to go.  Art 14 of the Indian Constitution guarantees “Right to Equality” (13) and Art 15 declares that the citizens shall not be discriminated on the grounds of religion, race, caste, sex, place of birth or any of them. (14) So why there is still lack of legal infrastructure in cases of sexual violence against men. Gender neutral laws are desperately needed. The Law Commission of India in its 172nd Report after considering all aspects had recommended that sexual offences should be made gender neutral. The Criminal Law {Amendment} Bill, 2019 is a positive step forward because it aims to effectively protect the constitutional rights of all persons vulnerable to sexual exploitation including men and transgender. (15). 

References: 

1. {PDF} What is sexual abuse, Love is respect, https://www.loveisrespect.orpdf/What_Is_Sexual_Abuse.pdf

2. Lokesh Pawar, I am a sexual abuse survivor. No, I am not a woman, The Print, April 18, 2021, https://theprint.in/opinion/i-am-a-sexual-abuse-survivor-no-i-am-not-a-woman/641099/

3. Indian Penal Code, 1860, Sec 375

4. Indian Penal Code, 1860, Sec 354{A}

5. Indian Penal Code, 1860, Sections 354{A} to 354{D}

6. Indian Penal Code, 1860, Sec 377

7. Deeptiman Tiwary, Children victims in 60 percent cases under section 377: NCRB data, October 21, 2016, https://indianexpress.com/article/india/india-news-india/rape-section-377-indian-penal-code-ncrb-date-pocso-children-rape-3033639/

8. AIR 2018 SC 4321, https://indiankanoon.org/doc/168671544/

9. The Protection of Children from Sexual Offences Act, 2012

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Separation Of Powers

JUDICIAL REVIEW AND SEPARATION OF POWERS IN INDIA

CHRISTOPHER THOMAS, BA, LL.B

INTRODUCTION

Judicial Review is the power of the courts to interfere in administrative, legislative, and judicial matters if it seems that there is anything unconstitutional or arbitrary. The ability of courts to rule on the constitutionality of government legislative and executive activities that fall under their customary jurisdiction. Its origins can be traced back to the doctrine of limited government and the theory of two laws, namely, an ordinary law and supreme law, the Constitution. Separation of powers emphatically outlines the boundaries within which the executive, legislative, and judiciary should function and one cannot interfere with the matters of the other.

The separation of powers principle refers to three types of governmental authorities:

i. A single person should not serve in more than one of the state’s three organs.

ii. No state organ should interfere with any other state organ.

iii. No one organ should perform the functions of any other organ.

HISTORICAL BACKGROUND

In India judicial review was exercised by courts even before the commencement of the Constitution. The Government of India Act 1935 provided Federal Courts with powers to review the decision which may act as a hindrance to the federal structure. The federal courts in India worked vigorously with wisdom and dignity and took various constitutional decisions. Article 13 of the Constitution provides for the scope of judicial review. As per this article, any legislation which takes away the rights of the citizens is ultra vires to the constitution.

The theory of separation of powers is traced back to Plato and Aristotle. Later French Philosopher John Bodin and British politician Locke expressed their views about the theory of separation of powers. In his work “Esprit des Lois” (The Spirit Of Laws), published in 1785, Montesquieu was the first to express this notion scientifically, properly, and methodically.

PRESENT SCENARIO

Following the end of the emergency in India, the Supreme Court was chastised for issuing a series of rulings that were seen by many as violating Indian citizens’ basic human rights, and it changed the way it saw the constitution. The Supreme Court stated that all legislation, whether significant modifications to the Constitution or the creation of schemes and bye-laws of municipal authorities that influence a citizen’s life, is subject to judicial review.

In our Constitution, there are no specific provisions regarding the doctrine of separation of powers. However, the constitution has some directive principles, such as Parts IV and V, and Article 50, which separates the judiciary from the executive. The state shall take steps to separate the judiciary from the executive in the public interest. There is no formal and dogmatic separation of powers except for the state’s services, and there is no formal and dogmatic division of powers except for this.

In India, Separation of Powers is not exactly as it is portrayed by its propounder. Judiciary plays a vital role as it acts in furtherance of the powers vested in it and interferes with the other two organs. The Supreme Court has the authority under Articles 142 and 145 of our constitution to declare void legislation approved by the legislature and executive acts if they contravene any provision of the constitution or a law passed by the legislature in the case of executive operations. Even Parliament’s power to modify the constitution is subject to the Court’s review. If an amendment alters the fundamental structure of the constitution, the Court has the authority to declare it void. On many occasions, judges have issued policy directives to the Parliament.

OPINIONS AND SUGGESTIONS

The efficiency of the organs of the state increased due to the separation of works hence time consumption decreased. Since the experts will handle the matters of their parts, the degree of purity and correctness increases. There is the division of work and hence the division of skill and labor occurs. Judicial review of the actions by the organs put up a mechanism where they will be held accountable thus limiting the scope for arbitrariness.

Separation of Powers and Judicial review are contradicting subjects and also they are intertwined by their nature. As one tries to give autonomy the other tries to take away the autonomy. Therefore a system where judicial review and separation of power coexist should be created where there will be minimal judicial review and it should be provided only when there is anything unconstitutional that takes away the fundamental rights of the citizens.

CONCLUSION

Judicial review and separation of powers of various organs of the government is a necessity for the smooth functioning of a democracy. A democratic country cannot grow when these two principles are absent. The inherent power of the judiciary to correct the wrongs of the other organs maintains a system of check and balance which is essential. But boundaries are crossed as the judiciary might take into its hand several acts of the executive or legislative even when they are constitutional and for the public interest. Thus in India, it is false to say that there is a fully functioning theory of separation of power rather it is partial and judicial review is also limited as every act of other organs if put to judicial scrutiny then there will not be any governance rather anarchy.

ENDNOTES