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The Three-Judge Bench of the Supreme Court has in a recent case of Government of India vs Vedanta Ltd and Others., passed a Judgment dated 16-09-2020 and reaffirmed the law governing #recognition and read more
The Three-Judge Bench of the Supreme Court has in a recent case of Government of India vs Vedanta Ltd and Others., passed a Judgment dated 16-09-2020 and reaffirmed the law governing #recognition and #enforcement of #foreignawards in India.
To read more, please visit the link below:
#supremecourt #recognition #enforcement #execution #award #foreignaward #arbitration
The three Judges Bench of the Supreme Court in the case of Trustees of H.C. Dhanda Trust v. State of Madhya Pradesh & Ors. [Civil Appeal Nos. 3195-319 6 of 2020], vide its Judgment dated 17.09.2020 read more
The three Judges Bench of the Supreme Court in the case of Trustees of H.C. Dhanda Trust v. State of Madhya Pradesh & Ors. [Civil Appeal Nos. 3195-319 6 of 2020], vide its Judgment dated 17.09.2020 modified the Order of the Collector of Stamps that imposed a penalty which was 10 (Ten) times of deficient #stampduty.
To read more, please visit the link below:
#stampduty #penalty #supremecourt #deficient
Analysis of Death Penalty in India: An overviewDeath Penalty or a Death Sentence refers to a punishment given to an offender by a court of law for committing a grievous offence. The key ingredient of read more
Analysis of
Death Penalty in India: An overview
Death
Penalty or a Death Sentence refers to a punishment given to an offender by a
court of law for committing a grievous offence. The key ingredient of Death
Penalty is that it must be awarded in accordance with law by a competent court
and it should not be confused with extra-judicial killings. The provision for
Death Penalty is envisaged in Section-53 of the Indian
Penal Code 1860. Indian laws award death penalty for various offences
such as Criminal Conspiracy (Section-120B), waging or attempting to
wage war against Government of India (Section-121),
Dacoity with murder (Section-396) and murder (Section-302).
Many
states around the world have abolished the death penalty by stating that it was
unconstitutional. In India the penalty is still awarded on a ‘rarest of rare’ basis and is conducted
by hanging the accused till death. There is no definition of ‘rarest of rare’ but the Supreme Court of
India has said that it refers to the commission of a grievous offence that too
in an extreme manner that shocks the society as a whole. In independent India,
first death sentence was awarded to Nathuram Godse and Narayan Apte for
assassinating Mahatma Gandhi and were hanged on 15th November, 1949.
Judicial Approach to Death Penalty
in India
Talking
about judicial decisions there has been a long running debate as to establish
whether death penalty is unconstitutional or not. In Jagmohan Singh v State of Uttar
Pradesh[1],
the SC upheld the constitutional validity of death penalty and stated that it
does not violate Articles-14, 19 and 21. The Apex court observed that
the judge makes a choice between life imprisonment and death penalty and does
so in accordance with the procedure laid down by law.
In
the case of Bachan Singh v State of Punjab[2], the
doctrine of ‘rarest of rare’ was born
and in that regard the bench stated that it does not violate Article-19
or Article-21
of the Constitution. It was laid down that while deciding such cases, the court
has to look into various factors such as the aggravating or mitigating factors,
age of accused, criminal history, whether the particular act was done by
coercion and mental condition of the accused. In this particular case, Justice
Bhagwati who one of the judges in the bench dissented and held that death
penalty is in violation of Articles-21 and 19. In that regard
he stated, “Unfettered and uncharted discretion conferred on any
authority, even if it be the judiciary, throws the door open for arbitrariness,
for after all a judge does not cease to be a human being subject to human
limitations when he puts on the judicial robe and the nature of the judicial
process being what it is, it cannot be entirely free from judicial subjectivism.”
Before the case of Mithu v State of Punjab,[3] death sentence was mandatory under Section-303 IPC wherein
it was awarded if a person serving life sentence commits a murder. In this case
it was declared unconstitutional because the said provision was working on an
assumption that any individual who is serving life sentence and still kills
someone is beyond the stage of reformation which is one of the major purpose of
awarding punishment. Further, Section-303 mandated death sentence
to be awarded who inherently defeats the purpose of ‘rarest of rare’ doctrine.
In the case of Devender Pal Singh v State of NCT
of Delhi[4], the execution of the
accused who was a khalistani terrorist was being delay continuously which
caused the accused to develop schizophrenia. It was developed due to the mental
torture that was being imposed on the accused because of the continuous delay
of execution. It boiled down to the stage wherein the prisoner begged to the
jail authorities to carry out his execution. Acknowledging these facts, the SC
commuted his death sentence as life imprisonment due to the long delay in the
execution of death sentence.
The 2008 Mumbai attack which shocked the entire
nation was a night when almost all of India could not sleep and on the same
night Ajmal Kasab was caught and placed under arrest. Kasab was sentenced to
death by a trial court in Maharashtra and was upheld by Bombay High Court and
the Supreme Court. Kasab’s mercy petition was also rejected by the President.
Kasab was subsequently hanged on November 21st, 2012.
In
a recent and a case which got a huge amount of national attention was the Nirbhaya Gang Rape case. Around April,
2013 four of the six convicts were sentenced to death by a trial court in New
Delhi. This decision was upheld by the Delhi High Court on March 13, 2014 and
was also further upheld by the Supreme Court three years later on May 5, 2017. After
the confirmation of the Apex court, their execution was finally done on 20th
March, 2020 on 5:30 A.M inside the Tihar Jail in Delhi. During the long gaps
between the verdicts of the courts, their death sentences were continuously
challenged by the convicts counsel. The final warrant was issued on March 5th,
2020 which stated execution would happen 15 days later i.e. March 20th.
Conclusion
Debates
surrounding death penalty will continue as the arguments being made from both
sides can be termed valid. On one side it defeats the purpose of punishment
that is to reform an individual but on other side awarding death penalty
implies that an individual is not fit to live in the society which to an extent
is in terms with Article-21’s wordings. In the case of Santosh Kumar Bariyar v State of
Maharashtra[5],
previous death sentences rendered with regard to this case were
rendered per incuriam because they
were in violation of law laid down in Bachan Singh’s[6]
case. The individuals were accused of kidnapping, killing and chopping the body
of a man and then disposing the pieces in different places. The court held that
the crime was done with the sole motive of collecting money and the accused
were not professional criminals with a criminal record and hence there was hope
for rehabilitation. Subsequently the sentence was commuted to life imprisonment.
As
many states around the world have completely abolished death penalties, but in
India its future remains uncertain whether it will be abolished or not. One
argument against the death penalty that can be made is that it takes a lot of
time and when it does take its time, it only worsens the situation of the
accused as mentioned in the Santosh Kumar case[7].
Lawmakers and judiciary has to decide that factors such as public
sentiments could be considered or not while awarding death penalty as they also
play an important role as was seen in Nirbhaya’s
case. It is also worth noting that a high number of death sentences are
commuted into life imprisonments and as per a report by National Law University
Delhi between 2000 and 2014 trial courts in India have sentenced 1810 people to
death and more than half of that number was commuted to life imprisonment.
In a plea, filed by Andhra Pradesh government, challenging the AP High Court’s judgement of striking down the state government’s order to make English language the medium of instruction in State Government read more
In
a plea, filed by Andhra Pradesh government, challenging the AP High Court’s
judgement of striking down the state government’s order to make English language the medium of instruction
in State Government Schools from classes I to IV, starting from the ongoing
academic session 2020-2021.Recently, Supreme Court of India refused to stay
AP High Court’s judgement.
The
Court has also asked to the guardians’ organization to file an affidavit &
will recognize the application for stay (interim relief) on the decision after
caveators get an opportunity to file their response (affidavit) within 14 days.
Heading
a 3- Judge bench including Justice Indu
Malhotra and K.M. Joseph, Justice D Y Chandrachud noticed that Section 29(2)(f) of the RTE (Right to
Education) Act, says that the medium of instruction shall, “as far as it is
applicable”, be in a child’s mother tongue and it seems that the High
Court took this into account.
However,
the Bench issued a notice to the petitioner on the AP government’s plea
challenging the High Court’s April 15 judgement.
Appearing
on the behalf of State, K V Viswanathan, a Senior Advocate, requested for stay
on the High Court order along with issuance of notice, calling the AP
government’s decision a “progressive measure”. He said the Right to Education (RTE) Act doesn’t stop English medium
instruction in schools and there is no any limitation on private schools or
minority institutions from having TELUGU
as a medium. He also said, TELUGU will still be taught in schools as a
Language.
Mr
Viswanathan further added, India is an amazing country with diversity. Without
English we Indians, will be in islands. It would bring an “irreversible harm”
if the decision can’t be taken forward, as our upcoming generations will not be
able to speak fluent English.
Opposing
the argument, Mr Gopal Sankarnarayanan a Senior Advocate, who appeared on the
behalf of petitioners who has filed a Caveat application, said - the question
is one of guardian’s choice. He said, the State Government had taken away the
consent of Telugu- Speaking People
to send their children to a Telugu
Medium School.
He
further said, it is illogical that Private Schools & Minority Schools can
teach both languages, however Government Schools will only give lessons in
English language.
After
hearing the arguments, the Supreme Court listed the matter for next hearing on
September 25.
The 3 Judge Bench of the #SupremeCourt has in a recent case of Abhilasha vs Parkash and Others passed a Judgment dated 15-09-2020 and reiterated the following principles of #maintenance of #wife, read more
The 3 Judge Bench of the #SupremeCourt has in a recent case of Abhilasha vs Parkash and Others passed a Judgment dated 15-09-2020 and reiterated the following principles of #maintenance of #wife, #children and #parents under Hindu Adoptions and Maintenance Act, 1956 (the Act) and the Criminal Procedure Code 1973 (#CrPC)
To read more, please visit the link below:
#maintenance #family #hindu #supremecourt #crpc
Hindu Succession ActQuestion of Law1. Whether excluding daughter from the entitlement in HUF is valid?2. Whether unmarried daughter and married read more
Question of Law
1. Whether
excluding daughter from the entitlement in HUF is valid?
2. Whether
unmarried daughter and married daughter have different titles in HUF?
3. Whether
the married daughter loses her privileges after marriage?
4. Whether
the law made in this behalf serves the objective of the legislation?
Court Observation
The
Supreme Court consisting of the Division Bench of Three Judges before whom the
matter was raised on some question of law with regards to The Hindu Succession
Act. The Division bench after considering the matter filed before the court
authored a 121-page judgment in which such issues were dealt at length, the
Solicitor General of India at length while submitting the arguments presented
various precedents to present the status of the daughter with regards Hindu
Succession Act and landmark judgments decided by the court. The court to decide
the matter following explanation with the angle of law has been put forth by
the court:
1. Understanding
the school of law that regulates Hindu law
The Two laws that
basically regulate the law in the country like India are the two school of
thought which are known as the Mitakshara School of Law and the Dayabgha School
of Law. The Mitakshara applies to almost every part of the country except the
part of Bengal. The rules that were enunciated to govern the practices in
Maharashtra was Maharashtra School that prevailed in the North India whereas
the city/island of Mumbai was regulated by the Bombay School in western India.
In the country with the variety of communities as descendants of various
religious, sometimes also understood as caste it was in the Southern region
such practices were regulated by the Marumakkatayam, Aliyasantana and Namburdiri
system of law.
2. HUF
(Hindu Undivided Family)
Ascendants and
descendants connected to each other by birth in one single-family which
continues such lineage for a long period of time practices, professing and
propagating Hindu as their religion is called a Joint Hindu Family. In the
business side of the matter, a Joint Hindu Family is also termed as Hindu
Undivided Family which is a form of business organization wherein the Joint
Hindu Family run business with appointing one-person male of the family who is
the eldest in the family to be Karta (sole decision-maker of the business) and
coparcener (supporter or worker in the business). The rights of any person to
be in the organization arise only if you the person take the birth in the Joint
Hindu Family. A Joint Hindu Family holds the assets of the business jointly
under the name of the family. The understanding of the law that governs the HUF
is that after there is any severance of the assets of the business, the family
ceases to be called a Joint Hindu Family. The court in the matter understands
and concluded thatthere exist any mere separation of the worship or separation
at the food tables such separation will not hold the same understanding as to
the separation of the HUF.
3. Hindu
Succession Act before the 2005 Amendment
The understanding that
was explained needs a thorough revision of the provision of the Hindu
Succession Act prior to the year 2005, wherein the courts understand that there
exists no logical but firm emphasis to incorporate and appropriate the assets
among the male membersof the family. The family assets though not literally but
theoretically were apportioned between the male members of the family such
ascendants like father, grandfather, great grandfather and so on and in the
descendant's such son, grandson and so on. The law is understood to provide
such lineal descendants up to the third generation, and the fourth generation
would rise to such right after the death of the first generation. Nothing but
the birth in the family accrues such rights to any person such was the understanding
with regards to the confinement. The person taking birth in the Joint Hindu
Family inherits the coparcenary rights from the father, grandfather and/or
great grandfather. Any person being a coparcener in the HUF holding any
property from any other mean and not from the inheritance from the member of
the HUF will not be treated as his property in coparcenary right. No person can
claim as a single individual right over any property belonging to the Joint
Hindu Family every person belonging to the family and is in coparcenary relationship
to the HUF hold the asset of the HUF jointly. With regards to any other option
of entitlement as coparcener is by way of adoption,the court held that it is
the only way that is understood other than the primary reason of inheritance
that exists as per the rule of law and the customs that support the reasoning
of law. The Court with respect to the position of the women in the Joint Hindu
Family understand that there exist a relationship of women, but such relation
due different perception was limited to the entitlement of family member but
not as a coparcener. The court also further explains that as the rule of law
prevails over any conclusion out customs or traditions and coparcenary is the
creation of law and as far as the law is concerned the regulation that governs
the partition of the Hindu Undivided Family such can only be demanded by any
person in the capacity of a coparcener. The test for the partition of the Joint
Hindu Family can only be concluded with the person being coparcener or not
and/or such person has exercised the right for partition.
4. Obstructed
and Unobstructed Heritage
The terms havebeen
definedin the school of thoughts/law which govern the actions and regulated the
practices of heritage in the Hindu laws, the Mitakshara School of the law
states that unobstructed heritage rights also are known as “apratibandha daya”
and the obstructed rights is known as “sapratibandha daya”. The rights have
their defined way in determining the privileges and rules of their devolution
and apportionment. As the unobstructed rights state that any right accrued to
any person by way of nothing else than by birth it should be obstructed by an
action, it should accrue from the start and continue until the apportionment or
his death whichever is earlier. The unobstructed rights mean any person born in
the family has a birthright in the property of the Joint Hindu Family at the
earliest day of birth. An obstructed right is rather an indirect rule of
receiving such privilege which is directly connected to the birth of the person,
and obstructed right arises when a person who is a coparcener in the Joint
Hindu Family is dead or died by any reason as such, and there exists no male
issue after the death of the coparcener and when the person as remainder
receive such right.
The obstructed right
suggests that there exist an obstruction because of which such right or
privilege per say has to be withheld in this case it is obstructed by the
existence of the male coparcener. It is the death of the coparcener when the
obstructed rights in come in existence. The Court considered a brief overview
of the school of law which governs and regulates practices of the inheritance,
and the parallel history of the Joint Hindu Family and the focuses its
attention on the provisions of the Hindu Succession Act, 1956. The Court finds
it important for any person to understand the matter needs a fair overview of
the Mitakshara School of thought to further create a basis of for deciding and
understanding the law.
Supreme
Court Stand
The Supreme Court opines that it
was fair for the court to consider the law governing the Hindu Succession
before directing anything in the above matter. The court further explains the
Hindu Succession Act, 1956 pre-amendment scenario.
The
Supreme Court herein mentioned that as the law governs the act of Human in the
civilization or as the modern goes society it does not mean that the law is
correct in each sense and phase of life, as the changing times' models of the
life changes and new policy which better suits the society needs to be implemented
and so for all those reasons which penultimate goal to secure, pursue and
decide in favour of justice is resort to be taken and thus benefits all. As per
the Hindu Succession Act, 1956 wherein section 6 dealt with the devolution of
rights in the coparcenary interest in the Joint Hindu Family assets which are
governed by the Mitakshara School of Law. In the Act, the important thing is to
consider that section 6 of the Act excludes the rule of succession, which
concerns to Mitakshara coparcenary property. Any person who interests in the
property existed, and he dies after the existence of the Act of 1956 his
interest in the property will be dealt with the rules and regulation and/or
principles of survivorship among the remaining members of the coparcenary who
also can be called as surviving members of the coparcenary.
In
the year after 2005, various matters were filed, and the decision was made in
behalf of the male child or male member of the family the discussion was held
on the various occasion in different states considering the status of women in33
the world and with due consideration to the equal status and rights, and
liabilities of the women was given priority and many states in the logical
conclusion decided to make amendment in the Hindu Succession Act, 1956 and such
amendment was made and complied. The extension of the rights of women was
recognized in the Mitakshara School of law regarding the coparcenary in the
Joint Hindu Family. In the Several States such as Andhra Pradesh, Tamil Nadu,
Karnataka and Maharashtra the rights of women were extended to the equal status
as to men in the Joint Hindu Family as a coparcener in the property. In
Karnataka, the insertion in the following act was made in the year 1994 by
amendment as section 6A pursuing to section 23 of the Karnataka Act, 1994. In
the year 1985 the amendment was made in the state of Andhra Pradesh, and four
years after the amendment in Andhra Pradesh the amendment was made in the State
of Tamil Nadu in 1989. In the year 1994, the State of Maharashtra made the
amendment by making an insertion by way addition under 29A in the Hindu
Succession Act, 1956 as the notification came in very late, but the amendment
was also proposed by Kerala in the year 1975. As the amendment was agreed and
accepted in the law of succession in very few states, the inheritance was badly
affected in consideration of women’s rights.
The
Supreme Court of India, in its explanation, stated that there exists human
relationship which is to be considered for inheritance or any such right of a coparcener.
In the year 2005, the vast number of litigants with a new approach and new
interpretation to the meaning of the provisions of the coparcener states that
there should be an equal recognition to men and women while such position is
concerned. The section 6 of the Hindu Succession Act will be dealt and
interpreted differently from the time the Amendment Act of 2005 comes into
effect, and it states that the daughter as a child to the person who owns the
assets in the property of the Joint Hindu Family should be treated in the same
way as a child born to such person as a son.
Further,
section 6(1)(a) states that there exists no difference between the daughter and
the son, which if exist, is supported by law. Section 6 (1) (a) of the Act does
not define the gender of the issue while it dies to say that any person by
taking birth in the family is eligible for the position of the coparcener any even
if the neonate is a girl can take this position or if so is eligible for such
position if she had been a male. In the Act, while layperson makes a plain
reading understand that it confers the same rights to female and male in the
context of inheritance. The Court realizes the effect of the amendment will be
brought in practices from the day this judgment is passed,but there has been
injustice caused to many litigants who have filed the suit against not just the
Supreme Court but many High Court in different states wherein the amendment act
has not been passed by or approved by the State Government, and the same
provisions of the Act havebeen complied with following the inequality to which
justice never approves and/or permits if exists, so in the regards with the
objective to make the wrong done right this amendment will have the retroactive
effect, and all the cases wherein the right of coparcenary which has been
denied to all the females will be reversed and applied but in such situation
that the other facts may comply with the decision understood and applied with appropriate
provision but just the facts of gender inequality will be dealt with this understanding.
There also remains one question as regards to the death of any person who dies
after the year of 2005 when the Amendment Act confirms the status of the
provisions therein, the Court states as far as the section 6(3) of the Act is concernedif
any person belonging to the Joint Hindu Family dies then such apportionment of
the property will be passed by the testamentary or intestate succession and
nothing shall be permitted to apportioned by the survivorship. The Court
further states that there existed partitioned by way division of shares among
the members of the Joint Hindu Family and should be divided and allotted and
apportioned if there or happens any partition after the death of such person as
concerned in the Act. In this partition, as mentioned earlier, there should not
exist any gender inequality; the daughter should be allotted an equal share in
the property of the father if there be a partition.
There
as stated exists the coparcenary right up to the third generation of lineal
ascendants or descendants where in a situation the daughter is deceased at the
time such partition her son and daughter will have the same rights as it was
the son of the deceased son of the father who died up to three generations. The
litigation, though, has brought a change in a delayed manner, but such change
has brought itself with a vast area to be covered and provided for new thinking
and relinquishment old idea and beliefs. The Act now states the apportionment
by survivorship is completely have to go away as it destroyed the process to
achieve the objective of the Act.
Liability on Female Coparceners
The
Supreme Court, while explaining the concept of equality emphasized on the facts
the equality if is intended to be brought home, will have to bringin its
entirety there cannot exist equality where the privileges are provided but
evaded from the act of responsibility and/or liability attached to such
privileges. Section 6(4) of the Act makes the daughter liable in the same way
as Son will if at all, such liability arises.
The
Hindu Law with this presumption of equality Will has to be stated with the
interpretation that as any debt incurring on the Joint Hindu Family was repaid
of settles or discharged by the son, grandson and/ or great-grandson likewise
the daughter herein will have to discharge such debt as same if she was a son.
The
Court states that in deciding the matter, we state that we recognize the issues
but also the proviso id read by a plain meaning provides a relief for all the
partition commenced and concluded before the 20th December 2004
wherein the court states that only the partition that was made by the execution
of the partition deed registered under the Indian Registration Act, 1908 and
all such partitions decreed by the Court will be considered for such relief.
The
issues that werenot resolved earlier is that the decisions in the controversial
matter of Prakash v/s Phulavati it raised a question before the Court whether
the requirement of the father alive at the time of such partition or at the
time when such Amendment Act of 2005 is mandatory or not whereas no established
foundation has been found where to answer in the question in any other than it
can be that is no mandatory requirement of the father to be alive in the year
of Amendment Act if any time the father of the daughter dies, and there occurs
a partition the daughter will be allotted an equal share in the property of the
father. The Court disagrees with the opinion of the bench in the case of the
Prakash v/s Phulavati.
Conclusion
In
India as succession is one of the common topics of discussion as the long
history manifest the family and generational hierarchy in the country. The
Country though were practicing the succession in most the conventional way
appeared appropriate with the tradition followed by the royal families, but as
the advance of understanding and maturity in the legal sector it was ruled as
the guidelines issued which was enacted as the Act in the country by the
legislature in the year 1956 known as the Hindu Succession Act, 1956. The
understanding formed under the enacted Act was though governed with better
perception than ever before but such rule of law if wishes to sustain the
changes, need to be modified to the extent it satisfies the modern world
expectation and so the matter has taken as priority by the Supreme Court to
provide the way ahead for this Act to have a future and suffice the objective
sought by the maker of the Law. The Act lacks the important aspects of modern
world which is equality between male and female, the rights and privileges
though not exclusive but includes liability was tilted towards the male in the
family in the Joint Hindu Family. The Court has changed the perception of the
Act and provides equal opportunity to male and female in the Joint Hindu Family
with regards to liabilities and assets of the Hindu Undivided Family. The
Court also makes such act retroactive and further serves the objective of the
law maker and also makes it sustainable in today’s world.
The author of this blog/Article
is Kishan Dutt Kalaskar, a Retired Judge and practising advocate
having an experience of 35+ years in handling different legal matters. He
has prepared and got published Head Notes for more than 10,000 Judgments
of the Supreme Court and High Courts in
different Law Journals. From his
experience he wants to share this beneficial information for the individuals
having any issues with respect to their related matters .
Author :
Kishan Dutt Kalaskar
Advocate (Retired Judge)
No.74, 1st Floor, 6th
Cross,
Malleswaram,
Bengaluru-560003
Mob: 9686971935
www.kishanretiredjudge.com
The Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the #NDPS Act, #prohibits a person from the production/manufacturing/cultivation, possession, sale, purchase, transport, read more
The Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the #NDPS Act, #prohibits a person from the production/manufacturing/cultivation, possession, sale, purchase, transport, storage, and/or consumption of any #narcoticdrug or #psychotropicsubstance.
To read more, please visit the link below:
#drugs #narcotics #vehicle #ownership #supremecourt
The Supreme Court has in a recent case of Pravin Kumar vs Union of India and others, passed a Judgment dated 10-09-2020 and reiterated that the #standards of #proof in #civil and #criminal #proceedings read more
The Supreme Court has in a recent case of Pravin Kumar vs Union of India and others, passed a Judgment dated 10-09-2020 and reiterated that the #standards of #proof in #civil and #criminal #proceedings may be different from each other.
To read more, please visit the link below:
#proof #standard #evidence #criminalproceeding #supremecourt #highcourt
A duty of a police man is one of the most important functions, not only in India but across the world. A police officer is made to take an oath on the first day of joining to protect the country and the read more
A duty of a police man is one of the most important functions, not only in India but across the world. A police officer is made to take an oath on the first day of joining to protect the country and the citizens in his best capacity. The sole duty of police officers is to protect the law and order of the country.
But what happens when the protector becomes the antagonist!? The entire system of truth and justice gets shaken. The foundation of righteousness is degraded.
Police brutality or fake encounters have become a common phenomenon in India. This particular article chiefly focuses upon the powers of police, misuse of those powers, police brutality, and bribe and also how these activities lead to exploitation of citizens in general.
DEFINITION OF POLICE:
There is no particular definition of Police given in Criminal Procedure Code,1973 as well as in The Police Act, 1881. The police are a designated body of persons appointed by the State with the purpose of enforcing the law, maintaining protection, health and possession of people and preventing crime and civil disorder. The concept is most generally identified with the security forces of a sovereign State that are empowered to exercise the policing powers of that State within a given legal or territorial area of responsibility.
WHAT IS POLICE BRUTALITY?
Police brutality means violation of civil rights of an individual by police officials using excessive force. Excessive force includes bullying, physical or verbal harassment, physical or mental injury, property damage and illegal encounter. Forcing an individual for bribe and unlawful detention are also a form of police brutality.
VIOLATION OF HUMAN RIGHTS:
Police brutality hampers human rights in every manner. There are many police officials who wrongly use their powers on public without any authority. There are many police officials who manipulate the public in such a way that the individuals do not have an option but to act according to the police. According to Article 3 and 5 of Universal Declaration of Human Rights, every individual has a right to life, liberty and security and any individual shall not be subjected to any type of torture cruelty or unnecessary punishment. According to Article 7 of International Covenant On Civil and Political Rights everyone has the right to personal freedom and protection. Below are a few examples depicting how police brutality results in violation of human rights :
To stop this police brutality and to protect human rights, the Judicial system has laid down few rights in favour of the citizens, which are as follows:
RIGHTS OF AN ACCUSED UNDER THE CONSTITUTION OF INDIA
The Constitution of India has guaranteed a few rights for the person arrested, namely:
It is very important for an accused to know the grounds of his/her arrest, in order for him/her to whether the arrest is arbitrary or not and also he/she can prepare for defence. This particular right is mentioned under Article 22 of Constitution of India. Also under Article 22 an accused person has a right to consult a lawyer after his/her arrest. Right to produce before a magistrate is one of the most important right. According to Article 22(2) of Constitution, if the police officials fail to bring the accused before a magistrate within 24 hours of arrest then the police official will be held liable under Section 340 of Indian Penal Code, 1860 for wrongful detention.
CONFESSION MADE TO POLICE IS NOT ADMISSIBLE IN COURT
Section 25 of The Indian Evidence Act, 1872 clearly states that a confession made to a police officer is not to be proved against any person accused of any offence. The main reason why a confession made to a police officer is excluded is only because most of the times those confessions are involuntary and coerced. This provision makes it evident that if confessions made to police were allowed to be proved as evidence then it would have created a gateway for the police officials to extract the confession from torture and coercion and such situation would lead to unfair trial.
The provisions discussed above make it clear that nothing enables the police to take laws in their hands. Every citizen has a right to be heard, fair trial and to be presented before the court under Article 14 of the Constitution of India. Hence, in order to restore the faith of people in police, stringent laws should be made against the officers who go against the law to create fake encounters or punish the accused(s) by assuming themselves to be the supreme authority of law. Security of the individuals and grievances must be attended by the police officials. The complaints received by the Human Rights Commission and stories which are published in the media, clearly show us how the police officials violate the law and take illegal or fake actions upon individuals and till the time these police officers are not penalised for taking law for granted, the public in general is going to suffer.
Introduction In today's times, discussing human rights feels excellent as long as we foreground how we can secure what needs the most protection: our lives and our dignity. Tolerating that we experience read more
Introduction
In today's times, discussing human rights feels excellent as long as we foreground how we can secure what needs the most protection: our lives and our dignity. Tolerating that we experience in daily life where most human rights get disregarded is a harsh pill to swallow, yet considerably more troublesome it is for us to deal with the thought that examples exist to these human rights violations. Impunity is understood as a systematic exemption from punishment and denial of redress works as a double betrayal of our sense of justice: a violation has occurred, which is not yet rectified.
In the politically charged environment of the human rights talk in India, the affirmation that wrongs have been committed and needs to be remedied is hard to come by. Generally proof on human rights misuse is barely revealed in the mainstream media. The most grave from human rights infringement found to have happened includes people vanishing, getting sexually assaulted, getting tormented in hands of the authority. When inquired about these things these assaults are either clarified as "deviations" or approved in light of a legitimate concern for "more noteworthy causes."
Hence in an attempt to understand this similar aspect, this article will discuss the Landscapes of fear by understanding the meaning of impunity in detail.
Meaning of Impunity
In human rights circles, impunity means the "freedom of state or non-state actors to inflict harm, loss, and violation without fear of consequence. The UN Commission for Human Rights (2005) puts it, the "impossibility, de jure or de facto, of bringing the perpetrators of violations to account and rendering them answerable." To any such inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to make reparations to their victim." Definitions set the stage for reflection and action, but the listing and linking of keywords hardly informs an organic understanding of the broader concept. Impunity is not just a legal term; it works at multiple, mutually reinforcing levels.
The uncompromising narratives by the state and non-state forces produce a state of impunity. Both not only can inflict violence, but they also project brutality, justifying their course of action. The rule comes down with a heavy hand on those who challenge its legitimacy to protect "national security." On the other hand, non-state forces justify violence to obtain their "inalienable" right to self-determination. With both protagonists following the same logic but striving in opposite directions, the conflict inevitably looks like a fight to the finish. But for some reason, this has not quite happened. Instead, over the last two decades, a strange politics of violence has emerged, making the armed conflict murky and complicated. The contestation has not only become multi-cornered but takes different shapes, not to mention a violent form. Even the violation of human rights has become more complex.
Regional Pattern of Impunity
The root causes of conflict vary from region to region. So do the manifestations of violence; hence it is important to understand the various types of abuse carried out against human life by the authorities in the name of state impunity.
Constant surge in Custodial Death numbers – Need for Reforms
The advent of Custodial death and torture has peaked in its crisis, as reported by the National Campaign Against Torture, which states that 1,731 persons died in custody in the year 2019 alone, estimating five deaths every day of the year. These constituted 1,606 deaths in judicial custody and 117 deaths in police custody in total . The police's maltreatment of law and authority is certifiably not a challenging subject as police are regularly expected to utilize violence to counter crimes. There is an egregious presumption that police officers are bound to use counter-violence to incapacitate lawbreakers to keep them from further hurting innocent residents. This assumption has prompted a rotting of the set of principles among officials driving numerous to submit rotting decay of the code of conduct among officers leading many to commit terrible breaches of such authority to assert their dominance over the public
There is a rising need to bring in reforms in this aspect by introducing a check and balance system that ensure there is no abuse of power
Inflicting Torture/Grievous harm - A Goof form of Reform ?
In India, torture remains an entrenched and often routine law- enforcement strategy, despite India’s status as the world’s largest democracy. In the name of investigating crimes, extracting confessions, and punishing perpetrators, torture is inflicted upon the accused and bona fide petitioners, complainants, informants, and innocent bystanders. Frequent police practices include assault, physical abuse, custodial death, rape, threats, psychological humiliation, and deprivation of food, water, sleep, and medical attention. Torture is also inflicted on women and girls in the form of custodial rape, molestation, and other forms of sexual harassment.
The NPPTI ’s fact-finding data suggest that 1.8 million people fall victim to police torture each year in India. Many victims fear further prosecution or retribution, and so suffer in silence.
The Challenges in proving Sexual violence
Impunity suffered on the ground by women and men who survive sexual violence and their families who continue to struggle for justice in the unfortunate event of the victims' dying. There is a blurring of the acknowledgment of sexual violence within the perpetration of torture wherein other aspects of pain obscure it. Notably, these cases of sexual violence and torture were perpetrated as part of the interrogation of suspect's families. Still, because they were not the first acts of violation, they seem to lie buried in the narratives generally collected. In the Mathura Rape case, the Supreme Court’sdenied the charge of custodial rape by a policeman because there were no marks to suggest that the woman was raped because there were no visible marks of resistance. Thus, they are making it clear that the men and women who refer to sexual violence as part of torture and interrogation of suspects would fall into this clichéd category of the police and the courts.
Understanding the Networks of Complexity
Most state terror victims do not visualize their perpetrators as abstract representatives of institutions meant to protect law and order. Instead, those who survived the arbitrary power over them remember the faces and persons of the people who were responsible for it. The familiarity between victim and perpetrator, between powerless and powerful, friend and foe, appears fleetingly in detailed discussion on impunity. Where litigation is involved, familiarity is either highlighted or underplayed by the parties involved in the case. In any case, the outcomes of such cases are almost always predetermined by legal jurisprudence. However, when there is no possibility of institutional redress, or when familiarity is used as an instrument to further a state policy, the outcomes are both tragic and uncanny. When governments decide on a course of action, especially on matters related to combating insurgency, its considerations favor using local knowledge to reshape political conditions. Hence, there is still an accelerated output of experience in the form of books, articles, and broadcasted debates-about a particular place that has been corralled by the government.
What are the Minimum Interrogation Standards
Interrogation is questioning by public official where there is suspicion that a person is involved in an offense. When such interrogations in carried on then some specific points have to be born in mind by the police:-
Conclusion
The violence of contestation has reached a point where it shows a state of multiple contestations and the intermingling of forces that may have very little in common. The crisis is about the faceless presence of violent forces. In most cases, the perpetrator of violence is unknown, but even if the perpetrators are identified, they carry multiple identities and play different roles. There is no clear distinction between friend and foe, no clarity about who to align with and who to fight.
There are multiple state forces—the military, the paramilitary and the police, each functioning within their hierarchy but operations being conducted under one unified command.
Is there a way out of the crisis? How can impunity be stopped? Can ordinary people shake themselves free of their state of indifference? The questions are many and varied. A two-track solution might work:
(a) legal intervention, and (b) bringing morality back into politics.
While the former demands specific changes in legislation and administrative procedures, the latter requires a difference in a political culture shaped by moral principles.
Altusried, Germany
Navi Mumbai, India
Asansol, India
Guwahati, India
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The following rules and restrictions apply to REGISTERED USERS who use the SoOLEGAL.in "Add a Documents/ Advice" feature.
Using this feature for any purpose other than creating Documents/ Advice details pages is prohibited.
Any Documents/ Advice already in the SoOLEGAL.in catalogue which is not novel and/ or unique or has already been provided by any other Registered User which may give rise to Intellectual Property infringement of any other Registered User is prohibited.
Detail pages may not feature or contain Prohibited Content or .
The inclusion of any of the following information in detail page titles, descriptions, bullet points, or images is prohibited:
Information which is grossly harmful, harassing, blasphemous, defamatory, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, pornographic, obscene or offensive content or otherwise unlawful in any manner whatever.
Availability, price, condition, alternative ordering information (such as links to other websites for placing orders).
Reviews, quotes or testimonials.
Solicitations for positive customer reviews.
Advertisements, promotional material, or watermarks on images, photos or videos.
Time-sensitive information
Information which belongs to another person and to which the REGISTERED USER does not have any right to.
Information which infringes any patent, trademark, copyright or other proprietary rights.
Information which deceives or misleads the addressee about the origin of the messages or communicates any information which is grossly offensive or menacing in nature.
Information which threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.
Information containing software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource.
Information violating any law for the time being in force.
All Documents/ Advices should be appropriately and accurately classified to the most specific location available. Incorrectly classifying Documents/ Advices is prohibited.
Documents/ Advice titles, Documents/ Advice descriptions, and bullets must be clearly written and should assist the customer in understanding the Documents/ Advice. .
All Documents/ Advice images must meet SoOLEGAL general standards as well as any applicable category-specific image guidelines.
Using bad data (HTML, special characters */? etc.) in titles, descriptions, bullets and for any other attribute is prohibited.
Do not include HTML, DHTML, Java, scripts or other types of executables in your detail pages.
Prohibited REGISTERED USER Activities and Actions
SoOLEGAL.com REGISTERED USER Rules are established to maintain a transacting platform that is safe for buyers and fair for REGISTERED USERS. Failure to comply with the terms of the REGISTERED USER Rules can result in cancellation of listings, suspension from use of SoOLEGAL.in tools and reports, or the removal of transacting privileges.
Attempts to divert transactions or buyers: Any attempt to circumvent the established SoOLEGAL Transactions process or to divert SoOLEGAL users to another website or Transactions process is prohibited. Specifically, any advertisements, marketing messages (special offers) or "calls to action" that lead, prompt, or encourage SoOLEGALusers to leave the SoOLEGAL website are prohibited. Prohibited activities include the following:
The use of e-mail intended to divert customers away from the SoOLEGAL.com Transactions process.
Unauthorised & improper "Names": A REGISTERED USER's Name (identifying the REGISTERED USER's entity on SoOLEGAL.com) must be a name that: accurately identifies the REGISTERED USER; is not misleading: and the REGISTERED USER has the right to use (that is, the name cannot include the trademark of, or otherwise infringe on, any trademark or other intellectual property right of any person). Furthermore, a REGISTERED USER cannot use a name that contains an e-mail suffix such as .com, .net, .biz, and so on.
Unauthorised & improper invoicing: REGISTERED USERS must ensure that the tax invoice is raised in the name of the end customer who has placed an order with them through SoOLEGAL Payment Systems platform . The tax invoice should not mention SoOLEGAL as either a REGISTERED USER or a customer/buyer. Please note that all Documents/ Advices listed on SoOLEGAL.com are sold by the respective REGISTERED USERS to the end customers and SoOLEGAL is neither a buyer nor a REGISTERED USER in the transaction. REGISTERED USERS need to include the PAN/ Service Tax registration number in the invoice.
Inappropriate e-mail communications: All REGISTERED USER e-mail communications with buyers must be courteous, relevant and appropriate. Unsolicited e-mail communications with SoOLEGAL , e-mail communications other than as necessary and related customer service, and e-mails containing marketing communications of any kind (including within otherwise permitted communications) are prohibited.
Operating multiple REGISTERED USER accounts: Operating and maintaining multiple REGISTERED USER accounts is prohibited.
In your request, please provide an explanation of the legitimate business need for a second account.
Misuse of Search and Browse: When customers use SoOLEGAL's search engine and browse structure, they expect to find relevant and accurate results. To protect the customer experience, all Documents/ Advice-related information, including keywords and search terms, must comply with the guidelines provided under . Any attempt to manipulate the search and browse experience is prohibited.
Misuse
of the ratings, feedback or Documents/ Advice reviews: REGISTERED
USERS cannot submit abusive or inappropriate feedback entries,
coerce or threaten buyers into submitting feedback, submit
transaction feedback regarding them, or include personal information
about a transaction partner within a feedback entry. Furthermore,
any attempt to manipulate ratings of any REGISTERED USER is
prohibited. Any attempt to manipulate ratings, feedback, or
Documents/ Advice reviews is prohibited.
Reviews: Reviews
are important to the SoOLEGAL Platform, providing a forum for
feedback about Documents/ Advice and service details and reviewers'
experiences with Documents/ Advices and services –
positive
or negative. You may not write reviews for Documents/ Advices or
services that you have a financial interest in, including reviews
for Documents/ Advices or services that you or your competitors deal
with. Additionally, you may not provide compensation for a review
(including free or discounted Documents/ Advices). Review
solicitations that ask for only positive reviews or that offer
compensation are prohibited. You may not ask buyers to modify or
remove reviews.
Prohibited Content
REGISTERED USERS are expected to conduct proper research to ensure that the items posted to our website are in compliance with all applicable laws. If we determine that the content of a Documents/ Advice detail page or listing is prohibited, potentially illegal, or inappropriate, we may remove or alter it without prior notice. SoOLEGAL reserves the right to make judgments about whether or not content is appropriate.
The
following list of prohibited Documents/ Advices comprises two
sections: Prohibited Content and Intellectual Property
Violations.
Listing
prohibited content may result in the cancellation of your listings,
or the suspension or removal of your transacting privileges.
REGISTERED USERS are responsible for ensuring that the Documents/
Advices they offer are legal and authorised for Transaction or
re-Transaction.
If
we determine that the content of a Documents/ Advice detail page or
listing is prohibited, potentially illegal, or inappropriate, we may
remove or alter it without prior notice. SoOLEGAL reserves the right
to make judgments about whether or not content is appropriate.
Illegal and potentially illegal Documents/ Advices: Documents/ Advices sold on SoOLEGAL.in must adhere to all applicable laws. As REGISTERED USERS are legally liable for their actions and transactions, they must know the legal parameters surrounding any Documents/ Advice they display on our website.
Offensive material: SoOLEGAL reserves the right to determine the appropriateness of listings posted to our website.
Nudity: In general, images that portray nudity in a gratuitous or graphic manner are prohibited.
Items that infringe upon an individual's privacy. SoOLEGAL holds personal privacy in the highest regard. Therefore, items that infringe upon, or have potential to infringe upon, an individual's privacy are prohibited.
Intellectual Property Violations
Counterfeit merchandise: Documents/ Advices displayed on our website must be authentic. Any Documents/ Advice that has been illegally replicated, reproduced or manufactured is prohibited.
Books - Unauthorised copies of books are prohibited.
Movies - Unauthorised copies of movies in any format are prohibited. Unreleased/prereleased movies, screeners, trailers, unpublished and unauthorized film scripts (no ISBN number), electronic press kits, and unauthorised props are also prohibited.
Photos - Unauthorised copies of photos are prohibited.
Television Programs - Unauthorised copies of television Programs (including pay-per-view events), Programs never broadcast, unauthorised scripts, unauthorised props, and screeners are prohibited.
Transferred media. Media transferred from one format to another is prohibited. This includes but is not limited to: films converted from NTSC to Pal and Pal to NTSC, laserdisc to video, television to video, CD-ROM to cassette tape, from the Internet to any digital format, etc.
Promotional media: Promotional versions of media Documents/ Advices, including books (advance reading copies and uncorrected proofs), music, and videos (screeners) are prohibited. These Documents/ Advices are distributed for promotional consideration and generally are not authorized for Transaction.
Rights of Publicity: Celebrity images and/or the use of celebrity names cannot be used for commercial purposes without permission of a celebrity or their management. This includes Documents/ Advice endorsements and use of a celebrity's likeness on merchandise such as posters, mouse pads, clocks, image collections in digital format, and so on.
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