Category: Volume 1 Issue 2

POLITICAL FUNDING: ISSUES AND CHALLENGES: NAMITA JAIN

ISSN: 2581-8465

Author: Ms. Namita Jain, Head of Department – Law, JECRC University

POLITICAL FUNDING: ISSUES AND CHALLENGES

Abstract:

The issue of political funding in India has been a major source of corruption. After the Supreme Court’s judgment of 2002, there was a drastic change in the outlook and practice of receiving funds by political parties, however, there is a long way to go for India to be able to reach transparency in the system of funding political parties.

This research aims to cover the current scenario of political funding in India and the position after the introduction of electoral bonds. Discussing the current case by ADR in the Supreme Court, the researcher has analyzed the need for change and the negative impact of the introduction of electoral bonds and anonymity of donors in the funding of political parties.

The researcher has hence discussed the issues and challenges under the current practice and suggested methods and amendments ensuring transparency in the system and anti-corruption practices used by the parties and donors.

Keywords: Political parties, political funding, Association for Democratic Response, People’s Union for Civil Liberties, anonymous donors, elections, election campaigns

Introduction

Electioneering is a costly issue in each democratic nation which is an increasingly indispensable job in India. Cash strategic maneuvers in our electoral system prompt all round debasement and contribute most to the age of black money leading to a corrupted economy. In an election campaign, a large amount of money is spent by the candidate standing in elections. Lately, the election expenditure has expanded past any limits because of the idea of each political group to spend more than their opponents in the brawl. Such an exorbitant amount was not spent for election campaigns in 1952 as they have moved toward becoming today. Political pioneers and laborers thought of it as dishonest to work with a longing for any reward. Be that as it may, the situation currently has changed. Indian political elections are ending up progressively costlier and the hole between the costs brought about and lawfully allowed is expanding throughout the years. The spectators are viewing the framework that requires unimaginably tremendous expenditure accumulated through the questionable methods by political parties and their applicants.

The appropriation of arranging the economy with a lot of control and guidelines in India gave huge chances to corruption in politics and brought about an exploitative nexus between the appointive electoral politics and the business part of the nation. This is by all accounts happening even today with increasingly unfortunate results of a flood of black money with the political parties regardless of the changing economy actuated to the political arrangement of the nation.

The government has set out on another activity to stop corruption in the political funding which is the worst thing about the Indian constituent framework. Almost 70% to 80% of the assets to the political group is never detailed and they are gathered from obscure sources. The legislature has chosen to get a more prominent and transparent system in the funding of political parties. These incorporate capping funding by an anonymous benefactor/donor to Rs. 2000 from the prior limit of Rs. 20,000 and proposing electoral bonds. This interest for limiting the cash donations by the ananonymous donor was likewise made by the Election Commission as of late. This has not totally addressed the issue but is the commencement of positive development.

The elections in India are considered to be the largest democratic exercise which is during out to be expensive every election. In order to advertise, transport and campaign, political parties have been spending a large amount of money. The corporate donations are turning out to be the largest source of income for these parties which infuses black money in the economy. In 2008, the Central Information Commission permitted the Right to Information to be applicable on the income tax returns of the political parties; although the political parties do not practice under the same.

Understanding of political funding:

In a democracy, political power in principle, expected to express well-known endorsement, as estimated by results in elections. Practically speaking, this framework is frequently mutilated by various elements, budgetary power being the most unmistakable of them. Political parties regularly shape schemes not according to the wants of their voters but rather interests of their funders.

To lessen the impact of cash on electoral politics, nations make progress toward frameworks where political financing is straightforward with the goal that voters can see who is bankrolling their legislators and vote in like manner. Shockingly, India’s election financing framework has glaring loopholes, permitting people with money to stealthily impact political parties.

  1. Unknown sources of funds-

Under Indian law, the contributors of sums under Rs 20,000 permitted to be kept covered up legally, in the 2017 Union Budget plan, the leading government introduced an electoral bond[1] that even permitted expansive scale anonymous donations. Therefore, the greater part of all the pay of national parties in India is gotten from obscure and unknown sources.

As per a report of January 23 by the Association for Democratic Reforms, for six national parties, barring the Communist Party of India (Marxist), 53% of funding was from obscure sources in 2017-18. Non- anonymous donors contributed 36% of the income of the party. The rest 11% originated from other referred to sources, for example, closeout of advantages or participation charges.[2]

  1. Effect of Electoral Bonds-

While 51% of all questions reserves were donations beneath Rs 20,000 (which can be unknown according to the law), as much as 31% were made utilizing the new instrument of electoral bonds.[3]

An electoral bond is a promissory note like a certified receipt. It tends to be bought from State Bank of India branches in products of Rs 1,000, Rs 10,000, Rs 1 lakh, Rs 10 lakh, and Rs 1 crore. Uncommonly for an instrument that licenses such expansive sums, electoral bonds can be anonymous. People and organizations can make donations to a political party without having their identities uncovered to the Indian voter.

The electoral bonds permit huge scale donations which are anonymous to parties, supposedly, it is a critical step back in setting up a transparent arrangement of political funding. Former Chief Election Commissioner Navin Chawla has also called attention staring electoral bonds have really developed as a “greater method of camouflage” when it went to the utilization of black money in legislative issues.

Electoral bonds have been accessible since January 2018. Their effect was prompt, pushing up the offer of funds for national parties for 2017-’18. However, the Chief Election Commissioner A.K Joti stated that introduction of electoral bonds would not reduce the problems in cases of political funding and its transparency.

A case study discussing issues in Political Funding:

A Public Interest Litigation (PIL)[4] was filed by Association of Democratic Reforms (ADR) and Common Cause to challenge the amendments made in the Finance Act of 2016 and 2017 which led to funding into politics in an unrestricted and anonymous manner. The PIL’s main objective was to prohibit the cash donations which are made to political parties by Indian as well as foreign corporations.

On reviewing the Union Budget for 2017-18, there were issues with regard to political funding by making new recommendations in order to reduce the donation of cash to political parties. The cash donation was restricted to Rs 2000 per individual and electoral bonds were also introduced.

The new recommendations touched off a great deal of interest and high expectations, yet were brimming with escape clauses and inconsistencies. To begin with, while the correction to radically slice the cash donations to one-tenth was an appreciated move, despite everything it left enough space for ideological groups to abuse the altered arrangement, even at the expense of multiplying the number of donors. Further, while many hailed electoral bond as a progressive measure to infuse democratic processes with white money as it went to attain a cheque and computerized installments guaranteeing the identity of donors, its most glaring disappointment was obscurity. In spite of the fact that the plan is still better since the identity of donors is confidential, it scarcely progresses the reason for transparency. Hence, this amendment leads to obscurity and anonymity and does not enable a transparent scheme of funding to political parties.

The claim of the petitioners’ under the case was the funding to political parties in an uncontrolled manner, after the Finance Act 2017, being relied on the fact that almost 89% of the total donations were made by corporate funding, in the years of 2012 to 2016. It is broadly understood that private business charges an expansive bit of donating to parties and on events private business bankroll whole election campaigns in India. Given the way that states in India hold gigantic command over the economy and administrative approaches, they can’t stand to disappoint the political bosses. This leads to extensive corruption and donation by corporate in India and foreign entities enable over the table deals as opposed to under the table dealing with respect to black money.

Although such issues are faced in different countries like the United States as well, such donations are made in a legal manner and every such transaction is transparent. In India, however, illicit or illegal methods are used to attain such actions. Hence, the concept of electoral bond with the provision of remaining anonymous is creating such corporate donations to be unrestrictive in nature, which is being claimed by the petitioners under this PIL.

The Finance Bill of 2016 also allows donations to be made to political parties under the Foreign Contribution (Regulation) Act, 2010, leading to the increase in private money donation and influence of entities from abroad.[5] This petition hereby gives an opportunity for the Supreme Court to look into the laws of election and the reforms concerned with them.

Major electoral reforms have been brought forth by way of judicial interventions, including disqualification of convicted MLAs[6], the introduction of the option of NOTA[7] (none of the above), etc.

In every one of these years, political parties have set up solid protection from constituent changes, despite naming councils and commissions now and again. There is a long history of deferral, subterfuge, weakening by progressive governments at the Center, and there is an astounding unanimity among political parties to slow down any conceivable dynamic changes to acquire more noteworthy transparency and responsibility in the donations. As of late, political parties contradicted the Central Information Commission’s order to bring political parties including their donations under the ambit of the Right to Information Act.

On 10th April’19, the Election Commission has mentioned in the Supreme Court that it is not against the mode of donations for political funding but the anonymous donations made to political parties. The stand by the Central Government, however, is that the identity of the donor should not be disclosed.

This contradicts the 2017 stand of the Election Commission in the Supreme Court whereby they mentioned Electoral bonds as a ‘retrograde step’ in an affidavit filed by the Election Commission. The counsel for the Election Commission submitted only public donations through electoral bonds was objected.

Supreme Court Guidelines on Electoral Reforms

Supreme Court had raised the issue of Irresponsible guarantees made by the political parties in their election manifestos. The Court guided the Election Commission to call the political parties and talk about an exit plan. The rules that there should be mindful guarantees in the declaration were incorporated into the Model Code of Conduct.

In 2002, Supreme Court had said that the candidate while documenting his nomination papers needs to record a testimony giving the information of his monetary resources and furthermore with respect to the criminal records[8] which are pending against him. A large portion of the changes has gotten through the Supreme Court which is an indication of legal activism.

The Delhi High Court[9] decided that leading political parties including BJP and Congress were guilty as they were accepting foreign funding which violated the Foreign Contribution (Regulation) Act, 2010 and thereby directed the Election Commission of India and the Home Ministry to take an action within six months of the order. An appeal was filed in the Supreme Court, which was allowed but the Supreme Court refused to stay the order the High Court.

Hence, the judiciary has the power to decide on matters and thereby enable a system of funding of political parties which are transparent and against corruption.

Foreign Donations

The use of foreign funds in elections as is a disputable issue over the world. In France, their former president Nicolas Sarkozy is under investigation over claims that Libyan despot Muammar Gaddafi donated funds for his 2007 election campaign. The contention over Russia affecting Donald Trump’s presidential campaign in the US is as yet not finished. This arrangement may open the conduits for outside effect on key approaches in politics, and possibly influence the nation’s strategic advantages.

Luckily, Indian elections have so far stayed free of any known remote impact, yet there is no denying that cash, particularly unaccounted money spilling out of groups of people and people with business premiums, has regularly assumed a vile job in the election campaigns. Further, as per specialists and the resistance groups, the limit on corporate donations and inclusion of electoral bonds has additionally reinforced corporate impact in political leadership. In the years of 2012 and 2016, corporate donations shaped a stunning 89 percent of the absolute assets.

The 2017 Finance Act lifted the limit on corporate donations from 7.5 percent of the net benefit of an organization’s previous three financial years and removed the commitment to report such donations in the organization’s benefit account. Also, such donations don’t require the endorsement of an organization’s top managerial staff. This arrangement is a helpful escape clause for corrupt components to course dark cash through counterfeit organizations.

New petition filed by ADR in April 2018[10]:

Association for Democratic Response’s request challenged the corrections and amendments made with review impact in the Foreign Contribution Regulation Act, 2010 through the Finance Act, 2016 and Finance Act, 2018, which was passed as a Money Bill. These changes were viewed as an endeavor to upset the judgment given by the Delhi High Court in March 2014 holding the two noteworthy political parties, Bhartiya Janta Party(hereby known as “BJP”) and Indian National Congress(hereby known as “INC”), blameworthy of tolerating foreign donations. The Delhi High Court requested the Central Government and Election Commission of India to make a move against BJP and INC inside six months. These alterations to the Foreign Contribution Regulation law have opened ways to boundless political gifts in the form of donations from remote organizations and furthermore legitimizing money related contributions received from foreign sources. The appeal was required because of the uncompromising nature of the Central Government in conforming to the Delhi HC request of March 2014 and rather attempting to get BJP and INC free by correcting the Foreign Contribution Regulation Act, 2010 in that of 2016 and accordingly the Foreign Contribution Regulation Act, 1976 in March 2018.

Issues with regard to electoral bond

The electoral bond has an actual existence of 15 days amid which it may be given to an enlisted political party which has surveyed 1 percent of the vote in the state, or, national decision. The party needs to open an account in an assigned SBI branch. The party does not need to unveil who it has gotten the bond from in its record. Neither does the donor have a duty to state to which party it has given. Hence, it enables the donor not only to hide the information as to donation to be made to a particular political party but also not to disclose his own identity.

The arrangement of electoral bonds encourages corporate funding to the political parties and opens the path for legitimizing pay off and corruption. Organizations will have the motivator to give gigantic donations to the party to acquire their support. Officially, through the Finance Bill, a change was made to the Company Law. The limit on organizations offering funds to political parties of 7.5 percent of net benefits earned in the past three years has been expelled. Further, the alteration had discarded the prerequisite which accommodates revelation of the name of the political party to which the organization makes the commitment. So now, organizations can give boundless funds to a party without exposing their identities.

The Finance Minister had asserted, at the time the electoral bonds were presented, that this will acquire more transparency. This claim, however, has not been accurate. On the off chance that transparency is the point, the identity on the entity donating the funds and that of the beneficiary party ought to be freely known.

The leading government has figured out how to legitimize bribery, by donations made through bonds by anonymous donors. Prior to this, an organization which won an agreement would have needed to pay an amount unlawfully and unofficially as far as the government was concerned. The electoral bond plan makes every single such bribery legitimate.

The hazy security framework can be abused for illegal tax avoidance and black money tasks using such organizations as protection. Another aspect of the electoral bond is that it conspires to open the route for foreign organizations to support political parties in India without it getting to be public. In the Finance Bill of 2016, the administration had revised the Foreign Contribution Regulation Act (FCRA) to treat donations by Indian subsidiaries of such companies as a donation from Indian sources. With this change of the FCRA, foreign corporate financing to political parties was authorized.

The issue with regard to electoral bonds was first identified when a total of over 200 crores of bonds were issued, where 95% of these bonds were given to BJP which confirms the ruling party’s involvement in the process of corporate funding by introducing electoral bonds.

Challenges

This move of decreasing the donation limit to Rs 2000 will raise the paperwork for the political groups to guarantee that the assets are from the obscure sources. Further, the political groups may change over the gigantic amounts they get into single donations of Rs 1990 which prompts more paperwork. In this way, it doesn’t take care of the issue altogether.

The state financing of elections is hard to screen in light of the fact that for the Vidhan Sabha elections, the cutoff is 28 Lakhs yet the political groups spend in crores. The 28 Lakh given by the state will run financed with the black money utilized by the political groups.

The legislature has proposed ‘electoral bonds’ where the donor’s identity won’t be known to the beneficiary. This can be counterproductive in light of the fact that the identity of the contributor won’t be hidden from the legislature and the government will be aware of the data. So it resembles the administration command over the political groups.

Absence of Transparency in relation to electoral bonds, therefore, means that the name of the benefactor won’t be uncovered either to the gathering or to the general population. Along these lines, the issue to supplant anonymous donations and achieve transparency and responsibility towards voters will continue as before. It just advances the way of life of haziness that infests India’s present political account routine. Major issues due to lack of transparency in the electoral bonds include:

  • Generation of black money: Opacity will prompt increasingly more black money into the political framework.
  • Political corporate nexus: Government removal on the limit of donations to political parties by enterprises in March 2017 and the present principle of keeping up secrecy of the donor additionally expands the corporate and legislators nexus to progress in the direction of the satisfaction of their own narrow-minded points. It will hamper popular government and making it less liable to the individual voter and increasingly receptive to profound pocket particular vested parties.
  • The reaction in execution: Given that the State Bank of India is claimed by the Union government, this raises the idea that information on donors could be made accessible to the political parties to be utilized to its advantage. So the electoral bonds plan may not work by any stretch of the imagination. Most private contributors lean toward obscurity because of a paranoid fear of retaliation from political parties. They would proceed with a donation of money under the Rs 2,000 chunk and by means of appointive trusts where anonymity is maintained

Conclusion

The existing methods for political funding are not transparent thereby leading to corruption and a ‘kickback’ for the government. Electoral bonds and anonymous donations, including donations from foreign companies lead to corporate control and an increase in black money in the economy of India. Thus, transparency for the public is opaque.[11]

Guaranteeing financial transparency in the undertakings of the political parties just as of candidates is, in this way, of most extreme significance. The issue of cleaning the political finance system is worldwide which every democracy is battling with it. Be that as it may, India is a long way behind worldwide benchmarks, flawed as they might be.

In order to improve the current funding scenario in Indian politics by accounting every penny donated to the political parties through the method of digital transactions. Also, the system of electoral bonds should be removed and the provisions leading to corporate funding and funding from foreign sources should be amended.

As discussed by the Indrajit Gupta Committee of 1999, funding of political parties should be done by the States in the form of State funding. State funding in the elections seems to be a solution to the current problems to the political funding scheme as it will lead to democracy of political parties internally. The committee recommends the need to create a legal framework in order to regulate and revise the funding of elections by political parties. It has also recommended that the state funding to the political parties should be made on the basis of the performance of such party.

Incorporating a National Electoral Fund whereby the information with regard to the donors shall not be disclosed and such donations will be made like that to the country and not a political party can be a viable alternative. This Fund then may distribute the money to political parties on the basis of the votes they obtain and their performance. A tax benefit can be provided on those people who donate to the Fund.

Thus, in order to achieve transparency in political funding, firstly, the State needs to take requisite steps to keep large amounts of money outside the scope of politics in order to control private financing; secondly, to create a public financing and disclosing the identity of donors leading to transparency; thirdly, to create laws with regard to state funding of political campaigns.

[1]Speech of Union Finance Minister Arun Jaitley announcing the 2017-2018 Union Budget, 1 February 2017

[2]Source: Association for Democratic Reforms

[3]ibid

[4] Association for Democratic Response & Anr v Union of India & ors., W.P. No. 880/2017

[5] Association for Democratic Response & Anr V Union of India & Ors., (2014) 209 DLT 607

[6] LilyThomas v Union of India & Ors., (2013) 7 SCC 653

[7] People’s Union for Civil Liberties & Anr. v Union of India & Anr., (2013) 10 SCC 1.

[8] Union of India v Association for Democratic Response & Anr, AIR 2002 SC 2112

[9] Supra No. 2

[10] ADR Writ petition in Supreme Court, April 2018 (Source: adrindia.org)

[11]Milan Vaishnav, ‘Finance Bill Makes Funding for Political Parties More Opaque Than Ever’, Hindustan Times, 29 March 2017

MAJORITY SHAREHOLDERS BUYING OUT BY MINORITY SHAREHOLDING: AN ANALYTICAL STUDY IN REFERENCE TO COMPANIES ACT, 2013 : MD. IMRAN AHMAD


ISSN: 2581-8465

Author: Md Imran Ahmad, Jamia Millia Islamia

MAJORITY SHAREHOLDERS BUYING OUT BY MINORITY SHAREHOLDING: AN ANALYTICAL STUDY  IN REFERENCE TO COMPANIES ACT, 2013

Introduction

The idea and the act of squeezing out minority shareholders have always existed in the corporate framework, however, there was no provision into the state of Companies Act, 1956. This concept has, however, been introduced in the Companies Act, 2013. The circumstance of the predominance of majority rule and in the meantime ensuring the rights and enthusiasm of the minority has dependably been the issue of contention and conflict. It is essential for the rule to guarantee that the powers of the majority are within sensible limits, consequently not bringing about abuse and oppression of the minority. In any case, the pragmatic ramifications of securing minority interests while taking vital business choices frequently lead to issues which lead to delayed legal cases.

Under the explanation provided by Section 151[1] of the Companies Act, 2013 the importance of the term Small Shareholders has been given to mean methods an investor holding shares of ostensible estimation of not in excess of twenty thousand rupees or such other aggregate as might be endorsed. Yet, such significance is limited to this specific section as it were.

Squeeze out, in a setting of acquisition implies a circumstance where the minority shareholders are squeezed or hauled out of their shareholding in the transferor organization by the majority shareholders by buying their stake despite the contradiction by the minorities.

The term squeeze out suggests the necessary acquisition of equity shares[2] of an organization from minority shareholders through money in the form of compensation. This strategy helps shareholders holding 90% or all the more shareholding in an organization to gain the shares in the organization from minority shareholders. Squeezeout alludes to an exchange where the obtaining party is the controller of the company to be acquired. The Companies Act, 2013 accommodates the idea of squeezing out[3] which completely specifies circumstances whereby minority shareholders can be purchased out by the majority shareholders. It provides thatmajority shareholder of an organization holding at any rate 90% of equity shares has a privilege to notify its aim to purchase out minority shareholders who may pitch their shares to the majority shareholders at a cost to be resolved as per the principles under Companies Act, 2013.

Companies Act, 2013

Section 236 of the Act accommodates the buying of minority shareholding by the majority shareholders as per the arrangements of the section read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.

Pervasive practices for squeezing out of the minority shareholding from element organization around the world has for the most part been takeovers, arrangements, mergers, conversion of securities to equity and capital reduction.

In the instance of Needle Industries (India) v. Needle Industries Newey (India) Holding Ltd.[4], it is a milestone case regarding this matter and the Supreme Court’s choice for this situation keeps on being an expert regarding the matter. For this situation, the foreign majority affirmed oppression by the Indian minority shareholders as the minority delegated extra executives and issued further shares. The Company Law Board and the High Court held such demonstrations of the minority investor as oppressive. In the appeal for this case, the Supreme Court saw that regardless of whether an instance of mistreatment and oppression fails, the court has the capacity to do generous equity in the issue and accordingly on the realities and condition of the case, the Supreme Court while dismissing the request of abuse, guided the minority Indian shareholders to buy shares held by the majority foreign shareholders.

Certain rules were set by the Bombay High Court in the case of Cadbury India Limited[5]  and it additionally characterized the importance of the word ‘preference’. The court said that in exchanges including minority purchase, it is an obligation of the court[6] to ensure that the plan isn’t against the open intrigue, is reasonable and just, and does not unreasonably oppress or preference a class of shareholders and draws a harmony between the business intelligence of the shareholders communicated at appropriately assembled gatherings. The expression prejudice in connection to the valuation of a plan would mean something more than simply accepting not as much as what an investor wants, being a deliberate endeavor to drive a class of shareholders to strip themselves of their possessions at a rate far beneath what is sensible, reasonable and just.

Acquisition of Shares:

The acquisition[7] under Companies Act, 2013 necessitates that a transferee organization may under a plan or contract; make an idea to the shareholders of the transferor organization to procure their shares. On the off chance that such offer is endorsed by the shareholders holding 90% of the shareholding inside two months after the expiry of four months, the transferor organization may pull out to the disagreeing shareholders, informing them of its aim to secure their shares. Further, if a disagreeing shareholder does not make an application to the National Company Tribunal inside one month from the receipt of such notice, the transferee will be qualified to acquire the shares of the contradicting shareholders on similar terms of the agreement.

The Court in AIG (Mauritius) LLC v. Goodbye Televentures (Holdings) Ltd.[8] tended to the inquiry that if offers were invited for shares comprising 90% or a greater amount of capital of an organization, at that point the rest of the shares would be procured at a similar cost. The Court was of the opinion that the majority group couldn’t use to expel the minority under this arrangement. The court held that it was this very reason the section is considered to be constitutional and if this was strayed from, it would add up to infringement of fundamental rights and accordingly be struck down.

Scheme of Arrangement:

The Companies Act consist of arrangements that license an organization to go into trade-offs and provisions in relation toits shareholders or creditors[9].In regard to squeeze outs, an organization may propose a plan that grants either a controller or the organization itself to buy shares held by the minorities along these lines affecting a squeeze out. The procedure starts with the organization applying to the High Court to assemble gatherings of the different investor classes.[10] The plan must be endorsed by a greater part in number speaking to 75% in the estimation of each class of shareholders present and casting a ballot, in discrete gatherings for each class. Once the endorsement is recieved, the organization should again approach the High Court for the assent of the plan. The High Court will hold hearings in which invested individuals may speak to themselves[11] and, whenever fulfilled, issue a request endorsing the scheme.[12]

Reduction of Capital:

The Companies Act, 2013 gives that the paid up capital of an organization can be diminished by satisfying the minority shareholders.[13] The decrease in such capital is liable to a special resolution which must be additionally affirmed by the National Company Law Tribunal (NCLT) of the concerned purview. Legal points of reference propose situations where specific decreases have been affirmed, enabling certain individuals to hold their shares unreduced while shares of others are doused.

The court, in Chetan Cholera v. Rockwell,[14] was of the opinion that companies in India regularly embrace this strategy to specifically expel the non promoter minority. The Court was reproachful of this perception and repeated that it is significant for Courts while securing the privileges of worker/representatives/shareholders/promoters to not just cling to the procedural and substantive parts of the plan of course of action. The Courts ought to likewise think about Articles 38 and 39 of the Constitution which guarantees and verifies the residents a communist state. The Court stressed upon the obligation of controllers like SEBI to protect the premiums of the financial specialists.

Exit Price:

Section 236(2) of the Act accommodates a pre-decided exit cost to be offered to the minority shareholders to be determined by an enrolled valuer in accordance with CAA Rules, 2016[15] which accommodates assessment criteria for recorded companies just as unlisted companies.

To continue with the buying of minority shareholding, the majority shareholders are required to store a sum equivalent to the estimation of shares to be gained by them of the minority shareholders in a different financial balance which will be worked by the transferor organization for atleast one year for installment to the minority shareholders, in any case, such sum will be dispensed to the entitled shareholders inside sixty days;

Such dispensing will keep on being made to the entitled shareholders for a time of one year, where the entitled minority shareholders have neglected to get or guarantee installment emerging out of such payment.

Suo moto offer by the minority shareholders:

The minority shareholders can suo moto give an offer to the majority shareholders to buy their value shareholding under Section 236(3) of the Act at a cost touched base as per the previously mentioned CAA Rules, 2016.

Negotiation deal:

Section 236 (8) of the Act accommodates a commonplace exchange bargain between the acquirer and the minority shareholders. This arrangement enables the majority shareholders to share the extra pay paid by them for coming to from a stake of 75% to a stake of 90% in the transferor organization with the minority shareholders. This is by all accounts a defensive arrangement for the minority shareholders.

Conclusion

Squeeze outs are the kind of controller exchange that can conceivably harm minorities. Over the world, there are various ways to deal with offsetting the worries related to ensuring minorities and worries with not anticipating esteem upgrading press outs. These reactions run from those depending on genuinely basic standards, from casting a vote by ballot by minorities to more full‐scale court supervision and intercession. In India, the assurance for minorities in squeeze outs is genuinely feeble by worldwide norms and there is a solid case that can be made for upgrading security.

As there was no comparing arrangement in the past Companies Act, 1956, Section 236 of the Companies Act, 2013 acquires the Indian professional workplace arrangement with the worldwide corporate world by presenting the idea of squeezing out of minority shareholding. It very well may be viewed as a dynamic move for development and shirking of dubious hindrances.

Be that as it may, there can be a few breaches seen in the arrangements of Section 236 of the Act identifying with the purchase of minority shareholding as to no clearness on whether minority shareholders will undoubtedly acknowledge the idea as it represents a genuine danger on the privileges of minority shareholders. On the off chance that the equivalent is translated as a mandatory securing, there is no extension for resistance by the disagreeing shareholders. Notwithstanding this, there is no arrangement for holding a different gathering of the minority shareholders to cast a ballot against such press out. The arrangements of Section 236 plainly consolidate the idea of squeeze out existing in different nations however with specific holes in the rule for the previously mentioned issues, the functional ramifications of this section will go about as a support in choosing the advantages and obstacles it would make in the coming corporate future.

While we have set out a portion of the more substantive changes to address the issues radiating from squeeze outs in India, in the more drawn out term there is a need to streamline this zone of the law through authoritative intercession. As we have seen, the law identifying with squeeze outs in India is divided. The law identifying with necessary acquisitions is the main statutory arrangement that explicitly ponders a squeeze out of minorities and was expected explicitly for that reason; the training shows that it has been utilized least in India. Rather, other exchange structures, for example, plans of course of action and decrease of capital, which were planned for different purposes, have been utilized to impact squeeze outs.

While we have set out some of the more substantive reforms to address the problems emanating from squeeze outs in India, in a longer term there is a need to streamline this area of the law through legislative intervention. As we have seen, the law relating to squeeze outs in India is fragmented. Instead, other transaction structures such as schemes of arrangement and reduction of capital, which were intended for other purposes, have been used to effect squeeze outs.


[1] Appointment of director elected by small shareholders.-A listed company may have one director elected by such small shareholders in such manner and with such terms and conditions as may be prescribed.

[2] Minority Squeeze Out, R. Luthra

[3] Section 236 of Companies Act, 2013; Section 395 of Companies Act, 1956

[4] Needle Industries (India) v. Needle Industries Newey (India) Holding Ltd., AIR 1981 SC 1298

[5] (1976) 1 W.L.R. 123

[6] Under the 1956 Act the High Court was the authorised body but under the Companies Act, 2013 tribunal is the authorised body.

[7] Section 235 of Companies Act, 2013

[8]AIG (Mauritius) LLC v Tata Televentures (Holdings) Ltd., (2003) 43 SCL 22 (Del.)

[9] Section 230 of Companies Act, 2013

[10] Section 230(1), (6) of Companies Act, 2013

[11] Section 230(4) of Companies Act, 2013

[12] Section 66 of Companies Act, 2013

[13]Ibid

[14]Chetan Cholera v. Rockwell, (2010) 102 SCL 93 AP

[15] Rule 27 of CAA Rules, 2016

CONFLICTS BETWEEN MORALITY AND LAW IN PUBLIC DISCOURSE OVER ANIMAL SUFFERING: PAVAN


ISSN : 2581-8465

Author: Mr. Pavan, BMS College of Law

CONFLICTS BETWEEN MORALITY AND LAW IN PUBLIC DISCOURSE OVER ANIMAL SUFFERING

Abstract:

This article encompasses the reality of animal suffering and the legal and moral status of animals in the society. With the increase in urbanization and the development in the world, there is an increase in animal torture thereby leading to the need for laws to protect animal interests in the society.

Due to the existence of laws, there is a conflict between the need for public discourse of the law and the ethical nature for such cases. This article deals with the jurisprudence of such conflict.

Key words: Animal suffering, public discourse, animal welfare, animal cruelty

Introduction

Consistently many billions of animals are slaughtered inside the sustenance business alone, and with the extension of the Western way of life to new geologies, individuals’ utilization and utilization of creatures for human objects is developing rapidly.[1] Simultaneously, there has been an expanding enthusiasm towards the moral[2] and legal status[3] of animals since the 1970s.

However, particularly in Europe, there is more enactment to secure and advance animal welfare than any time in recent memory. Regularly the legitimate and the ethical issues are laced. A definitive point is to empower the utilization of new viewpoints in animal law.

The animal welfare approach depends on the case that it is ethically wrong or crooked for people to cause ‘superfluous’ enduring, damage or torment on animals. Nevertheless, far as this methodology is concerned, it stays satisfactory for people to utilize animals for a wide scope of purposes, including for instance sustenance and dress, yet in addition delight, amusement and experimentation. As opposed to scrutinize the ethical and moral utilization of animals the welfare enactment is centered around the treatment of animals.

The center case of the intrinsic esteem opinion is that animals have more than instrumental esteem: they are animals of inherent esteem. From the perspective of good hypothesis, characteristic esteem remains contrary to instrumental esteem: it necessitates that one isn’t esteemed because of one’s utility for other people, but instead as an animal with autonomous good hugeness. Giving full respect for such an incentive in different animals would flag the finish of most contemporary types of using them, since for instance utilization of animals for diversion unavoidably cause the sort of damage that outcome in esteem encroachment.

Intrinsic esteem is put together not just with respect to animals’ likeness to people, nor their use-value, however conscious. In a lawful setting, animals ought to be secured by law for the wellbeing of their own, on the grounds that they exist as living creatures. Institutions and different guidelines should advocate their inborn esteem and their crucial advantages and needs. Legal wordings like ‘regard for animals’ or ‘regard for nobility’ are additionally utilized inside the idea of inborn esteem both in composed law also in jurisprudence.[4]

However, animals are not legitimate people, regular people or juristic people. Legally, animals are named objects with certain dimension of assurance by law and as property of people. In this manner, enactment places commitments for the most part on people while bearing considerable tact over the treatment of animals as property. However, ecological guidelines don’t seem to embroil a conclusion to or decline in the utilization of animals for human purposes. They don’t cover all species that are utilized for example as sustenance, albeit one can contend that the acknowledgment of nature’s entitlement to exist and its characteristic esteem mean situating ‘nature’ (incl. ‘wild animals’) outside the customary meanings of ‘articles’ and ‘things’.

To state that a being deserves of moral thought is to state that there is an ethical case this being can make on the individuals who can perceive such cases. An ethically impressive being is a being who can be wronged. Usually felt that in light of the fact that no one but people can perceive moral cases, it is just people who are ethically extensive. Nonetheless, when we inquire as to why we think people are the main kinds of creatures that can be ethically wronged, we start to see that the class of creatures ready to perceive moral cases and the class of creatures who can endure moral wrongs are not co-broad.

Law and Social Discourse

Rather than thinking about how well the law works, the focal point is of standardizing legitimate investigation, this methodology perceives that lawful gauges are a piece of a more extensive procedure as opposed to a far reaching, independent framework. Such a move in thought requires tolerating that law isn’t the steady, perpetual mass it now and again has all the earmarks of being, but instead the subject of a dynamic procedure, a cycle, and something that is persistently during the time spent restoration, refreshment, redesign and revolution.[5]

The methodology that is recommended[6] draws upon the thoughts of German logician Jurgen Habermas, one of the world’s most compelling savants and social theorists,[7] who has distributed more than twenty-five books addressing, among different points, political hypothesis, open sanity, epistemology, and law.

Focal subjects in Habermas’ work incorporate the significance of guaranteeing that people have a job in the administration of current just society and a conviction that a more grounded type of majority rule government is a certifiable and feasible objective, even in complex and pluralist societies.”[8] According to Habermas, a key component in acquiring the “liberation” of free people who may some way or another become casualties of administration by foundation is a dream of deliberative democracy.

This suggests that public discourse is a fundamental part of empowering fair change in the law and similarly significant in giving the law a chance to create in a manner that mirrors a more profound societal accord. A static law allows little exchange, though an energetic lawful framework has the inborn capacity to develop after some time and be acknowledged as a feature of the more extensive social ethic through open discourse and discussion.

Protection under Indian Constitution

The Constitution of India perceives the lives and welfare of creatures by making it a crucial obligation of the residents of India to regard and treat every single living animal with sympathy.

• Animal rights are secured under the Constitution of India. Article 51A(G) makes it a principal obligation upon each native of India to secure natural life and have sympathy for every living animal.

• According to Article 48, the State has the obligation to sort out agribusiness and creature farming on present day, logical lines and to make strides for saving and improving breeds, forbidding butcher of dairy animals and calves and other milch and draft cows.

• Article 48A gives that the State additionally has an obligation to secure, defend and improve the timberlands and untamed life of the nation.

• In List II (State List), Seventh Schedule, it is given that the State has the power and expert to: 14 Preserve, secure and improve stock and avert creature ailments, and implement veterinary preparing and practice.

• In List III (Concurrent List), it is given that both the Center and the State have the power and specialist to: 17 Prevent pitilessness to creatures; 17B. Secure wild creatures and feathered creatures.

•Under the Eleventh Schedule (Article 243 G), the Panchayati Raj foundations have the obligation and specialist to manage matters identifying with: 4.Animal cultivation, dairying and poultry; 5.Fisheries.

Animal Protection laws

The Prevention of Cruelty to Animals Act, 1960 is the Central Legislation with respect to creature security in India. The object of the Act is to forestall the curse of pointless agony or enduring on creatures.

The Wildlife Protection Act, 1972 is another Central Act that accommodates the security of wild feathered creatures, creatures, plants, and so on.

Different laws are found in the accompanying Rules: Dog Breeding and Marketing Rules, 2017, Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017, Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017 Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017, Animal Birth Control (Dog) Rules 2001.

Street Animals:

  • Killing, damaging, harming or rendering futile of any creature is deserving of detainment for as long as two years or with fine or with both, under Section 428 of the Indian Penal Code, 1860. Under Section 429 of the Code, the term is 5 years and is pertinent when the expense of the creature is over 50 rupees.
  • Section 11 of the Prevention of Cruelty to Animals Act gives that if any individual permits, or himself beats, kicks or torments, in any capacity, any creature exposing it to superfluous agony and enduring will be obligated to pay a fine of upto 50 Rs. In the event of reiteration of the offense, the fine will increment or a detainment for 3 months will be allowed.

Conclusion

As indicated by the discourse principle, simply those standards have the right to be legitimate that could meet with the endorsement of those conceivably influenced, to the extent that the last take an interest in discerning discourse. Consequently the ideal political rights must ensure support in all deliberative and decisional forms significant to enactment and must do as such in a manner that furnishes every individual with equivalent opportunities to practice the informative opportunity to take a situation on criticizable legitimacy claims. Equivalent open doors for the political utilization of informative opportunities require a legitimately organized deliberative praxis in which the talk guideline is applied.[9]

When somebody worried about animals takes a gander at the state in which such a large number of these creatures endure today, it is without a doubt hard to acknowledge that the response to the issue is basically more talk. Without a doubt the actualities are accessible for all to see, and activity, not discourse, is what is required. Tragically, as Anderson has demonstrated,[10] social developments with targets as significant as this one need advanced discourse as much as they need activity. Persuading general society of the need of embracing another social standard and acquiring the accord to sanction the progressions required will be a long, moderate procedure.

Despite the fact that a great deal of extremely detailed and explicit animal protection laws have been passed in India, they are frequently not legitimately actualized. It is so on the grounds that concerned residents and NGOs don’t frequently underscore on taking the lawful pathway to achieve results. In the meantime, understand that the enactment that we at present have in India isn’t adequately solid and sensible to roll out incredible improvement. The general enemy of remorselessness parts in Section 11 of the PCAA can be made much progressively successful by expanding the discipline and fine somewhat.

The laws can be made progressively stringent and comprehensive so animals of numerous sorts, be it road animals, wild animals and animals living in a wide range of natural surroundings are ensured and protected.


[1] European Commission: European Union Strategy for the Protection and Welfare of Animals 2012-2015

[2] The instrumental approach toward other animals has coincided with an opposite trend as societally, vegetarianism and concern for animal welfare have become increasingly popular. The latter trends are supported by various political and normative arguments, which advocate ‘animal rights’ or ‘animal liberation’. This shift is often linked to the highly influential book Animal Liberation (1975) by Peter Singer; yet the roots of concern toward animal issues have a long history in Western countries (Kean).

[3] With ‘legal status’ we mean the position of animals in jurisprudence and how the position (status) is expressed directly or indirectly in legal terms by the law.

[4] Francione calls this kind of approaching for ‘new welfarism’. According to Francione, it can mean everything between: 1) regulation leading to abolition, 2) regulation with focus on welfare, and 3) rejection of rights, with emphasis on ethics of care and love. Francione 2008, pp. 14-21.

[5] Palma Joy Strand, Law As Story: A Civic Concept of Law (with Constitutional Illustrations), 18 S. Cal. Interdisc. L. J. 603, 605 (2009)

[6] THE ANIMAL RIGHTS DEBATE AND THE EXPANSION OF PUBLIC DISCOURSE: IS IT POSSIBLE FOR THE LAW PROTECTING ANIMALS TO SIMULTANEOUSLY FAIL AND SUCCEED? By Peter Sankof

[7] Michel Rosenfeld, Book Review: Law As Discourse: Bridging the Gap Between Democracy and Rights, 108 Harv. L. Rev. 1163, 1164 (1995)

[8] James Bohman, Complexity, Pluralism, and the Constitutional State: On Habermas’s Faktizit¨at und Geltung, 28 L. & Socy. Rev. 897, 928 (1994).

[9] Habermas, Between Facts and Norms

[10] Anderson, Protection for the Powerless: Political Economy History Lessons for the Animal Welfare Movement

DEVELOPMENT OF FORENSIC SCIENCE AND CRIMINAL PROSECUTION IN INDIA: PREETI


ISSN : 2581-8465

Auhtor: Ms. Preeti, Research Scholar

DEVELOPMENT OF FORENSIC SCIENCE AND CRIMINAL PROSECUTION IN INDIA

INTRODUCTION

Forensic Science is the application of science to criminal and civil laws (majorly during criminal investigations) as governed by the legal standards of admissible evidence and criminal procedure (specific to region). Scientists in this field collect, preserve, and analyze evidence that could help discern the truth from the given facts and materials of any case. Forensic scientists are also required to appear as expert witnesses when their findings are pivotal to making or breaking a case.

When discussing the application of forensic sciences to a case, the most important person would be the investigating officer. He/she will be the person in charge of collecting, examining and utilizing all forensic material in relation to a case. Should the officer not be competent enough to handle the material and observe the minute details in which the story usually lies, the findings of a forensic scientist would render useless.

This article will take a look at the history and development of this field of science and the rapidly changing effects it has on criminal investigations in our country.

HISTORY & NATURE OF FORENSIC SCIENCE

In the olden days, most cases were solved based on the testimonies of key witnesses or relevant persons to a case. Their words were assumed to be the truth even though most statements were false, made either from a desire to evade the law or out of force.

The first occurrences of using medicine or science to prove facts was found in Asia – the books “Xi Yuan Lu” & “GunhegaranchaKardankal” which was authored by Dr. VasudhaApte – providing us with information of about 130 different methods of forensic investigation.[1] During this time (around 1248), forensic science was mostly about how one was to understand a dead body (autopsy). Reading marks, wounds, other signs on a corpse, being able to determine the time of death based on the lividity of the body, techniques on how to preserve a body for further re-examination at a later date; are all skills that were learned by forensic scientists.[2]

The 19th century is where we saw major development in the science as a field of study in its own right. The pioneer – Antoine Louis – worked on figuring out more techniques to ascertain the cause of death, as well as to distinguish between a murder and a suicide.  We then move on to the development of the science behind toxicology– MatieuOrfila, a Spanish chemistry teacher in France was the first one to theorize the detection of poisons and other chemicals that are not natural to the body; he is known as the Father of Toxicology. Then the use of photography became widespread and found its way into becoming a part of forensic science around the mid 1800s. By the 1850s, both French and American law enforcement had started to develop a database of criminals using the concept of mugshots. Consequential to the idea of building a database that could help identify criminals, European prisons began instructing their wardens to keep a record of the physical measurements of all prisoners – dimensions of their heads, feet, hands, ears, etc.. – to help identify them more easily. Towards the end of this century is when the study of fingerprints and their uniqueness gained popularity. In 1892, Francis Galton came out with the first method of analyzing fingerprints, which in its essence is still applicable today.

Moving onto the beginning of the 20th century we can see the scope of Forensics further expanding – the classification of blood cells for easier identification of bodies and matching of forensic materials/evidence; the birth of “Locard’s Exchange Principle”[3]; the development of handwriting analysis and the study of ballistics; using the field of biochemistry to solve forensic questions; and the creation of a tool that utilizes laser technology to locate residual fingerprints. We can see that end of this century is when the field of DNA research cropped up. The English researcher Alec Jeffreys was the one who discovered that each person has unique DNA, meaning that someone’s DNA can be used – much like a fingerprint – to identify a person.[4] The list of materials from which we can obtain one’s DNA is endless – even a piece of dead skin can be used to identify a person; plus, the number of DNA databases that we have developed over the past century has made identifying a person (using DNA) as easy as sending a text.

As we said earlier, all forensic techniques were borrowed from various scientific disciplines like bio-chemistry, medicine, anatomy, physics, photography, etc. But in the past few years Forensic Science has become a discipline on its own; developing branches which are exclusive to its study. This century has seen significant advances inserology, voice analysis, odor analysis, and in studies relating to nose prints and ear patterns. The most significant advancement would be that forensic scientists now have as far of a reach in the digital realm that they would have in the physical realm. Digital Forensics has come a long way in terms of generating databases with recorded, indefinable IP addresses; and other techniques to track and follow digital footprints.

From a bird eye’s view, we can say that the field of Forensic Science is dedicated to answering questions like whether a crime has been committed or not, how and when the crime (if committed) occurred, and who committed said crime.[5] Techniques used to find answers to these questions are all based on some fundamental principles – The Law of Individuality[6], Principle of Exchange[7], Law of Progressive Change[8], Principle of Comparison, Supremacy of Facts, etc.

Forensic Scientists are trained to pay attention to the detail, find ways to listen to what the evidence has to say, and never rely on anything that cannot be backed with proof – they’re probably scarier than lawyers. To sum things up – gone are the days when criminals escaped justice by splashing some bleach around; and in are the days when sneezing or shedding some hair, can earn you a one-way ticket to jail or save you from being falsely accused for something you didn’t do.

METHODS EMPLOYED IN FORENSIC SCIENCE:

Types of Evidence:

Forensic scientists typically work as generalists, which means that they need experience in operating with a good type of evidence varieties. However, several conjointly specialise in the employment of certain techniques and tools. Differing types of evidence need completely different skills and instrumentation. Kinds of evidence that are most often analyzed throughout investigations include: trace evidence and biological and flight evidence.

i) Biological Evidence:

In examining biological proof, rhetorical scientists use tools each at the scene, and within the research laboratory. Once a rhetorical somebody arrives at against the law scene, he could hunt for human remains, blood or alternative bodily fluids and collect samples of any that are found. as a result of not all bodily fluids (particularly people who are cleansed up after) are visible to the optic, the somebody will use the chemical Luminol to point out latent traces of blood. Wherever giant quantities of blood are gift, an expert in blood spatter analysis will examine the patterns and size of the bloody areas to work out data like the mechanical phenomenon of the blood. This knowledge will facilitate an investigator deduce what form of weapon was used, or wherever the culprit and victim were standing throughout the attack.

ii) DNA Evidence:

DNA proof uses the distinctive genetic markers that establish people to work out whether or not an individual was at a scene, or to spot a bit of property as happiness to a particular person. so as to spot associate degree individual’s deoxyribonucleic acid it should be extracted from a bit of property that an individual has had contact with, and has left a humor like cum, blood or spit on.  Somebody performs tests that establish genetic markers and build a profile that’s distinctive thereto person, and may be compared to a sample taken from somebody. Scientists may additionally try to get enough blood from proof to conduct materiamedica testing, to work out the presence of alcohol, drugs, poisons or chemicals.

iii) Trace Evidence:

Trace proof is found wherever 2 objects have created contact with one another. Once an individual or associate degree object touches another object, some ‘trace’ of the 2 are going to be changed. This can be the idea behind the analysis of fingerprints, tire and footprints, and fiber analysis. Technicians raise fingerprints from surfaces by dusting the world with a powder that sticks to the oils within the fingerprint. She then employs fingerprint lifting tape to require the print from the surface to the research laboratory, wherever it will be analyzed. Within the case of a footprint, tire track or alternative pattern that was left in an outside space, a rhetorical somebody will fill within the depression with plaster, which might be removed once it sets up. The casting is taken to a research laboratory wherever it’s keep till required, or compared against an acknowledged sample, like a suspect’s shoe.

iv) Ballistics:

Some rhetorical scientists specialize in the sector of ballistics testing. Ballistics could be a science that involves the science of the flight path that a bullet takes because it travels to its target. Trained ballistics specialists will collect an amazing quantity of knowledge concerning the kind of weapon that was used, the trail of the bullet and a lot of through the examination of the bullet itself. Guns turn out a particular pattern of damage and grooves on bullets as they’re laid-off, and this pattern is exclusive. By examining the bullets and test-firing weapons, associate degree investigator will often times either establish the kind of piece that was used, wherever it absolutely was laid-off from, or maybe match the bullet with a particular weapon.

FORENSICS IN INDIAN CRIMINAL INVESTIGATIONS

India is a country that has gone through drastic social changes at a very rapid pace. Within the matter of one hundred years, the nation has gone from being ruled by the British, an era when the police were feared and there were no laws to protect the rights of the people, to a growing urban society, where the fear for the law and the officers that enforce is fading. Along with these changes, access to resources like guns, bombs, drugs, passports and knowledge (blueprints, schematics, etc.) has become more widespread and difficult to regulate.

We have several laws in this country that enforce protocols[9] before any forensic evidence can be deemed admissible, to ensure the authenticity of everything brought before the courts.

Article 20(3) of our constitution gives every citizen the right to not be a witness against himself (should he/she find himself being accused of a crime). However, this law does not allow people to shield their identity – section 73 of the Indian Evidence Act grants the court the authority to demand submission of finger impressions at any time, regardless of the safeguards provided by the article.[10] Article 20(3) however does protect against the use of brain mapping and polygraph tests. In the 2010 case of Selvi&Ors. v. State of Karnataka and Anr.  the supreme court questioned the validity of the involuntary administration of certain scientific techniques (lie-detector tests, truth serum, narco-analysis, etc.) for investigative purposes. It was in this case that such tests were deemed to be inconclusive and thus their usage (if not court ordered) in a criminal investigation would be void.

Later in 2005, the Code of Criminal Procedure was amended, allowing officers to record basic medical details from accused persons upon their arrest. Section 53 of the CrPC even allows for subjecting the accused to a medical examination if there is reason to believe such an exam would further the investigation along. However, the provisions in this Amendment are limited to rape cases only.Similarly, Section 164A of the code provides for the medical examination of a woman who has allegedly been raped (within a 24 hour period). Both sections mentioned allow any appropriately licensed member of the Indian Medical Council to collect DNA and other forensic evidence during the medical exam.

Here is where a huge problem lies – collection of DNA (or any forensic material for that matter) is a tedious process – if the medical practitioner that is collecting the DNA makes even a small error or is unaware of the intricacies of the process, the sample could get contaminated, making it useless in court.This would mean that DNA evidence along with many other types of forensic evidence could be considered as inconclusive due to the difficult nature of the collection process as well as the high level of caution and care that must be taken while storing such material.

Which is probably the main reason why the Evidence Actcategorizes a forensic report as an “opinion tendered by an expert”. Even though the credibility of the expert can be proved through many certifications and his findings can be put under review/scrutiny, the court still has the freedom to disagree with the conclusions drawn from the expert’s interpretation of the evidence. In 2007, it was suggested by the National Draft Policy on Criminal Justice Reforms that the Evidence Act should be amended to make scientific evidence admissible as ‘substantive evidence’ rather than ‘opinion evidence (factoring in the sophistication of the concerned scientific discipline).[11]

Of course, making such a change is much easier said than done. There are still hundreds of technical gaps that could lead to the inadmissibility of scientific evidence into a court room. Mismanagement of the evidence, improper collection, preservation, omission of key evidence, breaking the chain of custody are just some of the many concerns that could place doubt on the authenticity of evidence produced.

There are two main underlying concerns that are the cause for the status of forensic evidence in Indian courts – the lack of independence of forensic labs and their self-regulation; lack of training in modern investigative techniques among our police force.

Solving the first problem is a much larger issue and solutions for the same do not fall within the scope of discussion of this article. The second problem, on the other hand, can be combatted only by investing more resources in training our police officers, by directing the legislature to create new laws that will regulate the collection, storage and analysis of forensic material, and by creating strict standards and protocols to be followed by forensic laboratories affiliated with criminal investigations.

CONCLUSION

There have been many occurrences where forensic evidence was used to convict an accused. However, the Indian criminal justice system’s main aim is to provide fair justice; and therefore, cannot deliver a judgment based on evidence that does not fully comply with the high standards of authenticity demanded. Several commissions that were created for the purpose of reforming the justice system have harped on the importance of using technology in crime detection and have repeatedly said that science and technology can help the system function more efficiently.

While Forensic Science progresses independently as a field of study, it is imperative that the laws that incorporate forensics into the justice system are updated appropriately as well. As of today, India is en-route to becoming a country with outdated investigation methods; the only reason being – all modern methods haven’t found a place in the provisions of our laws. The quicker we pen these methods down and regulate their use during investigations, the quicker we will be able to reduce crime and deliver fair justice to all.


[1] Translated to Washing Away of Wrongs http://www.cbsnews.com/htdocs/forensics/timeline.html

[2] Note that the field had not been established in its independent capacity by this time

[3] “The principle states that whenever a criminal comes into contact with a victim, an object, or a crime scene, he or she will leave behind evidence, and will also take away evidence” – https://crimsonpublishers.com/fsar/pdf/FSAR.000567.pdf

[4]“Crime Science: Methods of Forensic Detection”– Joe Nickell and John F. Fischer

[5] Above in bold – some of the common techniques used to answer these questions.

[6] This law says that every object, whether natural or man-made, has some distinguishing feature (which normally occur due to small flaws in the materials, in the arrangement of the crystals, imperfect stamping or due to inclusions of some extraneous matter.

[7] Supra Note 3

[8] “Everything changes with the passage of time” – collection and analysis of forensic material are two processes in the investigative process that must be done promptly. With time, the factors that will lead an investigating officer to the criminal or to the solving the crime, will change form and render different results from forensic tests.

[9] Code of Criminal Procedure, 1973; Indian Evidence Act, 1872; etc.

[10] Gaurav Aggarwal, Smart Study Series Forensic Medicine &Toxicology 73

[11] Report of the Committee on Draft National Policy on Criminal Justice, Ministry of Home Affairs, Government of India, July, 2007.

VICTIM NATION’S SOVEREIGN RIGHTS IN CYBERSPACE: ANEEZA BISHNOI


ISSN: 2581-8465

Author: Ms. Aneeza Bishnoi, phd scholar, University of Delhi.

VICTIM NATION’S SOVERIGN RIGHTS IN CYBER SPACE

Abstract:

This Article deals with the contemporary subject of when a state can conjure persuasive measures in the internet against non-state on-screen characters. To address this issue, this Article talks about the present dangers to states that exist in the internet, distinguishes the universal law on the utilization of power and examines ongoing state practice just as the proclamations of global courts on the subject.

At last, this Article gives a system to state leaders to use to decide if the state can legitimately utilize drive in self-preservation in the internet against non-state entertainers dwelling in another state’s region. By and large, it means that the expanding development of international law that it is equipped for looking up to the intricate difficulties of these new dangers while proceeding to scan for the way ahead that keeps up and upgrades the standard of law and limits strife inside the global network.

Key words: International law, sovereign rights, victim state, cyberspace, internet

Introduction

With the advancement of information innovation and broad utilization of the web, the issue of how the internet ought to be directed has progressively turned into a genuine concern of nations in the world. Honestly, there is no lawful vacuum in the global space of the internet, yet the lawful system for worldwide digital administration is a long way from being set up. All in all, the present principle making process in the worldwide the internet is formed by three variables, specifically, related establishments under the United Nations (UN) structure, enactment by territorial and particular global associations, and every single other exertion made by different partners from various nations.

Digital precariousness represents a similar test to worldwide harmony and security as the dangers of psychological oppression, transnational sorted out wrongdoing, neediness, irresistible maladies, ecological debasement, and atomic, organic synthetic and radiological weapons, as illustrated in the U.N. reports.[1] If according to the guidelines identified with the utilization of power in the internet isn’t accomplished, the outcome will be a self improvement framework inside the digital area, with potential overflow into the active circle. Inside this space, doubt will dominate, and open doors for participation for long haul solidness and common increase will be lost.

The standards identified with the utilization of power have since quite a while ago aided world harmony and steadiness. They stand immovably against hostility[2], encourage a base dimension of request, and can encourage a steady reason for trade, understanding, human innovativeness, and inventive open door in the internet. This Article contends that, given the focal significance of security for all states in the digital space, the international community must work to protect the regulating standards of jus ad bellum and discover chances to apply these standards in the cyber setting. States must work towards a harmonization of what each state comprehends to be a utilization of power in the internet. Understanding over the forms of sway and self-protection in the internet will enable states to create normal phrasing, improve consistency, and oversee potential emergencies in the digital area.

UN Framework with regard to rule making

There are four noteworthy foundations under the UN system managing the standard making process on the internet. First is the World Summit on the Information Society (WSIS). On December 21, 2001, the United Nations General Assembly (UNGA) the meeting of the WSIS was supported[3] in two stages including the Geneva stage[4] and the Tunis stage[5], which created four significant archives including the Geneva Declaration of Principles, the Geneva Plan of Action, the Tunis Commitment, and Tunis Agenda for the Information Society. As indicated by these reports, policy specialist for web related open approach issues is the sovereign right of states. They have rights and duties regarding global web related open arrangement issues.

Second is the Groups of Government Experts (GGE) on Information Security under the First Committee of the UNGA. Since 2003, four GGEs have been framed progressively to analyze the current and potential dangers from the digital circle, just as conceivable agreeable measures to address them. The third GGE finished up with a report in 2013 that worldwide law, and specifically the Charter of the United Nations, is applicable in the internet and that state sovereignty and global standards and rules that stream from power apply to the direct by conditions of ICT related (Information and Communications Technology) exercises and to their ward over ICT framework inside their territory.[6]

Another key organization is the United Nations Expert Group on Combating Cybercrime. The Commission on Crime Prevention and Criminal Justice (CCPCJ) was set up by the Economic and Social Council goals 1992, endless supply of UNGA[7]. Western countries, those from the European Union specifically, have been supporting for the Budapest Convention on Cybercrime to be acknowledged by national governments as a widespread arrangement on wrongdoings perpetrated by means of the web and other computer systems.

Further, it is the International Telecommunication Union (ITU). The ITU included the World Conference on International Telecommunications (WCIT) in Dubai, UAE in December 2012 so as to change the International Telecommunications Regulations (ITRs), a coupling worldwide bargain instituted in 1988. Amid the meeting, creating nations proposed to present alterations on web administration and digital security to advance equivalent web the executives by national governments, creating and grew alike.

Challenges in principles of sovereignty and self defense

The challenge in achieving a security agreement among states in the digital space is multifaceted. To start with, states may differ about the idea of the danger in the cyberspace. How one characterizes the threat will manage the components embraced to address the threat. A state may see the digital threats to be of a criminal sort, completed by individual programmers, or composed criminal associations carrying out extortion and taking personalities on the web. For this situation, the view is to use criminal law requirement components to address the danger. Those that see the danger to be a test to national power and sway would contend that such a risk requires a reaction to protect the country itself.

Second, in the internet as in different spaces, states stay sovereign, with rights completely perceived in the U.N. Contract. Regardless of whether states perceive the seriousness and concur on the idea of the digital dangers, they will probably not surrender their principal rights. States will in any case have every one of the privileges of statehood to incorporate the capacity to decide if and to what degree the state will draw in with the global network on any security issues. Third, states will keep up the privilege to practice self-preservation in the digital area, as in the spaces of air, land, and ocean.[8] The digital area won’t be any unique in relation to different spaces in which states have constantly kept up the privilege to ensure their security. In the event that an utilization of power is resolved to be essential for their security, states may utilize compel in the digital setting as they would in different areas.

States will stay sovereign in the internet or the cyberspace. As put forward in the Island of Palmas case, the rule of sovereignty in the relations between States connotes freedom. Autonomy with respect to a segment of the globe is the privilege to practice in that, to the prohibition of some other State, the elements of a State.[9] By marking the U.N. Contract, states profit by the benefits of sway as well as acknowledge certain obligations, which incorporate maintaining a strategic distance from mischief to different states. However, a state’s privilege of power and its commitment to do no damage, now and again, exist in pressure. In the digital setting, states practice sovereign power over digital foundation and digital tasks situated inside their region, including the privilege to restrain access to the Internet from inside the state.[10]

States will keep up the privilege to utilize constrain in self-protection in the cyberspace. Similarly, as the U.N. Charter perceives a state’s privilege of sway, the Charter and standard worldwide law completely perceive a state’s privilege of self-preservation against dangers.[11] The state’s entitlement to utilize drive in self-protection, in any case, is dependent upon the idea of the risk.[12] Certainly, if a state has been the casualty of an equipped assault from another express, the injured individual state has the privilege to utilize compel in self-protection against the assailant state.[13]

There is a huge accord that international law administers the activities in the internet and that states keep up power rights just as the privilege to safeguard against dangers in the internet. What is less sure is whether, in acting to save these rights, states will be well aware to settle on choices that safeguard these rights as well as diminish struggle in the internet and limit the open door for heightening. Where the global guidelines in the internet are not yet immovably settled, choices identified with the conditions under which a state will utilize compel in the internet will be managed by state practice and standard international law.[14] This standard practice will require certain investment as states think about choices and outcomes.

Relevancy of Sovereignty in the cyberspace under International Law

A few analysts have contrasted the Internet with either an international public good or a worldwide hall.[15] While the two examinations have pertinent ramifications for digital exercises under global law, and in this way are valuable correlations in the digital setting, the two terms should be perceived as flawed applications in the digital space. Open merchandise are wares that are non-rival and non-excludable—in other words, there is zero expense related with stretching out the support of an extra individual, and it is inconceivable or costly to reject people from getting a charge out of it.[16] Because these products advantage everybody, just the administration can commonly give these merchandise and advantages to people in general. Any privately owned business that may have had an enthusiasm for giving such products to the open rapidly perceives its powerlessness to charge for the merchandise and in this way loses any enthusiasm for giving the products.

While the cyberspace and access to the Internet are like public products in that they are promptly accessible to everybody at practically zero cost, the physical foundation of the Internet can be exorbitant to create and keep up safely.[17] Importantly, this framework can be physically situated inside sovereign expresses that can separate from the Internet (e.g., China’s Great Firewall), forestalling access for some.[18] The rule of power infers that a state has the privilege to control access to its region, and in this way, can confine any Internet access inside its sovereign region. Such an ability undermines the Internet’s assignment as a house—something that can’t be claimed by one individual. In contrast to the high oceans, which are an “unadulterated” center for all humankind and are not constrained by any one state, the digital space is a flawed lodge over which states have sovereign expert to prohibit others and authorize local decides that affect the Internet past its outskirts.

The standards of sovereignty and territorial integrity as privileges of a state don’t exist in a vacuum, yet are adjusted against the privilege of self-protection under universal law. As the guideline of sovereign balance passes on specific rights and restrictive experts on a state, it additionally involves the commitment of all states to regard the regional power of different states and anticipate mischief to them.[19] In agreement with the U.N. General Assembly’s Declaration Concerning Friendly Relations, states have an obligation to avoid sorting out, empowering, helping, or enduring invasions of equipped groups or demonstrations of common struggle in another state, and an obligation to forgo outfitted intercession under any circumstances in the interior or outer undertakings of another state.[20] Under international law, states have a commitment to find a way to ensure the interests of different states, including criminal acts or different exercises that incur genuine harm to the unfortunate casualty state.[21]

The thought is that when one state abuses another state’s regional integrity, it relinquishes its very own entitlement to regional honesty and state power. How these rights are adjusted between two states will rely upon how a state conjuring the privilege of regional honesty has consented to global commitments regarding the other state. The administration of the Internet and verifying countries from digital assaults, such as accommodating open products and the security of the center under universal law, bring this harmony among sway and a state’s obligations under the law to the cutting edge of the discussion.

In the digital space, a host-state that has both the ability to avoid a digital assault radiating from its domain, causing hurt in another state, and neglects to make a move to anticipate that hurt has neglected to satisfy its obligation under Article 2(4) of the U.N. Charter. A digital task that establishes a utilization of power under Article 2(4) is a universally illegitimate act.[22] This suggestion is strengthened when the host-state transparently bolsters the digital assault afterward and neglects to rebuff those people dependable. As the U.S. Universal Cyber Strategy states, in the digital area as in the physical space, states need to perceive and follow up on their lawful obligation to ensure data frameworks and secure national frameworks from harm or abuse.[23]

Conclusion

Under standard international law of state duty, states bear the duty regarding any demonstration that is inferable from the express that is a break of a international lawful commitment appropriate to that state.[24]  As the Corfu Channel case held, such breaks can be both positive acts by the state and demonstrations of oversight.[25] In the digital setting, a universally illegitimate act that a state would be in charge of could be an infringement of the U.N. Charter, a state’s utilization of power through a digital activities, an infringement of a law of outfitted clash commitment, for example, a digital assault against regular citizens or the rupture of peacetime principles, for example, leading digital tasks in the region of another state without that state’s assent. The injured individual state must probably demonstrate that harm has happened (or will happen) from the illegitimate demonstration. This commitment by the state isn’t restricted to avoiding acts that would be criminally unsafe to another state, yet in addition reaches out to acts that would (or can possibly) cause genuine harm inside the unfortunate casualty state.[26]

Notwithstanding being globally wrong, the demonstration must be owing to a state. This attribution necessity of the standard is the component that is most testing in the digital setting. Attribution for digital tasks is especially troublesome when aggressors can conceal their way of life just as the purpose of birthplace of the assault, utilizing nonpartisan states from which to dispatch the assaults. As indicated by the standard universal law of state obligation, any activities by a state authority would be inferable from the state if the person is being referred to be acting in his or her official limit.[27] This would incorporate activities that might not have been formally approved just as activities directed by private gatherings held by the state.[28] These elements are treated as augmentations of the state.


[1] U.N. Report, A More Secure World  (discussing the threats of weapons of mass destruction, terrorism, and transnational organized crime)

[2] Michael N. Schmitt, Responding to Transnational Terrorism Under the Jus Ad Bellum: A Normative Framework, 56 Naval L. Rev. 1, 3 (2008)

[3] Resolution 56/183

[4] December 10 to 12, 2003

[5] November 16 to 18, 2005

[6] UN General Assembly, “Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security,” June 24, 2013,

[7] Resolution 46/152

[8]In 2011, the U.S. government officially stated its position on a State’s right of self-defense in the cyber domain, noting that, “[c]onsistent with the United Nations Charter, states have an inherent right to self-defense that may be triggered by certain aggressive acts in cyberspace.” See White House, International Strategy for Cyberspace 10 (2011)

[9] Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928)

[10] ATO Coop. Cyber Def. Ctr.of Excellence, Tallinn Manual on the International Law Applicable to Cyber Warfare (Michael N. Schmitt ed.) (forthcoming 2013) (manuscript r. 1, para. 10) [hereinafter Tallinn Manual]

[11] Military and Paramilitary Activities in and Against Nicaragua, 1986 I.C.J. 14, para. 195; see also U.N. Charter Art. 2 (noting a prohibition on use of force and intervention); id. art. 51 (noting the right of self-defense in response to armed attack)

[12] U.N. Charter Article 2, 51

[13] U.N. Charter, Article 51

[14] Harold Hongju Koh, Legal Advisor, U.S. Dep’t of State, International Law in Cyberspace, Remarks at USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012)

[15] Gregory J. Rattray, Chris Evans, & Jason Healey, American Security in the Cyber Commonsin Contested Commons: The Future of American Power in a Multipolar World 137–76 (Abraham M. Denmark & James Mulvenon eds., 2010)

[16] Rattray, Evans & Healey, supra note 15, at 14–15

[17] Ross Anderson, Why Internet Security Is Hard—An Economic Perspective, Ann. Computer Sec. Applications Conf. (2001) 

[18] Katia Moskovich, Cracks in the Wall: Will China’s Great Wall Crack, BBC News (May 1, 2012)

[19] Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 43 (Apr. 9)

[20] Declaration on Friendly Relations, at 121

[21] United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3, paras. 68–69 

[22] U.N. Charter art. 2, para. 4

[23] 2011 International Cyberspace Strategy, supra note 15, at 10

[24] Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, art. 1–2, U.N. Doc. A/RES/56/83, Annex (Dec. 12, 2001)

[25] Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 23 (Apr. 9)

[26] Trail Smelter Case (U.S. v. Can.), 3 R.I.A.A. 1905, 1980 (1941)

[27] The International Law Commission’s Articles on State Responsibility Introduction, Text and Commentaries 99 (James Crawford ed., 2002)

[28] Responsibility of States for Internationally Wrongful Acts, Article 5

BASIC STRUCTURE OF THE CONSTITUTION: NAVNEET

ISSN : 2581-8465

Mr. Navnnet Sangwan, Assistant Professor, SRM University

BASIC STRUCTURE OF THE CONSTITUTION

Introduction

Doctrine of basic structure is no place communicated or referenced in the constitution of India J. Khanna gave that the power in Article 368 of ‘correct’ isn’t of nature of discretionary yet constrained. Verbatim of Article 368 is that “Intensity of parliament to change the constitution”, here the word ‘revise’ brings forth the tenet of essential structure. The word correct itself communicates that the parliament can alter the constitution however can’t change its goals and logic or quickly state the structure.

Therefore, the understanding of the basic structure is:

1.         The parliament’s boundless capacity to amend the constitution is liable to just a single limitation i.e it ought not weaken or abuse the essential structure of the constitution.

2.         The impacts of the alteration ought not be repealing or aggravating in nature towards the fundamental structure.

The tenet of basic structure however isn’t actually characterized yet through its substance which have been given by the judicature clears up a degree characterizing the casing or the structure of the constitution. Every now and then essential structure is upgraded with some new substance and subsequently the Supreme Court is yet to characterize the careful fundamental structure of the constitution.

•           Supremacy of the constitution

•           Rule of law

•           Sovereignty, freedom and republic nature of Indian country.

•           Judicial review

•           Harmony and Balance between basic rights and mandate standards.

•           Separation of intensity.

•           Federal character.

•           Parliamentary framework.

•           Rule of equity.

•           Unity and respectability of the country.

•           Free and reasonable decisions.

•           Powers of Supreme Court under Article 32[1], 136[2], 142[3], 147[4]

•           Power of High Court under Article 226[5] and 227[6].

•           Limited intensity of parliament to change the constitution.

•           Welfare state.

•           Freedom of a person.

As mentioned in the Constitution, Parliament and the state lawmaking bodies in India have the ability to make laws inside their separate purviews. This power isn’t outright in nature. The Constitution vests in the legal executive, the ability to mediate upon the protected legitimacy all things considered. On the off chance that a law made by Parliament or the state governing bodies damages any arrangement of the Constitution, the Supreme Court has the ability to announce such a law invalid or ultra vires. This check regardless, the establishing fathers needed the Constitution to be a versatile report instead of an inflexible structure for administration. Subsequently Parliament was contributed with the ability to revise the Constitution. Article 368 of the Constitution gives the rule that Parliament’s revising powers are total and incorporate all pieces of the report. In any case, the Supreme Court has gone about as a brake to the authoritative excitement of Parliament as far back as freedom. With the aim of protecting the first beliefs imagined by the constitution-creators, the zenith court articulated that Parliament couldn’t misshape, harm or modify the fundamental highlights of the Constitution under the appearance of correcting it. The expression of basic structure itself can’t be found in the Constitution. The Supreme Court perceived this idea without precedent for the memorable Kesavananda Bharati case in 1973.[7]

Individuals in India appear to have acknowledged the essential structure principle in a similar way as the Americans acknowledged legal survey of enactment guaranteed by the Supreme Courts of the United States in Marbury v. Madison[8]. In figuring out what basic structure is, the Court remembers national accord about such fundamental structure. It is difficult to express thoroughly the components which would establish the fundamental structure of the Constitution. It hence, should be verbalized from case to case.

Need for Constitutional Amendments

Provisions for amendment of the constitution, is made so as to defeat the troubles which may experience in future in the working of the constitution. The time isn’t static; it continues changing. The social, monetary and political states of the general population continue changing so the established law of the nation should likewise change all together toward it to the evolving needs, changing existence of the general population. In the event that no arrangements were made for amendment of the constitution, the general population would have response to additional protected strategy like transformation to change the constitution[9]. The creators of the Indian constitution were on edge to have an archive which could develop with a developing country; adjust to the changing conditions of a developing people.

History of basic structure

The Supreme Court in Shankari Prasad v Union of India[10], in 1951 where the First Amendment which inserted, Articles 31-A and 31-B of the constitution was challenged. The amendments was tested on the ground that it shortens the rights presented by part III and subsequently was void. The Court held that the power to amend the Constitution including the Fundamental Rights, was contained in Article 368 and that the word ‘Law’ in Article 13(2) did not include an amendment to the Constitution which was made in exercise of constituent and not legislative power. This decision was approved by the majority judgment in Sajjan Singh v. State of Rajasthan[11]. Thus, until the case of I.C. Golak Nath v. State of Punjab[12], the Supreme Court had been holding that no part of our Constitution was unamenable and that Parliament might, by passing a Constitution Amendment Act, in compliance with the requirements of Article 368, amend any provision of the Constitution, including the Fundamental Rights and Article 368 itself.

But, in Golak Nath’s case, a majority overruled the previous decisions and held that the Fundamental Rights are outside the amendatory process if the amendment takes away or abridges any of the rights. The majority, in Golak Nath’s case, rested its conclusion on the view that the power to amend the Constitution was also a legislative power conferred by Article 245 by the Constitution, so that a Constitution Amendment Act was also a ‘law’ within the purview of Article 13(2).

The Constitutional validity of the 24th Amendment was challenged in the case of Kesavananda Bharti v. State of Kerala[13]. The Supreme Court upheld the validity of 24th Constitutional Amendment holding that Parliament can amend any Part of the Constitution including the Fundamental Rights. But the Court made it clear that Parliament cannot alter the basic structure or framework of the Constitution.

This decision might be said to have assumed a noteworthy job in protecting India’s parliamentary majority rule government. In any case, as a portion of the ramifications of this case are even now getting to be evident, unmistakably its intricacy and absence of clearness on certain significant inquiries left a lot to be chosen by posterity.

In Indira Gandhi v. Raj Narain[14], the appellant challenged the decision of the Allahabad High Court who declared her election as invalid on ground of corrupt practices. In the mean time Parliament enacted the 39th Amendment withdrawing the control of the S.C. over election disputes involving among others, the Prime Minister. The S.C. upheld the challenge and held that democracy was an essential feature forming part of the basic structure of the Constitution. The exclusion of Judicial review in Election disputes in this manner damaged the basic structure. The doctrine of ‘basic structure’ placed a limitation on the powers of the Parliament to introduce substantial alterations or to make a new Constitution.

Hence, clauses (4) and (5) of Art.329-A were held to be condemned on the ground that they rejected the task of any law and exercise of legal survey in the matter of election of Prime Minister and the Speaker of the Lok Sabha. The criticized amendment was along these lines claimed to have damaged the standards of popular government, principle of law, partition of intensity and legal survey, which as indicated by the candidate were fundamental highlights of the basicstructure of the Constitution..

The scope and extent of the application of the doctrine of basic structure again came up for discussion before the S.C. in Minerva Mill Ltd. v. Union of India[15]. The Supreme Court unanimously held clauses (4) and (5) of Article 368 and Section 55 of the 42nd Amendment Act as unconstitutional transgressing the limits of the amending power and damaging or destroying the basic structure of the Constitution.

In Waman Rao v. Union of India[16], the Supreme Court held that the amendments to the Constitution made on or after 24.4.1973 by which Ninth Schedule was amended from time to time by inclusion of various Acts, regulations therein were open to challenge on the ground that they, or any one or more of them are beyond the constitutional power of Parliament since they damage the basic or essential features of the Constitution or its basic structure also upheld in  Bhim Singh Ji v. Union of India [17].

In L. Chandra Kumar v. Union of India[18] the Supreme Court held that power of judicial review is an integral and essential feature of the Constitution constituting the basic part, the jurisdiction so conferred on the High Courts and the Supreme Court is a part of in- violable basic structure of the Constitution.

In I.R. Coelho v. State of T.N.[19], Article 31-B as introduced by the Constitution (First amendment) Act 1951 was held to be valid by the Supreme Court. The fundamental question before the nine Judge Constitution Bench was whether on or after 24.4.1973 (i.e. when the basic structure of the Constitution was propounded) it is permissible for the Parliament under Article 31-B to immunize legislations from fundamental rights by inserting them into the Ninth Schedule and if so what is the effect on the power of judicial review of the court. The challenge was made to the validity of the Urban Land (Ceiling and Regulation) Act, 1976 which was inserted in the Ninth Schedule.

Conclusion

There is no fixed principle for basic structure of the Constitution. Distinctive judges keep diverse perspectives with respect to hypothesis of basic structure. However, at one point they have comparable view that parliament has no capacity to pulverize, modify, or undermine the basic structure or system of the constitution. In the event that the recorded foundation, the introduction, the whole plan of the constitution and the applicable arrangements thereof including Article 368 are remembered then there can be no dispute, in figuring out what are the essential components of the fundamental structure of the constitution. This applies well to the doctrine of basic structure, in light of the fact that, the government and law based structure of the constitution, the detachment of forces, the mainstream character of our state are particularly more distinct than either carelessness or characteristic justice.[20]

Hence the sovereign, equitable and secular character of the country, principle of law, autonomy of the legal executive, essential privileges of natives and so forth are a portion of the basic structure of the Constitution that have showed up on numerous occasions in the zenith court’s professions. One assurance that rose out of this tussle among Parliament and the legal executive is that all laws and sacred corrections are presently subject to legal survey and laws that transgress the fundamental structure are probably going to be struck somewhere around the Supreme Court. Fundamentally Parliament’s capacity to change the Constitution isn’t total and the Supreme Court is the last judge over and mediator of every single sacred revision.


[1] Article 32 of Indian Constitution: Remedies for enforcement of rights conferred under Part III

[2] Article 136 of Indian Constitution: Special leave to appeal by the Supreme Court

[3] Article 142 of Indian Constitution: Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc

[4] Article 147 of Indian Constitution: Interpretation

[5] Article 226 of Indian Constitution: Power of High Courts to issue certain writs

[6] Article 227 of Indian Constitution: Power of superintendence over all courts by the High Court

[7] Supra Note 13

[8] I. Cranch 137 : 2 L.Ed. 60

[9] Supra Note 13

[10] A.I.R. 1951 S.C. 458

[11] A.I.R. 1965 S.C. 845

[12] A.I.R. 1967, S.C. 1643

[13] A.I.R. 1973 S.C. 1461

[14] A.I.R. 1973 S.C. 1461

[15] (1980) 3 SCC 625

[16] (1981) 2 SCC 362

[17] (1981)1 SCC 166

[18] (1997) 3 SCC 261

[19] (2007) 2 SCC 1

[20] H.M, Seervai: Constitutional law of India, Vol. II, p. 1668(2nd Ed.)

ARTICLE: PART OF THE CONSTITUTION OF INDIA: DEEPSHIKHA.


ISSN: 2581-8465

Author: Ms. Deepsikha, Research Scholar

Article 35A: Part of the Constitution of India

An extensive number of political and barrier examiners quality instability in Jammu and Kashmir (J&K) to India’s failure to completely coordinate the state into the Union. The difficulties towards such incorporation have authentic roots, dating to the conditions under which the state, driven by Maharaja Hari Singh, consented to India, following Pakistan’s endeavors to attach the state through power. Truly, Pakistan has additionally reliably offered help to psychological militant and nonconformist developments in J&K and has likewise stretched out such help to advance dread in different pieces of the nation, in promotion of its own advantages. The third factor is the burden of Article 370 in the Indian Constitution and the expansion of Article 35A, through the arrangements of Article 370.

Going through the pages of your Bare Act of the Constitution of India, if you try to find Article 35(a) after Article 35, you would fail to get it. It can be pointed in Appendix I of the Constitution of India. It is a unique provision for the people of Jammu and Kashmir in the Indian Constitution. It is a provision exclusively for the people of Jammu and Kashmir through a Presidential Order issued in the year 1954. This Article empowers the State legislature of Jammu and Kashmir to define the State’s ‘permanent residents’. Although it was enacted in the year 1954 but people were not well aware about this provision unless and until cases were filed in the Supreme Court of India challenging the validity of such provision.This lead to immense debates in many forums and Jammu and Kashmir issue has always been the most debatable and controversial issue in the history of India which is still persistent even after 70 years of Independence of India.This paper discusses the history of the Kashmir issue, inconsistent with Articles 35(a), 370, part IV of the Indian Constitution, along with the arguments in favour and against the special status given to Jammu and Kashmir.

Nature of Acquisition of Jammu and Kashmir

The history of acquisition of Jammu Kashmir dates back to the time when India and Pakistan got independence and became two different States on 15th August 1947 and 14th August 1947 respectively at the time of which Jammu and Kashmir was independent and was on neither side. There was an agreement between Jammu and Kashmir, Pakistan and India that neither India nor Pakistan will attack on Jammu and Kashmir. India respected the agreement while on October 6 1947, Kashmir was attacked to capture it by force by “Azad Kashmir Forces” backed up by Pakistan. At such a crucial time in order to save Kashmir Maharaja Hari Singh acceded Jammu and Kashmir to India.[1] But during this time certain commitments made by the then prime minister Jawaharlal Nehru, led to one of the most controversial Article of the  Indian Constitution which is, Article 370. The ruler signed an instrument where they surrendered powers in just 3 fields i.e. defence, communication and external affairs. The power that is enjoyed by this state is very much different from that of the other states.

Enactment and Implications of Part 21 of the Constitution of India

Part 21 of the Indian Constitution empowers “Temporary, Transitional and Special Provisions” from Article 369 to 392. This part of the Constitution of India provides special status to Jammu and Kashmir (Art 370), State of Maharashtra and Gujarat (Art.371), Nagaland (Art. 371A), Assam (Art. 371B), Manipur (Art. 371C), (Art. 371D), Sikkim (Art. 371F), Mizoram (Art. 371G), Arunachal Pradesh (Art. 371H), Goa (Art. 371-I) and Karnataka (Art. 371 J).

Article 35(a) reads as;

“Saving of laws with respect to permanent residents and their rights.—Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,—

  • Denning the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
  • Conferring on such permanent residents any restrictions as respects—
  • Employment under the State Government;
  • Acquisition of immovable properly in the State;
  • Settlement in the State;or
  • Right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of of this Part”.

Along with Jammu and Kashmir,the Constitution has empowered other states as well with special status but the provisions like Article 35(a) make it more partial, biased and discriminating.
The text of the Article 370 is read out as;

(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said State shall be limited to

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify Explanation For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948 ;

(c) the provisions of Article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause ( 1 ) or in the second proviso to sub clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause ( 2 ) shall be necessary before the President issues such a notification.

Background

The laws gone by the Parliament subjects in the Union and Concurrent records would not naturally be legitimate in the state except if the President of India in simultaneousness with the state government announced them material to the state.

This was done in exercise of the forces presented by proviso (1) of Article 370. The Article 370 was presented, remembering the circumstance in J and K. India offered mix on specific terms and conditions and with it exception from use of every Indian law. Gopalswamy Ayyengar[2], who moved the Article 370 in the Constituent Assembly, in 1949, referenced the extraordinary conditions in the Jammu and Kashmir state as pursues:

1.         The war inside the express a truce had held since the start of the year (1949) yet conditions are still uncommon and anomalous, ordinary life not yet reestablished.

2.         Part of the state is still in the hands of revolutionaries and foes.

3.         Entanglement with the United Nations over the issue of J&K and the Government’s responsibility to giving the general population of the State the chance to choose for themselves whether they wish to stay with the Republic or to abandon it (counting a plebiscite if the correct conditions win)

4.         Agreement that the desire of the general population, through a Constituent Assembly, will decide the constitution of the state and the circle of Union ward over the state.

Ironically, the initial two uncommon conditions are as yet a reality for Jammu and Kashmir’s social and political condition considering the constant passings and dissents it has been seeing.

This has been avowed by the Supreme Court too, on account of Prem Nath Kaul v Nath Kaul v State of J and K[3] , Sampath Kumar v State of J and K[4] . Sampath Kumar expressed that Art. 370 of the Constitution have never stopped to be usable, it held that there can be no test on this ground to the legitimacy of the Orders gone by the President in exercise of the forces presented by this Article.[5]

Agreements between Jammu &Kashmir and India

The instrument of accession signed as mentioned above there added various clauses and conditions in the form of an agreement between Jammu and Kashmir and India.During that that it was envisaged as temporary provisions which is now called as special status can be briefed as follows:

  1. According to this agreement, the State surrenders its autonomy in the matter of defence, external affairs and communication.
  2. The State was given the autonomy to draft its Constitution with the help of its own constituent assembly.
  3. Article 370 was temporarily added to the Constitution of India in order to make the above features effective.
  4. Jammu Kashmir was specified in the category of Part B states in the original Constitution of Indian waving back to 1950.
  5. Laws on the Union list and Concurrent list will be made by the Union only by taking consent of Jammu and Kashmir including Article 1.

The various special treatments given to the state Jammu and Kashmir are as follows:

  1. The name, area, or boundary of Jammu and Kashmir cannot be altered without the consent of the State Legislature.
  2. Part IV of the Constitution of India is not applicable here which deals with the State governments.
  3. The Residuary powers that belongs to state, except in cases of prevention of activities for example cases of terrorist activities, questioning and disrupting the sovereignty and territorial integrity of India and causing disgrace to the national flag, national anthem or the supreme law of the land.
  4. In Jammu and Kashmir right to property is still considered as a fundamental right.
  5. Even some special rights are guaranteed to permanent residents of state in respect of acquisition of immovable property, public employment, settlement and government scholarships.
  6. It is important to note that Fundamental duties and Directive Principles of state Policies are not applicable in Jammu and Kashmir.
  7. Even during national emergency because of internal disturbance will have no impact here except with the concurrence of state government.
  8. In Jammu and Kashmir financial emergency cannot be declared.
  9. The High Court of Jammu and Kashmir is only allowed to issue writs for Fundamental rights enforcement and cannot issue any other writs.
  10. Citizenship rights cannot be denied of migrants to Pakistan.
  11. The 5th and 6th schedule of Indian Constitution are not applicable in Jammu and Kashmir.
  12. Official language provisions are applicable only how much they can relate to the official language of the State.
  13. Any amendment made to the Constitution of India does not apply to jammu and Kashmir unless it is extended to it by a Presidential Order.
  14. President rule can be applied only on the ground of failure of constitutional machinery of state constitution and not of Indian constitution.
  15. The consent of State legislature is also taken into account in matter of international treaties or agreements.

It is a high time that relation between Jammu and Kashmir and India must be harmonized as fast as possible in order to have a peaceful India. The forever controversial issue must be resolved in order to develop and prosper in the contemporary world in all fields. The panacea lies in resolving this conflict by making it a priority without compromising the integrity and security of India because if an organ of a body is damaged then that affects the whole body and the whole body cannot properly function. In the same way if India is considered as “Bharat Maa” Jammu and Kashmir is supposed to be her head and if such a vital organ does not function well, India can never be at peace.

Special Status to Jammu and Kashmir: A necessary Evil

Arguments in Favour of Special Status to Jammu and Kashmir

  1. The local people will lose their job if migrants go to Jammu and Kashmir and their special status is curbed out.
  2. The local people have to migrate and will lose their properties if people of other states start purchasing their properties.
  3. They have their own constitution and laws with respect to many matters. This might become suddenly a very drastic change for them too to adapt.
  4. It was the agreement made in October,1947 that had led it to surrender their autonomy to India and these were the conditions which were signed during that time, if not respected can altogether might lead to a new revolution.
  5. There will be opposition from Hindu dominated Jammu and Muslim dominated Kashmir.
  6. The business community will take up the entire business sector loosing scope for the local business community and they will be sidelined.That might be lethargic for the state’s economy.

Arguments Against Special Status to Jammu and Kashmir

The Parliament can make any laws for the State only with the consent of the State legislature which in itself is discriminating in nature between the States.The Union also cannot make laws on preventive detention laws for Jammu and Kashmir,it can be done only by its State legislature.

Financial emergency cannot be declared in this Sate in case of internal disturbances. Emergency can only be declared case of war or external aggression.

Directive Principle of State Policy and Fundamental Rights are not applicable to Jammu and Kashmir.

Till date the people here enjoy the right to property as a fundamental right.

Jammu and Kashmir does not have to give a detailed account of the amount of money that flows into the State and its purpose and usage.  

Indian citizens even from other states cannot purchase property in Jammu and Kashmir.

The order of the Apex court i.e the Supreme Court of India has no validity within Jammu and Kashmir.

The citizens of Jammu and Kashmir have dual citizenship.

Term of Jammu Kashmir’s assembly’s election is 6 years whereas it is 5 years for the other States.

Article 370 allows a Pakistani to get Indian citizenship who marries a Kashmiri girl.

In a PIL[6] of an NGO against the special status to Jammu and Kashmir with the plea that it is discriminating against the non-residents to public policies, jobs and restricting them to take part in real estate business the apex court held, “Article 370 though titled as ‘Temporary Provision’ and included in Para XXI titled ‘Temporary, Transitional and Special Provisions’ has assumed place of permanence in the Constitution,” it observed. “It [Article 370] is beyond amendment, repeal or abrogation, in as much as the Constituent Assembly of the State before its dissolution did not recommend its Amendment or repeal”.The learned scholar A G Noorani states in his article “Article 35A is beyond challenge. In India the lust for uniformity possesses communal-minded majoritarian” that “The judgment delivered by Justices Muzaffar Hussain Attar and Ali Mohammad Magrey of the High Court of Jammu & Kashmir on 16 July 2015, is of historic significance, quite apart from its cogent analyses; especially of Articles 370 and 35A”.

Analyzing the Issue: Human Rights, Unity and Integrity, Federalism and Equality

Back in 1947 with the development of an agreement in a state of war certain conditions were made. The people who signed such an agreement, practically it was not possible for them to think about the same even after 30-40 years. And today in 2018,its more than 70 years of independence and still we the Indians have not yet been able to cure a vital organ of our mother India. This issue is not only a hindrance to the development of India but also because of this each and every rights of the people in Jammu and Kashmir are being violated. There are mass killing of people and the violation of their basic human rights. When there is an open fire between the army of both the States, ultimately those who suffer in not only the Indian Army but also the innocent common people in Kashmir who have no fault at all.

In a democratic country like India where we have a most diversified country in terms of culture, religion, caste, creed, languages but still stand together as Indians, such issues like Kashmir is a threat to our unity and integrity. It is a matter of great concern that this issue not only is diving us demographically but also politically, religiously, economically and socially too.

Federalism is one of the basic features of the Indian Constitution where there is distribution of power between the centre and the States. But in case of Jammu and Kashmir the centre or union has a very limited power to make, execute and interpret the law of this State. For the Union to make any act or policy to be applicable there except those three matters it has to get the consent of the State legislature and it should be done through Presidential Order only. This is also a threat to the very essence of federalism in India.


[1] Article 35A and the Future of Stability in Kashmir, Dhruv C Katoch

[2] Article 35A: Implications for Jammu and Kashmir, Rights Policy Watch, Volume 7, Issue 04

[3] 1959AIR 759

[4] 1969 AIR 1153

[5] Ibid

[6] Ashok Kumar & others v State of Jammu & Kashmir & Ors., SWP no.1290/2014

RELIGIOUS DENOMINATION UNDER THE INDIAN CONSTITUTION: A SPECIAL REFERENCE TO THE SABARIMALA CASE- Shubham Kashyap Kalita & Tripti Kejriwal.


ISSN : 2581-8465 R

Author : Shubham Kashyap Kalita

National Law University, Assam

Co-Author : Tripti Kejriwal

ABSTRACT

The Constitution of India provides for certain rights and liberties along with the power to control and enjoy such liberties and rights subject to certain restrictions. The right to freedom of religion as enshrined to the citizens of India provided under Article 25 of the Indian Constitution is exposed to certain limitations along with the liberty to propagate and practice any religion. In the name of religion, it is not expected that each and every person commits acts as according to his own very whims and fancies without considering the well being of the society at large. This does not necessarily bring into picture that religion is ungovernable or turbulent. It has its well defined aspects and ambit which limits the act of people practicing such religion. There needs to be barriers put on the question of application of religion so that the value and dignity of the institution holds does not get surpassed or misappropriated.

Indiscrimination in gender aspects and non gender neutrality has been practiced since time immemorial. Restrictions on women in the various spheres of life have always remained one of the most contended issues. The issue of late that has been in trend is the obstacle faced by the women community to entry to religious places of worship. The ongoing protests and movements taking place across the country have culminated these concerns to a great extent and as a result of which there are numerous petitions being filed raising their contentions in this regard.  The need of the hour is to listen to the suppressed voices of the women and provide for their upliftment. Hence, the courts are trying to uphold the rights of women so as to provide them equality and freedom of religion there by striking down and doing away with the restrictions imposed on them.

The present paper provides one such analysis of the Sabarimala temple entry case, thereby throwing light on the various interpretations to it and principles advocated in the case for banning entry of women in the temple. It also projects and incorporates the constitutionality embedded in the Article 25 and Article 26.

Keywords: Article 26, Religious Denomination, Sabarimala, Constitutionality, Discrimination.

RELIGIOUS DENOMINATION UNDER THE INDIAN CONSTITUTION

India is a secular country provided under the Indian Constitution and does not possess any state religion. We all know that religion has somehow direct or indirect impact on our lives. And India is a country with diverse religions with diverse religious beliefs. The Constitution of India has guaranteed religious freedom as an individual right to all the persons residing in India. The Part III of the Constitution distinctly guarantees fundamental freedom of religion under Article 25[1] and 26. Article 25 guarantees individual right to practice, profess and propagate religion and Article 26[2] guarantees religious denominations or Sections.

Relation between Article 25 and Article 26:

Article 25 guarantees individual rights to the citizens while on the other hand Article 26 guarantees rights to a particular group or Section. Also, the term in Article 25 “to the other provisions of this part” expressly if not impliedly put a limitation in its operation. However, there is no such clause in Article 26 which is only subjected to ‘public order, morality and public health’. It can be concluded from above that Article 26 is not subjected to the provisions of Article 25. The Supreme Court of India in its judgment at Sri Venkataramana Devaru and Ors. v. The State of Mysore & Ors[3] declared that Article 25(2)[4] have a wider scope of application and Article 26 must capitulate to the restrictions enumerated in Article 25 in such a way that the right granted under Article 26 does not affect the rights provided in Article 25.

From the relation between Article 25 and Article 26, the simple difference can be sought that is Article 25 does not talk about religious denomination whereas Article 26 guarantees religious denomination. But what has been left aside is that the Constitution does not define ‘religious denomination’. Religious denomination has been a controversial and ambiguous part of the Article 26. In the landmark judgment of the Commissioner Religious Hindu Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[5], denomination has been explained which says that “denomination is a collection of individuals, classed together under the same name; now almost always specifically, specially a religious sect or body having a common faith and organization and designated by a distinctive name.”

Thus it can be inferred from the above case that denomination has three essential elements:

1) Common faith

2) Common Organization

3) Distinctive name; it categorizes as a religious denomination.

So if a community is to be designated as a religious denomination, then they have to contain all these three elements otherwise they will cease to be called as religious denomination. Now tracing back to the history of this Article from where it has been originated, we all know that Indian Constitution is a handpicked of various constitutions of different nations. We need to look from where does this unique Article originated and placed in the constitution.  Article 26 is basically derived from Article 44[6] of the Irish Constitution, 1937. And this Article 44, in turn, was based on Article 114[7] of the Constitution of Poland, 1921. The term “Religious Denomination” in Article 44.1.3[8] set forth some specific denominations like the Presbyterian Church in Ireland, the Methodist Church, and Jewish congregations and so on. Therefore, Article 26 has been adopted from the Irish Constitution. However, there was a change in the Article as put forward by KM Munshi in the Constituent Assembly which inducted the phrase “any Section thereof”. Why this phrase has been included? The reason being that the rights conferred under Article 26 were made available to any “religious denomination or any Section thereof”.

The expression “religious denomination” is considered to be of Judeo-Christian origin and used in the context of denominations that practices in Christianity. If we take the context of Hinduism, we will not encounter any kind of sub-divisions of this religion into distinct components, it is a true notion of religious denomination. It often says that Hinduism is a way of life rather being a religion. In Yagnapurushdasji v. Muldas[9], Chief Justice Gajnedragadkar described Hinduism as “the title applied to that form of religion which prevails among the vast majority of the present population of the Indian Empire”. Here it has been depicted that when we look for the Hindu religion, it is totally difficult to define or even describe it properly. As compare to other religions in the world, the Hindu religion does not possess any one particular prophet nor does it worship any one God. It also does not believe in any particular philosophic concept or dogma nor does it follow any one specific set of religious rites or performances. It is concluded that the Hinduism is a way of life and nothing else. Adhering to the above statement “Hindu religion as a way of life”, the followers of this religion cannot be specified as denominations only because of the fact that they serve a common faith and organization or a distinct name.

If we interpret Article 26[10] literally, it can be observed that the Article confines itself to religious denomination. But the rights therein can be extended to religious institutions as well and any Section thereof. The religious institutions are entitled to own and acquire movable and immovable property as well and also to other rights mentioned therein. Further, if we look into the scope of Article 26, it can be observed that the term ‘denomination’ can also be used to refer to those members who form a particular or sub-sect of a religion which is recognized by a distinctive name. So the religious denomination has a wider scope and various interpretations can be sought by referring to this Article.

MAINTENANCE OF RELIGIOUS ISSUES UNDER ARTICLE 26

Article 26 of the Indian Constitution enshrines some fundamental rights to the citizens of India with regards to the freedom to manage religious affairs which is subject to public order, morality and health. Thus, it constitutes that every religious denomination or any Section thereof shall have the right to – (a) establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law. [11]

The words ‘establish and administer’ must be read conjunctively and therefore, where an institution has been established by a religious denomination, it can claim the right to maintain the same as well.[12] Thus, every religious denomination can maintain its supremacy over the religious institutions only if it has established it. This was questioned in the Azeez Basha case[13], it was held that the Muslims could not claim the right to maintain Aligarh Muslim University as it was established under a statute and not by the Muslim minority.

Further, under the ambit of management of religious matters as given in clause (b) of Article 26[14], it has been stated that the religious denominations or Sections have the right to manage its own affairs in the ‘matters of religions’ which is synonym to ‘religion’ in Article 25(1).[15] In the case of Durgah Committee, Ajmer v. Syed Hussain Ali[16], the religion should treat certain practices as its integral and dominant part so that other purely secular practices, not being essential part of the religion often get coated with a religious form and may claim to be dominant parts of the religion. This can happen vividly in case of religious practices superstitious beliefs which may be unessential for a religion, but claim to constitute integral parts. Thus, the court held that such practice needs to be properly scrutinized.

The state do not hold arbitrary and absolute power concerned with the right to manage religious matters, but can interfere when certain acts that run counter to morality, health and public order, which may be detrimental to public interests at large. Thus, the state can exercise its power for administering the religious institutions but cannot use the assets of the temple or perform such other deeds which may prove beneficial to people of other faiths. Thus, secular practices, economic practices and political practices associated with the religious institution are to be regulated by the state in accordance to the law.

As in the case of Bira Kishore Devi v. State of Orissa[17], the management of the secular activity of the Jagannath temple was taken from the Raja of Puri and was vested to the committee constituted under the Shri Jagannath Temple Act. [18]It was held by the court that the Act was valid as it did not affect the religious integrities and aspects.

The state cannot override religious injunctions that prohibits or restricts certain classes from entering into religious institutions or temples. However, this power is applied to religious institutions or temples of public character founded for the safeguard and benefit for particular Sections of the Hindus.

What constitutes an essential part of religion or religious practice has to be decided by the courts with reference to doctrines and tenets of that particular religion.[19]

Article 26 can be regarded as a complement to Article 25 of the Indian Constitution. The essence of Article 26 lies in safeguarding or dealing with rights of the religious denomination, both majority and minority and not with the rights of individuals.

In accordance with the practice of restricting the entry of outsiders in the Hindu temples during hours when the idol is at rest or to places where the deity is located, the law interfering in such practices can be declared as unconstitutional. Hindu open temples are public places and provide access to all classes and Sections or denominations. This right conferred to the public is not unlimited. In the case of Venkataramana v. State of Mysore,[20] it was held by the Supreme Court in India that no Hindu can claim that the temples should be accessible at all times of the day, nor the individuals themselves would be given the opportunity to perform all the services that the priests perform. Thus the rights enshrined under the Article 26 is also regulated or governed by certain restrictions and limitations.

In the Venkataramana[21]case, there was restriction imposed on the harijans to enter the temples of the Hindus. The Madras Temple Entry Authorization Act, 1947 [22]was enacted and the Government passed an order contending that the act could only be applied to a temple belonging to the Godwa Saraswati Brahmin Community. As a consequence, the trustees of the temple filed a suit opining that the decision as to who is entitled to take part in the worship is a matter of religion and as such providing access to all communities would violate their right. The Supreme Court held that the practices considered by the community as a part of their religion also constitutes matters of religion. Thus, a balance needs to be created between religious liberty of individuals and the social control in order to make the society harmonize and establish stability.

There is freedom provided to practice any religion or conduct any religious acts subject to the provisions of law so that it does not, in any manner, run counter to public order, morality and health. The essence of Article narrates to curb all immoral acts performed in the name of religious freedom such as gambling, sati system, etc. Also, the benefit of the rights guaranteed should not only be limited to the majority and should be declared to the minority groups as well. These broaden the scope of Article 26 of the Constitution in terms of safeguarding public rights and interests.

ANALYSIS OF THE SABARIMALA TEMPLE ENTRY CASE

Sabarimala is one of the most renowned and famous pilgrimage temples for the Hindus situated at the Periyar Tiger Reserve at Pathanamthitta district of Kerela. Lord Ayyappa is considered to be the presiding deity there, who was considered to be born out of a union between Lord Shiva and the mythical Mohini, which is also believed as an avatar of Lord Vishnu. The issue arises there as it prohibits women of age 10-50 years from entering the temple.  This was first challenged in 1991 before the Kerela High Court in the case of S Mahendran v The Secretary, Travancore [23]where the court held that the ban was constitutional and justified on the ground that it was a long-decade custom prevailing since time immemorial. Again in 2006, Indian Young Lawyers Association come up with the same issue before the Supreme Court filing a PIL challenging the custom of excluding women from the temple premises. Their prime contention was that the custom of banning women entry clearly violates the right to equality under Article 14 along with freedom of religion under Article 25. Thereafter, the matter was referred to a three-judge bench on 7th March 2008 and it appeared for hearing seven years later i.e. on 11th January 2016. The case was further referred to Constitution Bench on 20th February 2017. [24]The entire case can be well interpreted with five major issues:

(1) Whether exclusion of women from entering the Sabarimala temple which is based on biological factors leads to “discrimination”, and thereby violates Article 14, 15 and 17 of the Constitution?

(2) Whether Sabarimala Temple can be designated as a separate religious denomination?

(3) Is exclusion of women from entering the Sabarimala temple premises amounts to an essential part of religion?

(4) Is Lord Ayyappa, the presiding deity of Sabarimala Temple is protected by ‘morality’ as used in Article 25 and 26 of the Constitution which guarantees freedom of religion?

(5) Is the rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules unconstitutional?

 VIOLATION OF ARTICLE 14, 15 and 17:

“The horizontal rule of fundamental rights is in no manner separate and is rather an interdependent chain forming a part of the Indian Constitution.”  

Article 14[25] provides for the equality before law which states that “everyone is equal before law and everyone is equally protected by law within the territory of India.” The prohibition of women of menstrual age clearly violates Article 14 as the Supreme Court also observed that the right of women to pray is equal to the right of a man. Further, Article 15[26] puts a prohibition on any kind of discrimination ranging from caste, race, sex, place of birth. Exclusion of women based on her sex is a clear discrimination of gender which directly violates Article 15 of the Constitution along with Article 17[27] which abolished untouchability. Banning women of menstrual age from entering the temple premises shows the ideology of purity and pollution as women of menstrual age is considered to be impure and polluted which is a clear violation of the constitutional right against untouchability. Why there exists a belief of exclusion of women of menstrual age? Is it simply because of the reason that Lord Ayyappa practice celibacy? Through observation, it can be seen that women are banned because of the orthodox Hindu texts.

The stigma on women of being associated by the impure elements in the period of menstruation leaves a huge psychological trauma on the part of the feminine gender and poses a great hindrance to the continuous flow of living. The practice of the women being ostracized by the society as a whole, including their family members seems to largely violate Article 15(1)[28] of the Constitution.

The practiced customs that constitute a derogatory notion about women being impure and thus, then making them a victim of outcast to the society leads on to the violation of the principles of gender justice as well as equality enshrined in the Article 14 and Article 15.

A main point of content is that the state should refrain from all such activities relating to customs, traditions or religious considerations and perform their obligation of enabling every person to enjoy their rights. As in the case of Shayara Bano v. Union of India[29] , it has been laid down that a codified custom should be deemed unconstitutional on the ground of manifest arbitrariness.

Banning the women of the age who menstruates constituted to attributing the trait of weakness to women thereby posing an outcast to their dignity. The prohibition, as in the opinion of J. Chandrachud is inconsistent with the Articles thus mentioned and hence should be struck down. On the other hand, J. Malhotra upheld constitutional validity of the prohibition. She opined that unless and until a practice is regarded as a social evil, it cannot be struck down and hence should not be interfered with. She believed that the imposed restriction was practical way of achieving the objective. She also pointed out that the courts do not have the authority to determine the validity of religious beliefs. It can be inferred that giving such monopoly to the religious authorities might lead to misuse of power by them.

As in case of Article 17[30], which deals with the “abolishment of untouchability”, it has been seen that this right is also violated as the case necessarily deals with the aspect of women’s purity and impurity during the menstrual cycle. The essence of Article 17 is related to the pollution and impurity associated with the caste system, and the outlook of menstruating women runs parallel to the same notion, thus proving violation of Article 17.

But, opinions contradict and dissenting views point out that the ambit and scope of Article 17 does not imply to women in particular. Hence, the clear dimensions need to be sorted in order to declare the judgment unconstitutional and inappropriate in a situation which lacks in precedents and statutes regarding the same.

CONSIDERATION AS A SEPARATE RELIGIOUS DENOMINATION:

The struck down of the decade long tradition by the Constitution Bench which put a ban on women entry in the Sabarimala temple of Lord Ayyappa as it violates the fundamental rights of women guaranteed by the Constitution. A question has been raised by the court that whether the followers of Lord Ayappa formed a separate religious denomination where they held that the devotees of Ayyappa do not constitute a separate religious denomination. The only dissenting judge was Justice Indu Malhotra, who was of the view that Ayyappa devotees do form a separate denomination.

To constitute a religious denomination, the judges have put forward three conditions which is required to be met; (1) it must comprise of persons who have a common faith, common organization and recognized by a distinct name. J Chandrachud added one more condition to it that has been emerged from the narratives of judicial precedents i.e. a common set of religious tenets. He also stated that “Religion is what binds a religious denomination. A religious denomination is not the resultant of a caste, community and social status. [31]Adhering to the three folded test, the first condition was not fulfilled as required. The judges held that the devotees from all religions who worship the temple do not necessarily be a part of that religion. Devotees from other religion also worship the temple without ceasing to be a part of that religion. They put the example of Hindus who worship Ayyappa as a part of the Hindu religious practices and not as separate denomination.[32] Also there is no religious tenant notable to Ayyappa devotees. Moreover, it is seen that since the exclusion of women had not been consistently followed, therefore the exclusion of women cannot be considered as their common religious belief.  However, J Malhotra had a dissenting view regarding this; she held that the following of a 41 day ‘Vratham’ and exclusion of women between 10-50 years can be considered as an identifiable customs and usages, which are originated on the common faith of the deity being a ‘Naisthik Bhramachari’. Thus it fulfilled the first condition.[33]

The Court also reasoned that since persons of all religious beliefs visit the Dargah considering as a place of pilgrimage does not amount to constitute a religious denomination.[34] He also stated that “religion was not the basis of a collective of devotees’ and one could not be designated as a religious denomination without having a religious identity.”[35]Further, the judges also observed that the second and third condition was not fulfilled as well. They held that since there is no specific group called as Ayyappans (as claimed by respondents), the temple is devoted to the general public and represents the plural character of the society as everyone can worship at the temple irrespective of their religious belief.[36] So there is no common organization of worshippers and along with it, the third condition failed as there is no distinguished name for the worshippers. [37] While throughout the fulfilling of the test, J Malhotra had a contradicting view as she defended the second and third condition along with the first one. She held that as the temple owned enormous properties, which were taken over by the state owing to the obligation of paying indemnities and also it was maintained by the Travancore Devaswom Board. She also stated that there are distinctive names for the devotees of Lord Ayyappa such as the male devotees are called as ‘Ayyappans’, female devotees below 10 and above 50 as ‘Mallikapurnams’, and collectively they are called as ‘Ayyappaswamis’ who follow the Ayyappan Dharma.

ESSENTIAL RELIGIOUS PRACTICE:

In order to arrive at a conclusion as to whether the practice of exclusion of women of a particular age is an essential part of the religion and thus has to be protected under Article 25 of the Constitution, the “essential religious practice test” has been used for a long. This test does not originate from the Constitution as Article 25 only deals with the limitations relating to public order, morality and health, and other fundamental rights.[38] This test has been incorporated by the Supreme Court which is sharply based on Dr. B.R. Ambedkar’s speech in the Constituent Assembly debates.[39] While arriving at the conclusion, Hon’ble Chief Justice Dipak Mishra sharply relied on two terms i.e., ‘proximate evolution’ and a ‘continuity in practice’ which is in question as a test. Misra J brought the second Ananda Margi case[40] to state that the practice of exclusion was never a continued existence and started only after the subordinate legislation has been enacted. The respondents had put on argument while supporting the ban on entry that until the enactment of the rules regarding the ban, it was loosely enforced. From this argument, Misra J concluded that the ban on entry is an ‘alterable part or practice’ and it does not form the core part of the religion from where the religion is founded upon. Adding to this, he also pointed out that the practice is not based on any scripture for claiming the right and thus the status of “essential practice” has been denied relying on the finding that it does not have the ‘unhindered continuity’.[41]

Further, Nariman J. observed that the ban on entry of women as essential practice is irrelevant and also unnecessary augmentation cannot be considered as essential part of religion. He opined that “The Court should take a common-sense view and be actuated by considerations of practical necessity.”[42]Through this he pointed out that the practice of exclusion of women is not practically necessary and therefore can be struck down as the ban on entry is unconstitutional under Article 25(1). [43] He  also hold that the fundamental rights claimed by the worshippers of the institution which is based on custom and usage under Article 25(1)[44], must capitulate to the fundamental right of such women, as they are also equally entitled to the right to practice religion.[45] Chandrachud J. has observed that the practice is predetermined upon the physiology of women which can be considered to be a disability imposed upon them and therefore the Constitution seeks to prevent in its various forms. He also raised a basic question as to “whether the recognition of rights that has been inherited in religious denominations can impact upon the fundamental values of dignity, liberty and equality which constitute the soul of the Constitution.”[46] And the dissenting judgment delivered by Indu Malhotra J. by observing that the court is not authorized to determine the rationality of the religious beliefs or practices, except in the case ‘if they are pernicious, oppressive, or a social evil, like Sati’ rejected the intervention of the court under Article 25(2)(b) .[47]

After viewing all the incentives of the judges, it is observed that the exclusion of women is not an essential part of the religion and is clearly violate the fundamental rights of the women. But in my opinion, the essential practices test is somehow arbitrary in nature and the Court has adopted without any references to any legislation. The exclusion of women is not an essential practice of religion but merely the consequences arises of an essential practice of the Hindu religion which is basically the right of the institution to determine who are entitled to enter into the temple and how the worship is to be conducted.  And if the institution does not have the right to regulate who are permitted to enter their premises then that is contrary to the observations made in the Sri Venkataramana Devaru Case.[48] Also if the “essential practice of religion test” has to be applied to each practice and at a temple level then the Courts will be burdened with litigation and will have to deal with the customs and practices of the temples/deities at a individual level which is ideally not considered to be the function of the courts.

IS LORD AYYAPPA PROTECTED BY “MORALITY” UNDER ARTICLE 25 AND 26 OF THE CONSTITUTION:

A five judge constitution bench headed by J Dipak Misra was put forward an issue where it has been asked about the protection of Lord Ayyappa’s morality under Article 25 and 26 of the Constitution. It has been argued before the court that Lord Ayyappa is characterized as ‘Naishtika Brahmachari’ (eternal celibate) is protected by the Constitution. People who are coming to the temple shouldn’t be in company with young women. The reason behind it is that whoever is coming to the temple must not simply follow the celibacy but it must also appear to follow. Further, it has been argued that Article 25(2)[49] which throws an open way for all classes and Sections of society to access public Hindu religious institutions, which can be applied only to social reforms and cannot be applied in matters of religion provided under Article 26(b) [50]of the Constitution.  While the bench asked “What will happen, if the state makes a law to bring about social reforms and allow the entry of women in the temple?” It has been argued that the unique character of the deity has to be put on consideration while deciding the constitutional validity of a practice which is followed from decades. A special focus has been traced to Article 15(2) [51]of the Constitution, where there is no mentioning of public temples.  The court is required to listen to the voices of the both of the activist and the ones who are trying to protect their traditions. It has been put forwarded that the very character of the religious institution would be irreparably altered by abolishing the practice and would directly violate the rights of the devotees under Article 25(1). [52]

The morality that has been incorporated in Article 25 and 26 of the Constitution is subject to public morality. The practice of excluding women is against the public morality and a clear violation of the constitutional rights of the women. The Court already held at the starting that the matter will be decided according to constitutional ethos rather than any state legislation. Further, if something has to be an essential religious practice then it must be originated with the religion but exclusion of women is not something which has been in practice since the time immemorial. Therefore, it’s not an essential religious practice. Also, if we look at the definition of celibacy, it has been stated that “It is a voluntary choice to stay unmarried or engage in any form of sexual activity, usually in order to fulfill a religious vow”.[53] If Lord Ayyappa is a celibate and therefore to preserve his sanctity women of 10-50 years of age are being prohibited from entering the temple, then what about the male devotees? Do all the male devotees who go there to worship practice celibacy? If that is not the case, then why women are being prohibited from worshipping there? Don’t you go to Church where the sisters practice celibacy? Are we being prohibited from entering there? Celibacy is the state where you stay unmarried and dejected from any form of sexual relations rather excluding women to maintain celibacy? Not only men practice celibacy, women too practice it.  So there is no question of morality of the deity which is to be protected by the Constitution rather protecting the constitutional morality by striking down the discriminative tradition of exclusion of women.

CONSTITUTIONALITY OF THE RULE 3(B) OF THE KERELA HINDU PLACES OF PUBLIC WORSHIP (AUTHORIZATION OF ENTRY) RULES:

Delving towards Section 3[54] of the Kerala Hindu Place of Public Worship (Authorization of Entry) Act,1965[55], which states that “places of public worship which are open to Hindus shall be open to all Sections and classes of Hindus.” Further, Section 4[56] of the act which confers the power to the state to make regulation for the particular temple with the authority which is in charge of a public places i.e. in this case, the Sabarimala’s temple authority. A proviso has also been stipulated stating “no regulation made under this Section shall discriminate against any Hindu for belonging to a particular class or Section.” Now, the state legislature has made a rule i.e. rule 3(b) [57]under Section 4 which states that women are not allowed to offer worship in any public worshipping place at such a time which they are being prohibited by custom and usage. This rule has been struck down by the judges considering it to be ultra vires and unconstitutional in nature.  J Misra and J Chandrachud referred to Section 2(a)[58] and 2(c)[59] of the said act which defines ‘Hindu’ and ‘Section or classes’ respectively to examine who all comes under the purview of this act. They observed that women come under the said act as they form a ‘Section or class’ as incorporated in this act. J Chandrachud also added that the long title of the act glorify the fundamental objective of bringing social reform in the society and do away with all forms of exclusionary practices practiced in Hindu temples in Kerala. Thus, they held that the act was applicable to women and was intended for their benefit.

The act is not unconstitutional rather the Rule 3(b) which justifies the prohibition on entry of women is unconstitutional.  J Misra observed that if any statute is delegating the rule making power to an authority, then the aforesaid power has to be exercised within the ambit of the statute. J Chandrachud adding to J Misra further opined that Rule3(b) was in direct contravention to the proviso of Section 4[60] as it discriminated against a particular class or Section of Hindus which is prohibited under the aforesaid Section.  Also J. Nariman referred to Article 25 which confers freedom of conscience and right to enter the temple and worship their deity is being violated by the exclusion practice of Sabarimala. Only Malhotra had a dissenting view who concluded that as Sabarimala temple constitutes a religious denomination, so the temple was covered by the exception put on Section 3[61] and therefore Rule 3(b) [62]was not ultra vires of the act.

CONCLUSION

The analysis and interpretation as has been duly submitted deeply aggravates the fact of the idea of religion getting narrowed down to its very core. The purity and chastity attached with the institution of religion has started losing its grounds due to the unbridled judicial intervention and the significant roles of the legal institutions, in the action of curbing discrimination and bringing out enlightenment of social justice. The Sabarimala case that has been vividly discussed has a variegated approach altogether. It is a golden opportunity for the Supreme Court which strengthens the issue of gender equality in India and focuses on providing a better and a more firm ground to the apex courts in order to establish a base which would lead to effective horizontal application of fundamental rights to all the citizens thereby upholding the integrity and value of such rights as provided by the Indian Constitution.

In conformity to the lights of various versions that has been held in this judgment, the different approaches has rendered a broader view for the representation of the Article 25 and Article 26 of the Constitution whereby there has been major reliance on incorporating the constitutional morality in one aspect and holding on to safeguard the fundamental rights as the other aspect with the thought of showing gender neutrality. The case thus takes into account the issue of upholding the rights and respect of the feminine gender by accepting and breaking down certain obstacles coming midway, thereby setting up a strong and firm platform for women in society. It well defines the scope of the essential components that comes within the ambit of the various articles of the Constitution along with their order of interpretation and clarifies their jurisprudences.

References:

  • Neha Chauhan, Religious Conversion and Freedom of Religion in India: Debates and Dilemmas, ILI Law Review, Vol.I, Summer Issue 2017.
  • Faizan Mustafa & Jagteshwar Singh Sohi, Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy, BYU Law Review, Volume 2017, Article 9, Issue 4.
  • Rashi Sharma, Religious Denomination under the Indian Constitution, I pleaders (Accessed on 15th December 2018, 8:30 PM), https://blog.ipleaders.in/religious-denominations-indian-constitution/.
  • Arvind P Datar, The Irish Origins of “religious denomination” in Article 26, Bar and Bench, (Accessed on 10th December 2018, 9:45 PM), https://barandbench.com/irish-origins-religious-denomination-article-26-arvind-datar/.
  • Supreme Court Judgment, Indian Young Lawyers Association and Ors. v. State of Kerala and Ors., https://www.sci.gov.in/supremecourt/2006/18956/18956_2006_Judgement_28-Sep-2018.pdf.
  • Robert Longley, Understanding Celibacy, ThoughtCo., (25th December 2018, 9:00 PM), https://www.thoughtco.com/celibacy-abstinence-chastity-difference-4156422. 
  • Debayan Roy, Sabarimala Case in Supreme Court: From Key Issues to Kerela Govt’s Stand, Here’s All You Need To Know, News18.com, https://www.news18.com/news/india/tv-anchor-falls-to-death-from-her-fourth-floor-flat-in-noida-cops-say-she-was-drunk-1973917.html. (7th December 2018, 9:15 PM).

[1] Indian Const. Article 25: provided freedom to profess, practice and propagate religion.

(1) All persons are equally entitled to profess, practice and propagate religion and according to their own conscience subject to public order, morality and health;

(2) Nothing in this article shall affect in the operation of any existing law or prevent the state from implementing or making any law;

(a) regulating or restricting any economic, financial, political or any secular activity which may be in some way associated with religious practice;

(b) Providing for social welfare and reform along with the keeping open of the Hindu religious institutions which is of a public character to all classes and Sections of Hindus.

[2] Indian Const. Article 26: provided the freedom to manage religious affairs subject to public order, morality and health and every religious denomination or any Section thereof shall possess the right

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own religious  affairs;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in adherence to law.

[3]Sri Venkataramana Devaru andOrs. v. The State of Mysore & Ors; 1958 AIR 255.

[4] Supra Note. 1, Art.25.

[5] Commissioner Religious Hindu Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt; 1954 AIR 282, 1954 SCR 1005.

[6] Irish Constitution, 1937, Article 44: provided rights for freedom of religion.

1. (1) the state acknowledges public worship and directs to respect and honour religion.

     (2)Recognition of the special position holds by the Holy Catholic Apostolic and Roman Church as the guardian of the faith as professed by the majority of the citizens.

     (3) Recognized all the communities as religious denomination which exists in Ireland at the date of the coming into operation of this Constitution.

2.  (1) provided freedom of conscience and to profess, practice and propagate religion which is subject to public order and morality subject to every citizen.

     (2) The State guarantees not to endow any religion.

      (3) The State is barred from imposing any kind of disabilities or any discrimination on the ground of religious profession, belief or status.

      (4) State aid for schools shall not be discriminatory on the grounds of different religious denomination and also not to affect the right of any child prejudicially to attend a school receiving public money without attending religious instruction at that school.

      (5) Every religious denomination has the right to manage its own religious affairs, own, acquire and administer property, whether movable or immovable, and maintain institutions for religious or charitable purposes.

      (6) the property of any religious denomination or any educational institution shall be subjected to public utility and by paying compensation.

[7] Constitution of Poland, 1921, Article 114: Among all the enfranchised religions, The Roman Catholic religion, being the religion of the preponderant majority of the nation, occupies in the state the supreme position. The Roman Catholic Church is governed by its own laws. The relationship between the state and the church will be determined according to an agreement with the Apostolic See, which is subject to ratification by the Seym.

[8] Supra Note. 6, Art. 44.

[9] Yagnapurushdasji v. Muldas , (1959) 61 BOMLR 1016.

[10] Supra Note.2., Art.26.

[11] Supra Note. 2,Art. 26.

[12] Justice Ruma Pal and Samaraditya Pal, M P Jain Indian Constitutional Law (Lexis Nexis Butterworths Wadhwa, Nagpur, 6th edn., Rev. 2010) at p. 1327.

[13] Azeez Basha v. Union of India, AIR 1968 SC 662.

[14] Supra Note. 2, Art. 26.

[15] Supra Note.1, Art. 25.

[16] Durgah Committee, Ajmer v. Syed Hussain Ali , AIR 1961 SC 1402.

[17] Bira Kishore Devi v. State of Orissa, AIR 1964 SC 1501.

[18] Shri Jaganath Temple Act, 1954, Act No.11, Govt. of Odisha. (India)

[19] Mohd. Hanif Quraeshi v. State of Bihar, AIR 1958 SC 731; Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853; Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, AIR 2004 SC 2984.

[20] Venkataramana v. State of Mysore, A.I.R. 1958 S.C. 255. 

[21] Supra Note.19, Venkataramana.

[22] Madras Temple Entry Authorization Act, 1947, Act No.5, Tamil Nadu. (India).

[23] S Mahendran v The Secretary, Travancore, AIR 1993 Ker 42.

[24] Debayan Roy, Sabarimala Case in Supreme Court: From Key Issues to Kerela Govt’s Stand, Here’s All You Need To Know, News18.com, (7th December 2018, 9:15 PM), https://www.news18.com/news/india/tv-anchor-falls-to-death-from-her-fourth-floor-flat-in-noida-cops-say-she-was-drunk-1973917.html.

[25] Indian Const., Art.14.

[26] Indian Const., Art.15.

[27] Indian Const., Art.17.

[28] Indian Const., Art.15.

[29] Shayara Bano v. Union of India, (2017) 9 SCC 1.

[30] Indian Const., Art.17: Abolition of untouchability.

[31] Para 63, J. Chandrachud, Supreme Court Judgment.

[32] Para 26, J. Nariman, Supreme Court Judgment.

[33] Para 12.9,ii, J. Malhotra,  Supreme Court Judgment.

[34] Para 26, J. Chandrachud, Supreme Court Judgment.

[35] Para 69, J. Chandrachud, Supreme Court Judgment.

[36] Para 94, Para 69, Supreme Court Judgment.

[37] Para 27, Supreme Court Judgment.

[38] Supra Note.1., Art.25.

[39] Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR 1954 SC 282 : 1954 SCR 1005.

[40] The Commissioner of Police & Ors v. Acharya Jagdishwarananda, in this case, The Supreme Court restored the fact that taking out a Tandava dance in public carrying a trident, a skull, a knife and a live snake is not an essential part of the Ananda Margi faith and thus police could impose reasonable restrictions on such processions. The Court also held that the essential part of a religion means the core beliefs through which a religion is founded and the practices that are considered fundamental to follow a religious belief. The superstructure of religion is built upon the foundation of essential parts of practices without which, a religion will be no religion. [AIR 1991 Cal 263].

[41] Para 124, J. Misra, Supreme Court Judgment.

[42] Para 21.6, J. Nariman, Supreme Court Judgment.

[43] Supra Note.1., Art.25.

[44] Supra Note.1., Art.25.

[45] Para 28, J. Nariman, Supreme Court Judgment.

[46] Para 109, J. Chandrachud, Supreme Court Judgment.

[47] Paragraph 8.2, J. Malhotra, Supreme Court Judgment.

[48] Sri Venkataramana Devaru v. State of Mysore; AIR 1958 SC 255: 1958 SCR 895.

[49] Supra Note.1., Art.25.

[50] Supra Note.2., Art.26.

[51] Indian Const., Art.15.

[52] Supra Note.1., Art.25.

[53] Robert Longley, Understanding Celibacy, ThoughtCo., (25th December 2018, 9:00 PM), https://www.thoughtco.com/celibacy-abstinence-chastity-difference-4156422. 

[54] Hindu Places of Public Worship (Authorization of Entry) Act, 1965, Section 3: (Places of public worship to be open to all sections and classes of Hindus)Notwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform.

[55] Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965, Kerala (India).

[56] Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965, Section 4: Power to make regulations for the maintenance of order and decorum and the due performance of rites and ceremonies in places of public worship.

[57] Kerala Hindu Places of Public Worship (Authorization of entry) Rules, 1965, Rule 3: The below mentioned classes of persons shall not be entitled to offer worship in any place of public worship or bath in or use of water of any sacred tank; well, spring or water course appurtenant to a place of public worship whether situate within or outside precincts thereof, or any sacred place including a hill or hill lock, or a road, street or pathways which is requisite for obtaining access to place of public worship.

(a) Persons who are not Hindus.

(b) Women at such time during which they are not by custom and usage allowed to enter a place of public worship.

(c) Persons under pollution arising out of birth or death in their families.

(d) Drunken or disorderly persons.

(e) Persons suffering from any loathsome or contagious disease.

(f) Persons of unsound mind except when taken for worship under proper control and with the permission of the executive authority of the place of public worship concerned.

(g) Professional beggars when their entry is solely for the purpose of begging.

[58] Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965, Section.2 (a): “Hindu” includes a person professing the Buddhist, Sikh or Jaina religion.

[59] Hindu Places of Public Worship (Authorization of Entry) Act, 1965, Section.2 (c): “section or class” includes any division, sub-division, caste, sub-caste, sect or denomination whatsoever.”

[60] Supra Note.54., Section.4.

[61] Supra Note.53., Section.3.

[62] Supra Note.56., Rule 3(b).

MARITAL RAPE A CONSTITUTIONAL AND CONCEPTIONAL ANALYSIS - Akanksha Jindal & Akshdeep Gupta

Author: Akanksha Jindal & Akshdeep Gupta

Amity Law School, Noida, AUUP

ABSTRACT

Marital rape means any unwanted sexual acts by a spouse that is committed without the other person’s consent. The purpose of this paper is to discuss about the status of marital rape in our country India. The research seeks to examine the background and the present scenario of marital rape in the country. In our research paper we will discuss about the current scenario of it and also why it is like this which means why it is not a crime in India. Also, the Indian citizens are raising questions about the criminalization of marital rape in country and as a result many petitions have been filed before the court for declaring this act as a criminal offence, in our research we will cover all of such petitions and how court refused to make marital rape a criminal offence by giving unjustifiable reasons for it. At present, India is one of the 36 countries where marital rape is not a crime. The research shall further draw a comparison between the legal frameworks of India and USA pertaining to marital rape. Through this research we as authors just want to clarify the concept of marital rape and how it is accepted in our country.  As we know there is debate going on in the country for making marital rape a criminal offence but our legislation and judicial system will consider it that making amendment to the law relating to sexual offences is a very sensitive task and hence it should be dealt with accordingly.

INTRODUCTION

Spousal rape has been increased in a few years. The most important elements of Marital rape includes the mental pain of rape, the trauma of being victim of her own husband and helplessness to be calm and calm unforgettable scars of these incidents. People in India are free from crime in the streets, but women are not immune to crimes their own home not touched by anyone. Indiana University Press, in 1990 it was reported that “more than one in seven women married was raped in their marriage. According to the United Nations Population Fund more than two-thirds married women between 15 and 50 in India were married subject to forced sex, beaten, and tortured with groom.

Despite the increasing recognition of various criminal laws in India, the rape has generated over the past two to three decades. There is a need for a special law on marital rape in India, which must also be accepted with international norms on this particular issue. Women had the right to fight for protection, but her own husband, with whom she had faithfully faithful, tried to hurt and torture her by having a powerful generation without her consent, eventually spoiling her health and well-being. There is no justification or appropriateness of understanding all marriage exemptions in the present time. This article talks about the criminalization of the rape and it must be recognized by law that, irrespective of the rape, it can be analyzed. Any violent sex without the permission of the spouse will lead to rape.

CURRENT SCENARIO

If we see from the prospective of men, Fundamental Rights of men are being violated guaranteed under Part III of The Constitution of India, 1950. Article 14 of the Constitution provides Equality before Law. According to Article 14 of the Constitution ‘the state shall not deny to any person equality before the law or the equal protection of laws within the territory of India’. Article 14 embodies the general principles of Equality before law and prohibits unreasonable discrimination between persons, which is the greatest idea of equality expressed in the Preamble.

Patanjali Sastri, C.J.,[1] held that:

Equal protection of law” is corollary of first expression “equality before law” and it is difficult to imagine a situation in which the violation of equal protection of law will not be violation of equality before law

The equality clause enshrined in article 14 is of wide importance. It guarantees equality before the law or the equal protection of the laws within the territory of India. The restriction imposed by reason of a statute, however, can be upheld in the event it is held that the person to whom the same applies, forms a separate and distinct class and such classification is a reasonable one based on intelligible differentia having nexus with the object sought to be achieved[2].

Here, if the Hon’ble Court recognizes Martial Rape it will create disruption in the society. It will cause excessive interference with the institution of marriage, it is considered to be a sacred institution that forms the bedrock of our society.

Art. 15 of the Indian Constitution, 1950 states, “Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1)            The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them…….”

It has been stated in case of E.P. Ryoppa[3]

Legislation which gives a wide power to the executive to select cases for special treatment, without indicating the policy, may be set aside as volatile of equality. On the one hand, provisions which lay down policy are likely to be upheld. But, on the other hand, provisions which fail to give such guidance are likely to be invalidated”.[4]

Also, said in Chiranjit case[5] by the Apex Court “Any inequality, in order to be unconstitutional, must be actually and palpably unreasonable and arbitrary.”[6]

The classic nexus test was enunciated by S.R. Das, J. in the Anwar Ali Sarkar case[7], thus:

In order to pass the test of permissible classification two conditions must be fulfilled viz. (i) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others left out of the group, and (ii) that the differentia must have a rational relation to the objects sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct and what is necessary is that there must be nexus between them.”

Here, the classification done is not permissible and moreover, there’s misuse of this classification. If the people for whose protection these laws are made are misusing these laws for their own personal gain and misguiding court with their false complaints[8]. By this not only husband but his family suffers even when they are innocent. The basic concept of our Criminal Jurisprudence is that let the 100 culprits may go free but no innocent should be punished. Even this concept gets violated.

The Matrimonial Laws are being misused by the individuals for whose “protection” those laws were enacted. The Right to life and liberty assured under Art.21[9] of the Indian Constitution is also violated.  Here not only the right of the accused husbands but also effects the entire family[10] where in following a marital discord. Where earlier with only a testimony of the wife, the husband and family members are put behind bars, due to the misuse of law the Hon’ble court has directed the police not to arrest with a mere complaint against the husband and family members[11]. After the complaint, they are pressurized for huge sums for an out of Court settlements such laws have become a sword rather than a shield and with further amendment by removing the exception in S.  375 of IPC, 1860, this sword is likely to become more disastrous.

In Sushil kumar v. Union of India[12][13], it was submitted that

“……Misuse of the provision is judicially acknowledged and there is need to adopt   measures to prevent such misuse, they come across a large number of complaints which are not bonafide and filled with oblique motive…..”.[14]

 In 2016[15], 6745 cases under IPC 498a were considered false as per the final report. 2958 cases were considered as a mistake of facts. 8308 were considered with insufficient Evidence.

According to Delhi commission for women 53.2%of cases registered are false[16].

Here in such cases the Right to Live with Dignity[17] of men is violated and any sum of money cannot compensate the mental and physical harassment suffered by the husband. Kharak Singh[18] has correctly held that the content of the expression ‘life’ under Art. 21 mean not merely the right to a person’s “animal existence” and that the expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a person’s home or an intrusion into personal security, also correctly laid down that the dignity of the individual must lend content to the meaning of ‘personal liberty’. Just and fair procedure is also a part of Fundamental Right to Life[19].

EXCEPTION 2 OF SECTION 375 (IPC): BONE OR A BANE

Furthermore, Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.[20]

The widespread #metoomovement, in this movement there were many false cases which hampered the process of law and one such instance is of the Duke Lacrosse players and the former football player whose alleged victim later admitted she wasn’t raped. And after this #protectourboys movement was started. Even #MenToo movement was started by a NGO[21] in Bengaluru, this movement was supported by Former French diplomat Pascal Mazurier.

We are ignoring the mental agony, pain and what all husbands[22] and his family have to go through because of false cases filled by their wives. There’s no law which they can use a their protection and here we are talking of making one more law in favor of women’s, isn’t this also discrimination and violation of men’s right to equality?

E.P. Royappa v. State of Tamil Nadu[23].13 Bhagwati, J. stated :

Equality is a dynamic concept with many aspects and it cannot be ‘cribbed, cabined and confined’ within the traditional and doctrinaire limits. From the positivistic point of view equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies…. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14….”

Bhagwati, J. had in Maneka Gandhi[24] proceeded to examine the ‘content and reach’ of the ‘great equalising principle’ enshrined in Article 14. He observed that:

It is indeed the pillar on which rests securely the foundation of our democratic republic. And therefore, it must not be subject to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate it’s all embracing scope and meaning, for, to do so would be to violate its activistic magnitude…. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits…. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally and philosophically, is an essential element of equality pervades Article 14 like a brooding omnipresence.

SubbaRao J. has also said in LachmanDass v. State of Punjab[25],

 “A citizen is entitled to a fundamental right of equality before the law and the doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Over-emphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality: the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification.”

It is therefore said that the Fundamental Rights are subject to equal enjoyment by every citizen of the country. The law should aim to be gender neutral not gender biased. The main root of the problem is assumption on which our society is functioning and thus by amending this provision will amplify and strengthen the gap of inequality.

CRIMINALIZATION OF MARITAL RAPE IN INDIA

As discussed above in our country the sexual intercourse by man with his wife even against her will  is not considered as  rape and is not a criminal offence.

The Supreme Court in the case of Independent Thought v. Union of India[26] held that Sexual intercourse by a man with his wife, the wife not being less than 18 years of age, is not rape. 

But this judgment by the Supreme Court received mixed responses from the citizens of our country. Till now this is not acceptable in the society that if any man forces his wife for sexual intercourse then that will not be considered as an offence just because her age is 18 years or above.

This is not the  only  case in which the Indian judiciary  discussed about the criminalization of marital rape many petitions have been filed in the courts for the criminalization of marital rape before this case and even after this case also.

In Nimeshbhai Bharatbhai Desai v State of Gujrat, RIT Foundation v. Union of India etc. the criminalization of marital rape was discussed.

In Nimeshbhai Bharatbhai Desai v State of Gujarat, Justice Verma noted “stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands”. Marital rape ought to be a crime and not a concept. Of course, there will be objections such as a perceived threat to the integrity of the marital union and the possibility of misuse of the penal provisions. It is not really true that the private or domestic domain has always been outside the purview of law. The law against domestic violence already covers both physical and sexual abuse as grounds for the legal system to intervene. It is difficult to argue that a complaint of marital rape will ruin a marriage, while a complaint of domestic violence against a spouse will not. It has long been time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status. But in the final judgment of the case it was held that the husband cannot be prosecuted for the offence of rape punishable under section 376 of the IPC at the instance of his wife as the marital rape is not covered under section 375 of the IPC.

The above judgment had a bearing effect on the RIT Foundation v. Union of India[27] where the petitioners have challenged the constitutionality of the IPC’s exemption to marital rape under Section 375.

On 29th March, 2019, Anuja Kapur filed a petition in the apex court which urged to direct the Centre to frame the necessary guidelines along with appropriate laws and by-laws related to marital rape as a ground for divorce. The following are the main points which will be under the consideration of the court:

1)  It is mentioned in the petition that there should be proper guidelines for registering the FIRs against marital rape.

2)  It has been claimed that there is no law in our legal system for stopping marital rape.

3)  It contended to maintain the dignity of women in marriage.

If these responses from Indian society are taken into consideration then it is the time for making law for marital rape or to declare it as a criminal offence.

In a study conducted by the Joint Women Programme, an NGO, found that one out of seven married women had been raped by their husband at least once. The reasons given for not making marital rape a criminal offence are like, this will destroy the marriage, someone might be at risk of fabricated case, it is difficult to prove the crime of marital rape etc. But none of these reasons provides any justification for not making the marital rape a criminal offence, because any marriage in which the husband rapes his wife is already destroyed. All of these reasons stated above are just the excuses for male dominated society that lack of proper legal reforms for the protection of dignity of women in the country.

The Congress MP Dr. Shashi Tharoor also introduced a private bill in the Lok Sabha to make marital rape a crime. The bill was titled Women’s Sexual, Reproductive and Menstrual Rights Bill 2018.He mentioned in this bill the  existing laws fail to recognize ‘woman’ as an individual capable of making her own choices, specifically her sexual choices as a wife and her reproductive choices when pregnant. Its central idea was the “agency of women”. His bill covered topics related to the dignity of women including the concept of marital rape. It proposes the deletion of Exception 2 to Section 375 of Indian Penal Code, which states that sexual intercourse by a man with his own wife is not rape. But still this is pending in the parliament.

At present, marital rape is the most common and repugnant form of masochism in Indian society, it is hidden behind the iron curtain of marriage. It is common but under reported crime due to the absence of related laws. In India, marital rape exists de facto but not de jure.

The current scenario of marital rape is not accepted by the Indian society because of the rate of increasing education and legal awareness in the country many people are aware of their rights and duties provided by the legal system of the country to its citizens and the above stated cases are the proof of this dissent.

COMPARATIVE ANALYSIS: INDIA AND USA

The Indian status related to marital rape is not appreciated much. India is one of the 36 countries where marital rape is not a crime. Malaysia in 2007, Turkey in 2005, Bolivia in 2013 and United States of America in 1970s declared marital rape a criminal offence. Many countries in the world have set and defined procedure and laws for the act of marital rape. In this research paper we have compared the status of status of marital rape in India with United States of America.

The following are points of comparison between the status of marital rape in India and United States of America:

  1. LAWS RELATED TO MARITAL RAPE.

In India the offence of rape is defined under section 375, of the Indian Penal Code but as regards the rape committed on a female above the age of 18 years, there is no legal resort but if the rape is committed on a married girl below the age of 18 years then it will be covered by Section 375. Whereas, in USA the offence of rape has been defined in the United Code of Military Justice under Chapter 47X, Section 920 Article 120 and under this provision marital rape is banned that is it cannot be used as a defense by the accused. But as we know in USA there exist two types of laws i.e., National Laws and State Laws. There is no national law on rape, so accordingly each state has its own law concerning it. The position of state laws of America is that, in all the 50 states of America, marital rape is illegal.

  • PUNISHMENT FOR MARITAL RAPE.

The punishment for marital rape in India with a married girl below the age of 18 years is same as of rape i.e., imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine but there is punishment for marital rape with the woman above 18 years as there is law for that in our country. In USA, the punishment for marital rape is same like the rape committed by any other person. The accused can be penalized for several years or for even life imprisonment.

  • CASE LAWS DECIDED THE STATUS OF MARITAL RAPE.

In India, in the case of Independent Thought v. Union of India[28] the honorable Supreme Court held that if rape is committed on a married girl child below the age of 18 years will be covered under the offence of rape as defined under Sec 375, IPC but as regards the rape committed on a female above the age of 18 years, there is no legal resort available to the women under the criminal law and is still being considered as an exception to the rape.

In USA, Nebraska was the first state to abolish marital rape, but the turning point was the New York case of People v. Liberta where it was finally decided that there was no reason for discriminating between rape and marital rape. The court noted that “a marriage license should not be viewed as a license to forcibly rape wife with impunity” and struck the marital exemption from the statue in question for violation of the state and federal constitution.

  • JUSTICE TO WOMEN.

If we compare the justice provided to the women in both the countries who are the victims of the marital rape then it can be said that India is lagging behind in this point and it a major setback because just due to the few unjustifiable reasons the women in the country can not avail any remedy for the crime of rape committed with her by her own husband. So basically, marriage is considered as a license to the men to exploit the women and to go escaped for this offence. But this same thing is much better in USA because all of its 50 states have recognized marital rape as a criminal offence and no women in the country has to face any wrong with her just because she entered into the contract of marriage.

From the above comparison of the status of marital rape in both the countries it has been observed that there is no differentiation made in both the countries between the rape taking place within wedlock and outside it and the other one does that. Though marital rape is illegal in USA but not in India but still in USA also the same treatment is given to the person who commits rape and the one who does the same act but with his wife, the same punishment is given to both the criminals. Whereas the crime of marital rape not only cause the mental and physical injuries but the woman who becomes the victim of this crime also has to go through a social stigma which is completely different from the non-marital rape.

CONCLUSION

In this research paper, we have analyzed the marital rape from all the perspectives that what it actually is, its history and background in the country, present scenario, why it is not an offence in India, why it should be an offence in India and also an comparative analysis is also done between the status of marital rape in India and USA.

After all of the above discussion and research we have concluded that changing any law or making amendments to any law especially related to the sexual offences is very sensitive topic in India because it is a developing country and still due to the low rate of education and the poverty in country, the citizens will not be able to accept any such big amendment easily and it can also create a situation of revolt in the country which a developing country cannot afford. So, our judicial and legislation system has to consider all of these things before amending the provisions relating to marital rape.

Hence, this debate in country on whether marital should be a crime is a very sensitive topic and it should be dealt carefully. But this is the time when our legislation and judicial system should take a strong step for providing the justice to the women in the country who are the victims of the marital rape and are helpless due to absence of laws in the country. The myth which is prevailing in the country that rape by one’s spouse is inconsequential needs to be acknowledged and challenged, and accordingly the changes should be made in the law.


[1]Kathiraningrawat v The State of Saurashtra(1952) air 123.

[2]John Vallamattom v Union of India, A.I.R. 2003 SC 2902.

[3]e.p. Royappa v State of Tamil Nadu and ors. A.I.R.1974 SC 555.

[4]State of West Bengal v. Anwar Ali, (1952) SCR 284; Ajit Singh v. State of Punjab, A.I.R. 1967 SC 885, 886; Meenakshi Mills v  Vishwanath, A.I.R.1955 SC 13.

[5]Chiranjitlal Chowdhuri v The Union of India and others 1951 A.I.R. 41.

[6]Supra 36 (para 66).

[7]Anwar Ali Sarkar  v The State of West Bengal A.I.R. 1952 cal 150.

[8] Delhi commission for women, 53.2 per cent rape cases filed between April 2013- July 2014 are false.

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

[10]Lalitakumari v. Government of  Uttar Pradesh (2014) 2 SCC 1; Arrest of a relative other than husband could only be after permission from the concerned magistrate.

[11]Arnesh Kumar v. State of Bihar (2014) 8 SCC 273.

[12](2005) 6 SCC 281.

[13]Sajesh Sharma and ors. v. State of U.P. And Anr. Special leave petition (CRL.) No.2013 of 2017, Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667, Savitri Devi v. Ramesh Chand 2003 CRIJL 2759.

[14]Ramgopal v. State of madhya pradesh (2010) 13 SCC 540, savitri devi v. Ramesh chand ILR (2003) I delhi 484.

[15]https://www.thehindu.com/news/cities/mumbai/running-for-mens-rights/article26044998.ece

[16]https://www.thehindu.com/news/cities/delhi/dont-advise-women-to-lodge-false-rape-cases-court/article23337654.ece

[17]Protected under article 21 of the constitution.

[18]Kharak singh v. State of u.p, 1963 A.I.R.1295, 1964 SCR (1) 332.                       

[19] State of punjab v. Dalbir singh (2012) 3 SCC 346- para 46,52 and 85, (2014) 4 SCC 453- para-21.

[20]Justice k. S. Puttaswamy (retd.) Andanr. V. Union of india and ors, A.I.R.2017 sc 4161,para 3 (f).

[21]Children’s rights initiative for shared parenting (crisp).

[22]64,000 Married men committed suicide according to ncrb report of 2012.

[23]A.I.R.1974 SC 555.

[24]Maneka gandhi v. Union of India A.I.R.1979 SC 468.

[25] A.I.R.1963 SC 222.

[26] Writ petition (civil) no. 382 of 2013.

[27] Writ petition (civil) no. 284 of 2015.

[28] Writ petition (civil) no. 382 of 2013.

RIGHT TO PRIVACY- Rana Saurav Kr Singh & Shubhangi Singh

                              
ISSN : 2581-8465

 Author : Mr. Rana Saurav Kr Singh & Ms.Shubhangi Singh

The ICFAI Law School, dehradun.

ABSTRACT

Privacy is something that enables an individual to seclude them and any of their information from others. Privacy may also be any bodily integrity along with the information.privacy. Right to privacy is animportant facet of the Right to life and personal liberty, article 21 of constitution of India.The right to privacy in any event will necessarily have to go through a process of a case-by-case develop men.

                       The right to privacy, in India, was recognized in 1954 in the case of M.P. Sharma and others vs. Satish Chandra. It was held by the bench that, ‘the drafters of constitution did not intend to subject the power of search and seizure to a fundamental right and privacy. It was also held that Right to Privacy is not a fundamental right.

                       In some cases Government do not provide the right to privacy stating that it is not an absolute right.

    Here in this paper we are going to discuss about the concept of right to privacy, what is aadhar card and its pros and cons regarding right to privacy.

 In 2010 Aadhar was launched.  Aadhar is the unique authenticated identity proof of the individuals after the issuing of the A adhar the, main issue generated  was that it became one of the  main reason to violet the privacy of individual due to some loop holes.

 

 

 

INTRODUCTION

Any personal information of individuals or ability of individuals is termed as privacy and also to express themselves selectively. The right determines the nonintervention of secret surveillance and the protection of an individual’s information.

The constitutional right to privacy protects the liberty of people to make certain crucial decisions regarding their well-being without government coercion, intimidation, or interference. Such crucial decisions may concern religious faith, moral values, political affiliation, marriage, procreation, or death. The federal Constitution guarantees the right of individuals to make these decisions according to their own conscience and beliefs. The government is not constitutionally permitted to regulate such deeply personal matters.

All the people of India have the right to privacy, the protection of the privacy to the other because if the privacy is infringed then the person’s  reputation is harmed. Everyone has the right to be respected for his private and family life, his home and his correspondence and no one shall be subjected to arbitrary or unlawful interference with his privacy and also no one can do unlawful attacks on his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Privacy is something that enables an individual to seclude them and any of their information from others. Any bodily integrity along with the information also contributes to privacy.

The right to privacy provides a right of area to an individual stating the things that can be accessed by others and also to control those extent, manner and timing of the use of those parts that we choose to disclose. Various governmental and private actions that threaten the Privacy are also restrained. The constitution also provides for the right to privacy. Right to privacy is an important facet of the Right to life and personal liberty, article 21 of constitution of India.

Right to privacy is not absolute

Only in such exceptional circumstances, like to protect the national interest, however, an individual’s right to privacy can be superseded. The Central government passed the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, that allow the Secretary in the Home Ministry/Home Departments to authorize agencies to intercept, decrypt or monitor Internet traffic or electronic data. In emergency situations, such approval can be given by a person not below the Joint Secretary in the Indian government. The importance of reserving such powers to conduct surveillance cannot be undermined, in today’s times, when fake news and illegal activities such as cyber terrorism on the dark web are on the rise

There should be some reasonable basis or some tangible evidence to initiate or seek approval for interception by State authorities. This is the position in the U.S. Any action without such evidence or basis would be struck down by courts as arbitrary, or invasive of one’s right to privacy. Therefore, the framework of the prescribed procedure needs to be adhered to, and its implementation needs conformance, both in letter and spirit. Any digression from the ethical and legal parameters set by law would be tantamount to a deliberate invasion of citizens’ privacy and make India a surveillance state

Importance of Right to privacy is important as our personal information can be misused by someone. For example –

  • Social sites like in Facebook anyone can easily access to our personal information’s thereby harming our privacy, our right must be protected so that the people whom we want may only get to know about us.
  •  As the adhar card is linked with various things , once anyone gets accessed to others adhar may easily generate any information about that person, even the more crucial ones. Aadhar is also linked with our bank accounts which also means that our bank accounts are also not safe if our adhar is hacked.
  • Surveillance camera where ever installed must be known to the persons working there i.e. in any organizations, companies, educational institutions etc.. As personal activities of any person must not publicized or recorded , one must have its own space.
  • Keeping record of ones work or internet browser history harms the privacy of a person. That’s why right to privacy must be provided to them
  • Policemen also can’t enter anyone’s home as just that person has some record in history.

BACKGROUND

It 1963 in the case of Kharak Singh v. State of U.P. the Supreme Court had the occasion to consider the ambit and scope of this right when the power of surveillance conferred on the police by the provisions of the U.P. Police Regulations came to be challenged as being violative of Articles 19(1)(d) and Article 21 of the Constitution. The Court repelled the argument of infringement of freedom guaranteed under Article 19(1)(d) of the Constitution, and the attempt to ascertain the movements of an individual was held not to be an infringement of any fundamental right. The minority judgment, however, emphasized the need for recognition of such a right as it was an essential ingredient of personal liberty.

Near about a decade later the Supreme Court seems to have realized the need for recognizing the right to privacy in Govind v. State of M.P. wherein Mathew, J. as Lord Denning indicated envisaged its gradual development thus:

“The right to privacy in any event will necessarily have to go through a process of a case-by-case development.

AADHAR CARD

Aadhar was launched  in 2010 by the then PM Manmohan Singh and then Congress President Sonia Gandhi. During the launch, Sonia hailed the project as a part of Rajiv Gandhi’s ‘vision’, adding that the project was aimed at inclusive growth. 1,000 villagers in a tiny place called Tembhali in Maharashtra were the first people to get their Aadhaar cards in the entire country. The ceremony was conducted with such fanfare that the entire village got a complete makeover for it. The program was introduced in Karnataka on October 8 with the then CM BS Yeddyurappa being the first to enroll for it.


To the former UIDAI chairman Nandan Nilekani, it was more than just a number, it was an ambition: He claimed that in a mere four years, over 600 million people would have an Aadhaar card and that the UIDAI was in talks with the Finance Ministry to make Aadhaar the KYC document of choice for opening village accounts. Nilekani was not unfounded in his claims. In less than five months of the program’s launch, over 16.7 lakh Aadhaar numbers had been generated and nearly half of it came from Karnataka alone. By the time the end of the year rolled around, 10 crore people had enrolled for Aadhaar with 75 lakh of them from Karnataka

Trouble began to foment a little over a year after Aadhaar’s introduction when the MHA expressed apprehension that enrollments could be faked due to loopholes in the process. In 2012, the first signs of Aadhaar becoming mandatory came to light, when three oil companies initiated a pilot project in Mysore to have LPG refills linked to the ID. Then, in 2013, banks began asking for Aadhaar to provide services. In 2013, the 12-digit ID became the ID to link with bank accounts for getting LPG subsidies

In September 2013, the SC began hearing the first of what would become a series of Aadhaar petitions. The petition was to examine the usefulness of the Aadhaar card. Less than two weeks later, the court ruled that a lack of Aadhaar was not grounds to deprive people of any benefit or service. Responding to the verdict, then Minister of Petroleum and Natural Gas Veerappa Moily said the Aadhaar-linked Direct Benefits.. Transfer (DBT) scheme for subsidised LPG supply would continue and the government would move the apex court for a ‘correction’ in the order.

 In October, the union cabinet cleared the National Identification Authority of India Bill, giving statutory status to the UIDAI. Shortly after, the UIDAI became one in a long line of petitioners before the apex court in favour of the Aadhaar programme.Months before the Congress government in the Centre would fall, the apex court issued a directive to have any and all instructions that made Aadhaar mandatory to be withdrawn.

.After coming into power in 2014, Narendra Modi decided to review the progress of the Aadhaar project and discussed the possibility of using the platform to resume the DBT of subsidised schemes In the coming months, the government mooted making Aadhaar mandatory for various services, including passports (though it backtracked on that shortly after), PAN cards and Jan Dhan accounts, but the apex court was unconvinced. The Centre eventually said that Aadhaar was not mandatory for public services

The year 2015 saw a lengthy back and forth between the apex court and the Centre on the Aadhaar matter, with the Centre saying that Aadhaar couldn’t be rolled back and the apex court directing the Centre to ensure Aadhaar did not become mandatory and refusing to alter its order and expand the uses of the ID card

 

Aadhar Card and Right To Privacy – Can They Co-Exist?

  • In its zeal to aggregate data in electronic form and target subsidies better, the government cannot ignore its responsibility to protect citizens from the perils of the cyber era.
  • Legislation- it is imperative that the Union Government enact a privacy legislation that clearly defines the rights of citizens and it should be consistent with the provision of the Constitution.
  • The government should factor in privacy risks and include procedures and systems to protect citizen information in any system of data collection.
  • It should create an institutional mechanism such as the Privacy Commissioner to prevent unauthorized disclosure of or access to such data.
  • Our national cyber cell should be made well capable of dealing with any cyber-attack in the shortest time.
  • We need to educate people on the risks involved and highlight examples of ID thefts and fraud.
  • The government should recognize all dimensions of the right to privacy and address concerns about data safety, protection from unauthorised interception, surveillance, use of personal identifiers and bodily privacy.
  • We need to take a level-headed approach and ensure that ample safeguards are put in place for data protection and privacy.

Lack of  Security

Several incidents took place that showed that there is some lack security regarding the aadhaar card, example-

  • Former Indian Cricket team skipper, Mahindra Singh Dhoni’s Aadhaar account number got posted on Instagram..The Aadhaar center  had  posted the picture, in hopes of getting more people to register for Aadhaar services,  this showed us that independent agencies authorized to collect Aadhaar information from the public are not regulated enough with respect to privacy and disclosure of private Aadhaar information. The agency is blacklisted for 10 years.
  • Errors are common when filing for Government documents. Errors can be made by the applicant during application for Aadhaar, by the issuing authority, by the publishing/printing partner, a transcription error, initials in names, etc. Errors can take the form of a mismatch between information, incorrect name, photo, address, relationship, gender, email address, mobile number, etc.

Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. is a landmark judgment of the Supreme Court of India, which holds that the right to privacy is protected as a fundamental constitutional right under Articles 14, 19 and 21 of the Constitution of India.

The judgement of the nine-judge constitution bench contains six concurring opinions affirming the right to privacy of Indian citizens. It explicitly overrules previous judgements of the Supreme Court in Kharak Singh vs State of UP and M.P Sharma vs Union of India, which had held that there is no fundamental right to privacy under the Indian Constitution

FACTS- The government of India decided to provide to all its citizens a unique identity called Aadhar which is card containing 12 digit Aadhar number. The registration for this card was made mandatory so as to enable the people to file tax returns, opening bank accounts etc. However, the registration procedure for such card required the citizens to give their biometrics such as fingerprints, iris scans etc. Retired judge justice K.S Puttaswamy filed a petition challenging the constitutional validity of this Aadhar project contending that there was a violation of right to privacy of the citizens since, the registration for Aadhar is made mandatory. As a result of which all those who don’t even want to register themselves, are not left with any option. Moreover, there is a lack of data protection laws in India and hence, there are chances that the private information of the people may be leaked if proper care is not taken. This will lead to violation of right to privacy of the individuals.

 Judgement and analysis

The Judgment of the Apex Court that Right to privacy is a fundamental right is correct. However, it is true that privacy cannot be an absolute right. For instance, surveillance is important to prevent crime in the society. An individual cannot simply argue that his privacy is being violated if larger public interest requires keeping him/her under the surveillance. The major question is that the Supreme Court of India, unlike the USA, has still not recognized the doctrine of waiver, which facilitates that an individual can waive off the fundamental rights if larger public interest requires so. The reason behind this being that it would defeat the purpose of the Constitution which implies that fundamental rights are absolute. So, how can privacy be a fundamental right if it is not absolute? As already mentioned above, privacy is not only a right, it is a natural and inalienable right. It cannot be denied the status of a fundamental right because liberty without privacy and dignity would be of no use.

THE BENCH

The high profile bench that will decide the question of privacy. Here are the judges:

  1. JS Khehar
  2. . J Chlameswar
  3.  SA Bobde
  4.  RK Agarwal
  5.  RF Nariman
  6. AM Sapre
  7. DY Chandrachud
  8. SK Kaul 
  9.  S Abdul Nazeer

Denying the right to privacy

This month, the Ministry of Home Affairs issued an order granting authority to 10 Central agencies, including the Delhi Commissioner of Police, the Central Bureau of Investigation (CBI), and the Directorate of Revenue Intelligence, to pry on individual computers and their receipts and transmissions “under powers conferred on it by sub-section 1 of Section 69 of the Information Technology Act, 2000 (21 of 2000), read with Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009”. It has authorized these “security and intelligence agencies” to intercept, monitor and decrypt any “information generated, transmitted, received or stored in any computer resource”. This is seen as an extreme measure to deny people their right to privacy — more so because agencies such as the Delhi Police, the CBI, and the Directorate of Revenue Intelligence cannot be strictly termed as organizations concerned with homeland security. Internal security is the main excuse being given for issuing such a directive. Given that the Lok Sabha election is to take place next year, the executive order seems to hint at a different game being played.

The sole fascination of this government seems to be collection of data. With an unquenchable thirst for information, the government at the Centre and most governments in the States have set out on a surveillance race. This will be the fastest process to turn India into a police state. While politicians change every five years, the country’s governance system is being left at the mercy of bureaucrats. It is this class of people which is pushing the ‘police state’ agenda. This especially becomes easy when the democratically elected leader starts suspecting every other elected member as well as citizens. Taking advantage of this mindset of paranoia and isolation, underlined with the greed for power, the bureaucrat seems the most trustworthy and harmless. It is obvious that he will not aspire for the ultimate throne that these apex politicians desire. This makes him a non-adversary

TOO MUCH OF INFORMATION: DETRIMENTAL TO PUBLIC WELFARE- SHRISHTI ROHRA & ANKITA MAJI

RT

ISSN : 2581-8465

NAME OF AUTHORS: SHRISHTI ROHRA AND ANKITA MAJIC

UNIVERSITY OF PETROLEUM AND ENERGY STUDIES, DEHRADUN

ABSTRACT

The overall purpose of this study is to highlight the role of media or press in current situation prevailing in the country.  The paper mainly focuses on the position of media with respect to the Wing Commander Abhinandan’s Case. The study goes further to show how the media reacted and how they should have reacted in that situation. The role of social media also got boom during that period people the video of Abhinandan leashed on Youtube, Instagram , Facebook, Whatsapp etc.   It also highlighted the history of freedom of press and also the purpose of this study is to make the people aware and ignite a thought among readers.

The study also reveals that in spite of previous lashings and cases against the media, they have not stopped publishing content which is defamatory in nature or which amount to threat to the security of the state. The study also shows the relevant case laws in which the media have reacted in irresponsible manner in certain serious issues like the rape case. The study also highlights the current situation of press in India. The study of the research is mainly focused on doctrinal research methodology.

INTRODUCTION

This paper deals with role of media with respect to Wing commander Abhinandan’s Case. Freedom of press is not incorporated in Constitution of India separately. It is one of the fundamental rights of the constitution of India. It is been added in article 19(1)(a) of Constitution of India. Like the author of positive school in jurisprudence i.e. AUSTIN says that “Law is the command of the sovereign and it is backed by the sanction”. So according to jurisprudence no law or liberty can be there without the restrictions, also every right cannot be absolute, freedom of press has certain restrictions attached to it i.e. given in Article 19(2) of the constitution of India[1]. Like defamatory articles are exceptions to freedom of press. Freedom of speech and expression is considered as the backbone of democratic country. Democracy means by the people, for the people and of the people. Press help in knowing the requirement of the society at large. And on the other hand it communicates to the individual the policies and the measure of the government. The role of press is very important in providing social, economic and political status to the society or people at large. By the help of freedom of press the public used to form their opinion about the issue, by this there knowledge increases and thinking capability also.

Freedom of press means and includes right of printing, publishing, painting etc. by the means of their printing right they exercise the freedom of speech and expressions by their way of ideas and their opinions. Freedom of press is not confined to only newspapers and periodicals, it also include pamphlets, circulars and every sort of publication which cover the ideas or the opinion of the individual.[2]“Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.”[3]The press role is to provide educational and relevant information which will protect the country from hatred or riots among the nation and provide the social message by spreading harmony among the individuals. Every right, liberty, freedom, duty is invoked in constitution of India. And it can be invoked if there any violation of the rights, freedom etc. In constitution of India Freedom of press can be seen in two major aspects:-

  1. PREAMBLE
  2. Article 19(1)(a) of the constitution- Freedom of speech and expression.

Preamble is considered as one of the essence of any act or statue. While interpreting any law or statue if there is discrepancy the internal tools are used to interpret the statue. Like preamble is considered as one of the main tools for knowing the intention of the legislature behind making that law. The preamble of Constitution of India upholds the liberty of thought, belief, faith and expression. Here in liberty of thought and expression, the freedom of press lies to uphold the opinions or to express it by any means. Unlike the American constitution the freedom of press is not given separately under the Indian constitution. The freedom guaranteed under article 19(1)(a) is same as the freedom under article 19 of Universal Human Rights Declaration (1948). Chairman of the Drafting committee Dr. Babasaheb Ambedkar strongly argued that “The press is merely another way of stating an individual or a citizen. The press has no special rights which are not to be given or which are not to be given or which are not to be exercised by the citizen in his individual capacity. The editors of press or the managerare all citizens and therefore when they choose to write in newspaper they are merely exercising their right of freedom of speech and expression and in my judgment therefore no special mention is necessary of the freedom of press at all.”[4]

According to Hohfeld[5] rights is a wider term it consists of liberties, power, immunities and privileges. This is the jural postulates all these are co related with each other. Separately freedom of press is not mentioned it is the judiciary who safe the right to press and media by pronouncing the judgment. The elements of freedom of press are so but some of them are:-

  1. Power to circulation
  2. Power to report court proceeding
  3. Power to hold an interview
  4. Power to preview criticism
  5. Power to act as a communicating medium.

HISTORICAL BACKGROUND

“Freedom of Press is an article of Faith with us, sanctioned by our Constitution, Validated by four decades of freedom and indispensable to our future as a Nation.”

                            -: LatePrime Minister Rajiv Gandhi

In India the trend of press and media can be traced back to the carvings, writings and inscriptures during the time of Ashoka. The press and media was very much prevalent during the Mughal era, but it modernised not before the 19th century. Spies and informants were hired by the kings, and they brought back all necessary information to the king, thus acting as a medium of communication and information. However, it was a very closed system of communication as it only circulated one way i.e., from  the informants to the king or the higher authority, rather than being circulated among the public. Nevertheless, it sufficed the need of information for a better administration and order in the state.

More developments with regard to press and media took place after the arrival of the Britishers in the 16th century. India witnessed a lot of new things including the first printing press, the first newspaper and the concept of censorship. Indian newspapers proved to be a very effective mechanism in aiding their war against the Britishers. It promoted a feeling of unity and nationalism, and inspired Indians to join the freedom movement against the Britishers. The Nationalist press in India which was established in India in 1820, played a very important role in identifying social evils like the caste system, sati practices and voicing their opinion against it. Mahatma Gandhi in his work, Young India, tried to defend the rights of newspapers against the press laws in 1920. The radio also became an important part of media after the establishment of the All India Radio in 1936.

After Independence, Indian press and media has been through a complete process of renovation and reinvention. The development of press and media through the whole of 19th and 20th century and the transitions it has been through is a very interesting process. The press and media has been almost independent throughout, except for the emergency situation of 1975, declared by the then Prime Minister Indira Gandhi.

With censorship imposed on the Indian newspapers and magazines, the reaction of the press and media was expected to be huge. But the manner in which the ‘so-called’ press gave up its independence shocked everyone. The Times of India, which was and is a leading newspaper of our time, suddenly became a strong supporter of theGovernment, and the newspapers underwent a change overnight to replace every headline with flattering pictures and comments in respect of the Prime Minister.

ROLE OF MEDIA IN WING COMMANDER ABHINANDAN CASE

In Abhinandan’s case, media did not exercise their self-restrain. They published all the unnecessary information which wasnot relevant in the first place. During such situations, due to media’sunauthorized sources of facts, the security and threat of the nation increases.It’s really appreciable to portray him as national hero, as he has done a work of bravery for the nation. The media however, had gone beyond his act of heroism so as to disclose every ounce of important detail regarding the mission, his jet and his techniques which amounted to an act of threat to the security of the nation.

Different news channels produced different information and some of them even fueled the idea of a war. The media is considered as the major influential source of communication in the society at large. The message of war that they were suggesting was not only ridiculous, by also promoted the idea of danger and threat to the people during that period of time. This step of media was very disrespectful.

Nowadays, the media channels mainly work for increasing their TRP and can go to any extent and publicize anything. They have forgotten their aims and objectives. In the case of Abhinandan, they left no stone unturned. Not even his family was spared by the media. During this situation, what was expected of the media was an act of sensibility, sensitivity and support for the family of Wing Commander Abhinandan.The media had infringed Abhinandan’s right to privacy and published or telecasted all the information publicly. The media has been warned earlier for not publishing information of this kind which isunnecessary. Once NDTV had been charged for this. But with rise in popularity, they have forgotten their limits. Ongoing debates and public opinion regarding this issue had been witnessed, and there was more hatred and fear among the people in the society.

Nowadays, there can be seen a clear cut variation in the content as well as the medium of media and press, with the introduction of blogs and you-tube channels, not to forget Facebook and Whatsapp, which has been acting and growing as a huge platform for communication and networking. But it is rightly said, “With great power comes great responsibility.”

 In India where democracy prevails, people have become more aware and competent with respect to the media and press, as they handle and control the media and press to a very large extent. The video of the abhinandan that got viral everywhere in social media where he praises Pakistan officials for taking care of him, their started so many tweet in his name people started keeping their opinion. Ravi Shankar Prasad, union minister of Information Technology declared restrain on what people should watch on social media websites. “In the light of the situation prevailing in the country today, we expect the social media platforms to ensure that they should not allow their platform to be abused by content which is designed to weaken the morale of the country,[6] he declared.

Hashtags beside Abhinandan’s name along with tweets and his you-tube videos trending as No. 1, not to forget about the advanced technologies we have these days, these images and videos went viral much before any official confirmation was made by Pakistan.Although social media played a very important role in confirming the safety of the pilot in the enemy soil, the social media uproar went pretty much against the rules of Geneva Convention and Humanitarian Laws.

What was more disturbing, or more appropriately ridiculous, was that the whole issue transgressed into a virtual war of right and wrong, morality and ethics globally, mainly between the residents of Indians and Pakistanis. What was more shocking was that the social media was being used as a platform for spreading criticism and hate in the form of Whatsapp messages and Instagram posts being shared, with plenty of unnecessary debates and arguments. The officials even asked you tube to take down such videos, which had a large psychological impact on the people. At a time when self-restraint was required, what happened was a whirlpool of emotions being sucked in, with zero outcome. Also, this emotional outburst was generated and controlled by the media itself, since it has the power over what it portrays to the people, and the manner in which it portrays to the people. Maybe it was the reason why Abhinandan’s case was hyped up by the media, but very few know about the case of Kulbhushan Jhadav, an Indian Nationalist, who was sentenced to death after being caught as a spy in Balochistan in 2017. He was tortured in a similar manner, but sadly, very few articles and posts are available online with respect to his case and situation. Where was the media then? Or was he not much of an Indian as compared to Abhinandan Varthaman. This brings out the greatest failure of the Indian Media.

CASE LAWS WHICH BRINGS OUT FAILURE OF MEDIA

  • KATHUA RAPE CASE[7]

We can never forget the horrific incident that came up in January 2018, when an eight year old girl was brutally raped and murdered in a village near Kathua, in the state of Jammu and Kashmir. The press publicized the photograph of that girl gazing straight into the camera, along with her name and all that there was to be revealed about her. What exactly was the attempt of the media was difficult to understand. Perhaps they wanted the heart wrenching picture to excite anger and agitation among the people of the country. The Delhi High Court issued notices to several news channels and papers for revealing the identity of the victim. The picture of the little girl was viral everywhere, starting from the local dailies like Rising Kashmir to the reputed newspaper, The Times Of India, not to leave behind Scoopwhoop, Newslaundry and Indian Express.  What gave them such liberty was an issue that became a matter of discussion and concern. By the interpretation of Section 228A of the Indian Penal Code it was stated that incase of the death of any minor or deceased victim, the identity can only be revealed by:“With the authorization in writing of, the next of kin of the victim: Provided that no such authorization shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognized welfare institution or organization.”

  • 26/11 MUMBAI ATTACK CASE[8]

While India has an Information Technology (IT) protocol which the press and media needs to comply with, especially in times of emergencies and crisis. However the scenario of the Mumbai Attack portrayed nothing but contradiction. The media stood as close as possible to the affected areas, and sent out live verdicts and live scenes directly from those areas, and as a result they ended up reporting even the operational details which aided the terrorists sheltered within those areas, who acted on the basis of those reports. The reporters reported what they saw, not what they were supposed to report. Indian media to be blamed again for it callousness?

  • JNU KANHAIYA KUMAR CASE[9]

The media went about covering the entire incident of alleged anti-nationalism slogans at the Jawaharlal Nehru University (JNU), after which five students were charged with the offence of Sedition, leading to the arrest of a student, Kanhaiya Kumar, over a footage which had no evidence or backing to prove that it wasn’t a distorted video or had no actual facts to support the arrest. The case showed a major decline in the reliability of the media, on which almost the entire Indian population is dependent on. The JNU case if not anything, had exposed the loss of credibility on the Indian Media and the irresponsibility that tagged along.

  • . COW SLAUGHTER AND CHILD LIFTERS[10]

A large scale lynching took place across the country starting from Tripura to Maharashtra, based on the suspicion of being a child lifter or committing the act of cow slaughter. These mostly arose out of rumors and fake news that spread across the social media. It was rightly said, “Social media kills.”The social media turned “anti-social”, leading to the death of around 22 people across the country, including a transgender. The Police blamed the rumor mongers and the fake messages created by the social media which owed to such a great mishap.

By the above case studies and research it is very evident that the press is manhandling its powers. For increasing their popularity they don’t even think before publishing or broadcasting such issues on media. Like as in the rape cases or sensitive issue the family of the victim need supports during that period of time. Even some of them refuses to open the identity of the accused or for the interview of the victim. In certain sensitive issue the press should contribute in not publishing or broadcasting anything which affects to security and solidarity of the nation.

EXCEPTIONS TO FREDOOM OF PRESS

As it is said in the jurisprudence every right is attached with the liability. So no right is considered as absolute in nature it is subject to certain exceptions. As freedom of press is not expressly mentioned in Constitution of India. It is enumerated in article 19(1)(a) of constitution i.e freedom of speech and expression. It does not confer an absolute right to publish, without any responsibility, whatever one may choose or unrestricted or unbridled license that gives immunity for every possible languages and does not grant punishment for those who abuse this freedom[11]. The restrictions are been specified in article 19(2) of the Constitution of India which restricts the press to use excessive powers.

  1. Sovereignty and integrity of nation- This restriction is been inserted by Sixteenth Amendment. This focuses on restricting the person to say anything against the sovereignity and integrity of nation.
  2. Security of state- All the speeches or publications which raises the threat of the state by crime of violence, waging war and rebellion against the government, all these can be confined in interest of security of state.
  3. Friendly relation with foreign state- This was added by (First amendment) Act of 1951. If your words/speech tends to menace the friendly relations of India with other State.
  4. Public order- It was added by the First Ammendment, Act of 1951. This amendment become necessary because Supreme court in case of RomeshThappar v. State Of Madras[12], have refused to permits the imposition on restrictions of  right to free speech in interest of public order, because it was not a permissible ground of restrain. The expression ‘public order’ connotes the sense of public peace, safety and tranquility.[13]
  5. Decency or Morality– However, we know that the standard of morality varies from time to time and from place to place, person to person. In India, the scope of indecency and obscenity under the existing law is illustrated in section 292 and 296 of Indian Penal Code, 1860.
  6. DefamationPrevents any person from making any statement that injures the reputation of another. Also, Defamation is a criminal offence punishable in Section 500 of Indian Penal Code, 1860.
  7. Incitement to an offence. It prohibits a person from making any statement that incites people to commit offence. For example is the cases against BJP leaders for Babri incident and cases against Raj Thackeray for his anti-North Indians speech.
  8. Contempt of court– The right conferred under article 19(1)(a) of constitution of India does not confer the court from punishing for their contempt spoken or printed words or any expression.

In wing commander abhinandan case media did not restrain themselves from the reasonable restrictions that is been provide by the legislature in article 19(2) of Constitution of India. They have made the statements in so many news channels that provoke the people for committing any offence. Many of the news channels were even discussing about the war. Even though the security of the nation was on threat during that period of time, nobody felt secure at that point of time.

CURRENT STATUS OF PRESS IN INDIA

The press and media is regarded to be a very important organ apart from the three organs of justice- Legislature, Executive and Judiciary, for keeping a check on the activities of the people of the country and the working of the Government, for keeping everyone informed and updated. It is like the watchdog of the Indian Government.

According to the World Press Index, 2018, India ranks at 138. The World Press Index mainly takes into consideration the freedom of press in a particular country, rather than the quality of press and journalism. Several other parameters like environment, legal framework and transparency are also taken into account. Inspite of the freedom of speech and expression, the Indian Press and media faces a lot of difficulties, most of which are the outcome of issues created by them alone. However, sometimes media falls prey to harassment and even assault. The poor state of media can be attributed to numerous other reasons as well. Mr Krishna Prasad, a senior journalist, quoted a line from the book of Charles Dickens which said, “As far as Indian Journalism is concerned we are in the best of times and worst of times. While journalism has grown in size, a matter of concern is that press freedom is questioned by all and India has slipped to the 138th position in terms of press freedom. Insulting journalism and name-calling has become a trend and 14 journalist including Gauri Lankesh, Shujaat Bukhari, have met been killed while on duty. It is also sad that corruption and black mailing have become part of journalism”According to him, journalists should emphasize over the fact that whether they are actually reporting the stories that they are supposed to tell, and in the manner in which they are supposed to be told, and if not, what are the reasons for such malfunctioning.

The media has undoubtedly spread its branches across the country, with over 70, 000 newspapers and 690 plus, news channels, but the saddening part is that business has taken over professionalism. Media houses look for reporters who are willing to work for lower wages and at deplorable conditions, which leads to poor quality of work. Also, the issue of morality has become a very big question mark on the face of Indian media. There was a case in which the reporters of Zee News were arrested for trying to blackmail Jindal Steel, for an amount of 100 crore.

The people of our country have a great faith in the media and follow it like some religion. So the media should be careful of what it publishes and broadcasts, as it influences the people at large. Today, TRP is given so much value over good content, that it is almost becoming impossible to hold on to the real purpose of media. It is true that the media covers serious and sensitive issues like death of farmers, rise in prices of essential goods, however, these topics constitute of about 15-20 percent of the content, while the rest is mostly dedicated to drama, film biz and gossips. The problem here is not the incorporation of these subjects into the sea of media, but the need for balance, which is almost absent in today’s scenario. The press is considered to be the fourth pillar of justice and in the words of Mahatma Gandhi, “The role of journalism should be service. The press is a great power, but just as an unchained torrent of water submerges the whole countryside and devastates the crops, even so an uncontrolled pen serves but to destroy.”

CONCLUSION

India is a democratic country, and all changes must be bought about keeping in mind the democratic structure. It is very essential that the press and media works hand-to-hand with the judiciary system, for ensuring a greater cause i.e., public welfare.

In respect of improvements, stringent laws should be in force with penalties like cancellation of licenses and imposing heavy fines. There should be a filter between what the media covers and what it makes available for the audience to see. A committee should be set up for this respect. Sensitive issues should be given more focus, and only required information should be channeled, so as to make people aware, without giving away too much of information or causing any amount of discomfort either to the victims or to the family.

Credit should be given to the media when and where it deserves, and meetings with the media heads should be conducted in order to keep them updated with any new rules and regulations. This will help them stay in check and will keep them under pressure. IT rules should be strengthened and necessary amendments should be made in order to make it up to date with today’s affairs.

Efforts should be made to strike a balance without compromising on the quality. After all it is the media which voices public opinion and reflects the will of the public.


[1]Dias RMW; Jurisprudence.,(Butterworth&co.1994).

[2]Sakalpapers(P) ltd. V. union of india, AIR 1962 SC 305.

[3]Romeshthappar v. state of madras, AIR 1950 SC 124,128

[4]Constituent Assembly Debates, Vol. VII p 780 (2nd December 1948).

[5]Supra note 1.

[6]SujeetRajan, release of abhinandan varthaman and social media influence(2019), https://www.newsindiatimes.com (last visited at 11thapril, 2019)

[7](2018).

[8]MayaMirchandani, 26/11 and the media: where were the protocols? ,(2018), http://www.orfoonline.org (last visited at 11th april, 2019)

[9]Viju Cherian, JNU row :perfectcase study to show how media is losing its credibility(2016), http://www.hindustantimes.com (last visited at 11th April, 2019.

[10]Prabhas k Dutta, 16thlynchings in 2 months. Is social media the new serial killer? (2018), http://www.indiatoday.in (last visited at 11thapril, 2019).

[11]RomeshThappar v. State of Madras, AIR 1950 SC 124.

[12]Ibid

[13]Central Prison v. Ram ManoharLohia, AIR 1960 SC 633