Blog/Posts

My Items

I'm a title. ​Click here to edit me.

COVID 19 AND THE LAW IN INDIA

Corona-virus disease 2019 (COVID-19) is defined as illness caused by a novel corona-virus now called severe acute respiratory syndrome coronavirus 2, which was first identified amid an outbreak of respiratory illness cases in Wuhan City, Hubei Province, China. It was initially reported to the WHO on December 31, 2019. On January 30, 2020, the WHO declares the COVID-19 outbreak a global health emergency. On March 11, 2020, the WHO declares COVID-19 a global pandemic, its first such designation since declaring H1N1 influenza a pandemic in 2009. WHO regulations are legally binding agreement on all it’s members including India whereby all the member countries must make necessary measures- legislatively and institutionally to prepare for international public health risks. Now through legal point of view, the Constitution of India under Article 245 specifies basis for division of powers between the Center and the states and under Article 246 explains distribution of law-making power between the Center and the states. According to Seventh Schedule of the Constitution of India Public Order and Public Health comes under the State List, thereby, state governments have the authority to deal with issues relating to Public health and order but according to Entry 29 of the Concurrent List in Seventh Schedule center has more power than states to make a law and take certain actions in preventing the spreading of infectious diseases from one state to another. Therefore, Center has come up with national lock-down and it is implemented across the states. National Disaster Management Act, 2005 is the key empowering provision for the lock-down to exist. The lock-down has been carried out by state governments and district authorities on the directions of the Union Ministry of Home Affairs under the said act. Under the Act, the National Disaster Management Authority (NDMA) was set up under the leadership of the Prime Minister, and the National Executive Committee (NEA) was chaired by the Home Secretary. After being satisfied that COVID-19 is a pandemic as per WHO the National Disaster Management Authority headed by Prime Minister directed the Center and states to ensure social distancing as per section 6(2)(i) of the Act and the National Executive Committee headed by the Home Secretary directed the lock-down orders with specific details as per section 10(2)(l) of the Act. The invoking of National Disaster Management Act has allowed the Union government to control the pandemic and to communicate seamlessly with the States. Government of India is taking all necessary steps to ensure that we are prepared well to face the challenge and threat posed by the growing pandemic of COVID-19. In our country, disobedience to the rules set out by the government to control COVID-19 is punishable with Section 188 of the Indian Penal Code,1860. Under this section, whoever, knowing that, by an order promulgated by a public servant, disobeys the order, and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with an imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Failure to take requisite precautions despite being aware of the possibility of the spread of such infection or disease is punishable under Sections 269 and 270 of the IPC. Under Section 269, whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description up to six months or fine or with both fine and imprisonment. Under Section 270, whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Disobedience to quarantine rule is punishable under Section 271 of the IPC with imprisonment of either description for a term which may extend to six months, or with fine, or with both. Tough times never last, but tough people do. We should strictly follow the guidelines laid down by the government. We all need to understand the repercussion of not following the rules laid down by the government and the catastrophic effect on the whole country if we disregard the precautionary measures mandated by the State. -Avish Bhati Advocate at High court of Delhi https://www.linkedin.com/in/avish-bhati-9053281a6?lipi=urn%3Ali%3Apage%3Ad_flagship3_profile_view_base_contact_details%3BduXgZr0GSmWPJ4l0v8r1SA%3D%3D

Collective Responsibility Under the Constitution And Covid 19

‘You cannot escape the responsibility of tomorrow by evading it today.’ – Abraham Lincoln Under the Indian Constitution, the working of an executive is crucial, significant,, and yet very powerful. During the days of COVID 19, it is the executive, which enjoys maximum powers with minimum responsibilities. Although, the Constitution does not envisages ‘minimum responsibilities’. However, when the current situation is out of control; the executive mechanism usurps the power and authority to control 1.30 billion people with a stroke of a pen. No doubt, we have a parliamentary form of government and head at the Centre is the Prime Minister. Jennings describes in his ‘The Office of Prime Minister’ – him as the ‘keystone of the Constitution’. In the present crisis, he is the source of power and each executive sees him and learns through his style that how to administer his own department, section or to rule on people by putting a punitive lockdown (Though, unlock-1 is just begun). Of course, this is for the safety of the public at large in our Social-welfare State. However, a certain methodology of lockdown is questionable. Apart from Prime Minister, there is also a council of ministers under the Constitution, who composes the government. They work for people, society, and the entire nation. They are having power, influence, and authority to act. They are accountable to Parliament and in turn to people of India. They cannot be an autocrat or act like a monarch. They are in power because they have won the confidence of the people. In recent times, however, it proved a testing time for them. Experts of the Constitutional Law know that Parliamentary form of government runs on the principle of collective responsibility, which represents ministerial accountability, as per the view narrated in the 7th Edition of the Constitutional Law by M P Jain. Article-75(3) of the Constitution states that: ‘The Council of Ministers shall be collectively responsible to the House of People.’ (Lok Sabha) This principle of collective responsibility is the very basis of the working of the parliamentary form of government. At present, when the various affairs of the Government – Executive are at stake, we hardly find any whisper about the collective responsibility. Though, we have Labour, Home, Railway, Finance, etc. Ministers, but we do not see their individual impact except few, much less any collective responsibility as enshrined in the abovementioned article. Constitution is our strength. Constitutional law gives us the spirit to stand by the strength. However, sudden commands issued by the executive for the people – to regulate their conduct, to curtail freedom, and to shut their doors at once are quite absurd and suffering from autocratic bias. We do not see that each Minister has been taken into confidence for such (present) cabinet decisions, though, no Minister has expressed any dissent, but people have not seen any deliberations on any of the issues (apart from few meetings shown on Television), which directly and severely affect the entire population of the country. Policies of the Government during this long lockdown period are abrupt, scattered,, and dubious. Due to lack of healthy discussions at any point in time either in the Parliament or outside, people are unable to see any viewpoints or differences within the Cabinet, as all roads in the present Government lead to the Prime Minister only. Even the opposition has shown very little courage to display any objections on vital differences in open and also on the matters of fundamental policies in question. It appears that the present Cabinet is not working as an effective decision-making body, but merely obliging the head of the Council of Ministers by ratifying everything. Hence, the situation is emerging in our country that the entire concept of collective responsibility is almost on the verge of dilution. Generally, the responsibility comes from rights. Executive under the Constitution is exercising its powers through such authority, but without any kind of legal obligation to follow the Constitutional spirit. The clear reason is the centralization of power. Our Constitution pitches for the federalism, distribution of powers between States and Centre, and also envisages decentralization of local and State Government bodies. However, the real picture is otherwise. We are heading towards powerful anarchy with the tool of mobocracy – newly born from the democratic monarchy. Any decision of the Government entails collective responsibility. Whole Cabinet is accountable for its decisions. They are answerable to Parliament. Our hue and cry in the time of Pandemics is utterly failed. We have been ruled and re-ruled by each kind of authority, bureaucracy, and/or police. But, hardly anyone has challenged the powers of executive qua lockdown or extensions of lockdown one after another. Earlier executive action and discretion exercised by it used to come under the judicial scrutiny of the Supreme Court and in some cases, it had exercised the powers of judicial review over the action or discretion of executive and held them illegal, arbitrary and atrocious (Common Cause, A Registered Society Vs. Union of India – 1996 (6) SCC 530). Besides, in Shiv Sagar Tiwari vs. Union of India -1996(6) SCC 558, the Supreme Court had started with … ‘Edmund Burke stated as early as 1777: "Among a people generally corrupt, liberty cannot long exist." In 1778, he observed: "An arbitrary system indeed must always be a corrupt one. There never was a man who thought he had no law but his own will, who did not soon find that he had no end but his own profit." 2. According to Francis Beanmount (1584-1616) corruption is a tree, whose branches are of an immeasurable length, they spread everywhere, and the dew that drops from thence, hath infected some chairs and stools of authority. 3. In the Encyclopedia of Democracy by Seymour Martin Lipset, Vol.1, page 310, in the Chapter "Corruption", it is stated that corruption is an abuse of public resources for private gain. It is known that bribes open the way for access to the State for those who are willing to pay and can afford to pay. The situation leaves non-corrupt citizen with the belief that one counts only if one has the right person contact with those who hold power and also allow persons with money power to get things done to their advantage through back door.’ We are forgetting the aforesaid words. Collective responsibility is the robust constitutional convention in our Parliamentary system and to sustain healthy democratic values, it is required to be opened up. In the 1st Volume of Rostrun Law Review, Issue-II, it is stated that: ‘The collective responsibility under Article 75 of the Constitution of India has two meanings: (i) All members of a Government are unanimous in support of its policies (ii) The ministers, who had an opportunity to speak for or against the policies in the cabinet are thereby personally and morally responsible for its success and failure.’(Authored by Romit Raja Srivastava, Symbiosis Law School, Noida) However, it appears that this has disregarded in this testing time due to the deterioration of constitutional values and morality at par. Former President of USA Ronald Reagan once said: ‘The Government is like a baby’s alimentary canal, with a happy appetite at one end and no responsibility at the other.’ Time has come that we not only need Constitutional Morality, but the Constitutional Integrity and Honesty for the rules of Governance. The plan of executive to ambush the people is simply threatening rather than caring. Hence, the Constitutional Courts shall immediately open widest protective umbrella for ‘we the people of India’. - Kashyap Joshi [Advocate practicing at the High Court of Gujarat and Visiting Faculty at the Institute of Law, Nirma University, Ahmedabad]
SEE LINKEDIN ACCOUNT OF THE AUTHOR

ONLINE PRIVACY LAW- A Prime Concern

WHAT IS THE DEFINITION OF ONLINE PRIVACY? The definition of online data protection is the level of data protection for a person who is connected to the Internet. It covers the level of online security available for personal and financial information, communication and preferences. Internet users often try to improve online privacy with antivirus software, choose secure passwords, disable tracking, check website security, and choose more stringent privacy policies. Online privacy risks range from phishing scams to malware, while website security issues can lead to identity theft. WHAT DOES DATA PROTECTION MEAN ON A COMPUTER? THE INTERNET? The complex problem of data protection of computers concerns the use, collection, transfer and storage of your personal data on your personal devices and on the Internet. Personal information about your habits, purchases, and location can be collected from your phone, GPS, and other devices and possibly shared with the third parties as well. Internet and device users have the right to request the use of the information and to view online privacy policies. What can be done with my data? A complete record of a person can legally earn a nice penny. There are now companies known as "data brokers" that collect and store data from millions of people, regardless of whether they analyze, pack and sell it without the user's knowledge or without their permission. Data brokers collect and sell information to other companies for a variety of reasons, including targeted advertising, credit risk assessment, and direct marketing. Fortunately, this data is generally anonymized and does not contain any personal data. INTERNET PRIVACY LAWS Cyber ​​threats come from many sources, each of which tries to obtain personal information (IP) for profit or use. With the increasing complexity of the interventions, the necessary regulatory and internal protective measures are increasingly required. Data protection on the Internet is a subset of the larger world of data protection, which usually includes the collection, use and secure storage of IP addresses. Data protection on the Internet mainly concerns the threat to intellectual property on the Internet through tracking, data collection, data exchange and cyber security threats. A study by the Pew Research Institute found that Internet intellectual property control is "very important" for 74% of Americans. According to another Pew study, 86% of Americans have taken steps to protect their privacy - delete cookies, encrypt emails, and protect their IP addresses. Digital fingerprints are everywhere. Whether you visit a website, enter your credit or debit card information, open an account, enter your email address, fill out online forms, post them on social media, save photos or documents in The cloud storage and share personal information in cyberspace. The question arises who gets the intended recipient or has access to the information that you provide? Will it be shared with other parties? Your POI may be published unexpectedly or unknown. Your information can be compromised because even the best information security programs are not 100% guaranteed. The risk of privacy breach on the Internet has increased considerably over the years. There is no single law to protect online privacy. Instead, a number of federal and state laws apply. Some important federal laws on online data protection are: 1.The Federal Trade Commission Act (FTC) [1914] - regulates unfair or misleading trading practices. The FTC is the most important federal regulatory authority in the area of ​​privacy and takes coercive measures against companies. This includes non-compliance with published data protection guidelines and inadequate protection of personal data. 2.Electronic Communications Privacy Act (ECPA) [1986] - protects certain wired, oral and   electronic communications from unauthorized interception, access, use, and disclosure. 3.Computer Fraud & Abuse Act (CFAA) [1986] - makes certain computer activities illegal, which include unauthorized access to a computer to obtain certain information, to defraud or receive something valuable, to transmit harmful material or to manipulate words. The law was changed six times till now. 4.The Children's Online Privacy Protection Act (COPPA) [1998]-requires certain websites and online service providers to obtain verifiable parental consent before collecting, using, or disclosing personal information from minors under the age of 13. In addition, websites need to collect online privacy policies, collect only the necessary personal information, and establish and maintain adequate security measures. 5.Control of Attack on Unsolicited Pornography and Marketing (CAN-SPAM Act) [2003] - regulates the sending of unsolicited commercial emails and prohibits misleading header information and misleading subject lines. Senders must also disclose certain information, include a valid opt-out mechanism, and impose civil and criminal penalties for violations. 6.Financial Services Modernization Act (GLBA) [1999] - regulates the collection, use and disclosure of personal data collected or stored by financial institutions, and requires customer communications and a written information security program. 7.Fair and Accurate Credit Transactions Act (FACTA) [2003] - requires financial institutions and creditors to maintain written identity theft prevention programs. Here are five of the most significant online threats to data privacy coming from the web and best practices to handle them: 1.Unsafe practices when surfing the Internet Most of the time users don't check the websites they visit that are secured or not. There are often signs that the websites you visit are malicious and request your IP address: free offers, shortened URLs, pages that are socially designed to trick users into creating an account and downloading malware from them. What you can do? Keep your anti-virus software up to date. Use the safest internet browser - Google Chrome or Microsoft Edge are the two best options available in the market. Scan the files with your antivirus software before downloading them. Do not use the same passwords for multiple websites. Activate the pop-up blocker in your browser. 2.Cookies and web tracking Cookies are files that are downloaded from a website to your browser and contain unique, identifying information about the website. However, they do not contain any personal information or software codes. When a website "sees" the data set in a cookie, it knows that the browser has already contacted you. They can be useful, for example, to store your site credentials so you don't have to re-enter them. Cookies can also be used to track your activity and record your shopping habits. They can then be passed on to unwanted third parties who are connected to the website. What you can do? Configure your browser so that cookies are deleted every time you are finished browsing, or set the cookies to deactivate your browser so that cookies are not permitted in your browser at all. 3.IP address tracking COPPA law expressly states that IP addresses are personal information because they are information about an identifiable person associated with them. An Internet Protocol (IP) address is a numerical designation behind the well-known web addresses we see every day. It identifies a device on the Internet. Hackers often encounter IP addresses as the first point of attack. Unwanted parties can track your IP address by finding your website address if it is listed in WHOIS, the central database of all web addresses on the Internet. Information on the properties can be found here. What you can do? While setting up a website, you can request a private WHOIS list from the Network Solutions database manager. Your name, address and other property information will appear in place of yours. If you are working on your PC, you can use a VPN (Virtual Private Network) tool. One good thing is IP Vanish. You connect to the VPN as an intermediary. Your IP address is then encrypted and sent to the Internet via the VPN provider. Employees or home customers have “leased” IP addresses with their cable modem and ISP accounts. Your IP address does not change until you turn off your modem. Turn it off as often as you like. 4.Use HTTP instead of HTTPS encrypted web server connections Personal information that flows between a user's computer and a website using a simple HTTP protocol can be monitored by other companies, or possibly intercepted and stolen by malicious hackers (often called " the middle man "). This is where Secure Sockets Layer (SSL) comes in. What you can do? HTTPS or SSL (Secure Sockets Layer) encrypts information sent between a website and a user's computer. When buying or entering personal information from websites, always look for an "https: //" icon or a padlock in your browser's URL bar to make sure a website is secure before entering personal information. If you see HTTPS instead of HTTP in the address bar of your browser, you know that it is a secure site! When hosting a website, you must implement SSL on your web server to ensure data protection between you and the client. It will also help mitigate threats of direct hacking. You should find a digital certification authority (CA) like Verisign for easy configuration. 5.The threat of the cloud Cloud computing is the latest and greatest technology wave that poses new problems for data protection. This is particularly true if you entrust administrative and technological controls to an external third party. This in itself is a major threat. A cloud provider may lack security processes, security practices, employee controls, application interfaces, and APIs to name a few. You also never know who has the "Kingdom Keys" to display all your data. Creepy, quite enough! What you can do? You and the cloud provider are responsible for security, not just the cloud. When storing data in cloud storage or hosting a website through a cloud platform, keep the following in mind: 1. Ask the provider who is responsible for each cloud security check. 2. Train someone to use the provider's identity and access tools so you can control who has access to your data and applications. 3. Make sure that all of your data is stored in encrypted form at the provider 4. All major cloud providers offer logging tools. Use them to enable logging and automatic security monitoring and to monitor unauthorized access attempts and other issues. 5. A combination of government regulations and responsible individual practices can only thwart and not eliminate potential cyber threats. Your compliance and legal departments can do their part by implementing comprehensive threat analysis and response measures. -VAIBHAV SRIVASTAVA Lloyd Law College Registration link for Social webinar and international essay writing competition-https://www.lawtsapp.com/event-oppurtunities

Glimpses of Right to Information Act

Great things require a lot of struggle to convert them into reality particularly when it’s directly related to the common man. Well, it all started with a commitment in 1977 as the Janta Party in their election manifesto promised “an open government‘’. The struggle of RTI is almost thirty years long which involved lawyers, students and activists along with common people which resulted in the passage of Right to Information Act, 2005.  The Preamble of RTI ACT, 2005 acknowledges information as an important tool for citizens, and guarantees access to information under the control of public authorities. India is a democratic Republic and democracy surely requires informed citizens to keep checks and balances on the Government. In fact, the Supreme Court in a landmark case of MR. Kulwal v/s Jaipur Municipal Corporation held that Right to Information comes under the ambit of Freedom of Speech and Expression under Article 19 of the Constitution. Since then RTI became an important tool for citizens for acquiring information from public authorities and keeping an eye on public spending. Scams and corruption at a large scale in the system was in public including Adarsh and Commonwealth Games Scam due to application of a RTI.  In June 2013, Central Information commission brought six political parties of India under the ambit of public authority to make the system more transparent. The following political parties didn’t accept the decision and brought a bill to amend this decision of the Information Commission, by stating the ongoing provisions in Representation of People’s Act, 1951 and Income Tax Act, 1961. Statement of Objects and Reasons of bill said the ongoing provision already dealt with financial aspects of political parties and their candidates. The bill was lapsed in the Parliament but till now, political parties don't comply with the ruling of the Central Information Commission. Now, analyze the scenario that if you could access the information related to the funding of political parties and other benefits that they get. But almost every political party was  on the same line and declared themselves out of the definition of “political authority’’. This was a classic example of how government institutions are diluted and along with curtailing the right of citizens. A similar successful attempt was made in 2019, by amending the RTI and questioning the independence of the Information Commission. To be more blunt, a classic example of centralization of power can be seen in the amendment. Now, the Central Government will decide the term, tenure and salaries of Information Commissioners both at the centre and state level. The amended Act has changed Sections 13 and 16 of the RTI ACT, 2005. Section 13 of the original Act sets the term of the Central Chief Information Commissioner and Information Commissioners for five years (or until the age of 65, whichever is easier). It has been replaced now with “for such term’’ as may be prescribed by the Central government. RECOMMENDATIONS Hence, in my opinion many attempts have already been made to dilute such a progressive law which was formulated on the core principles of democracy. Democracy which requires informed citizens, so that they choose the right representatives to govern and represent them in the legislatures. For this, RTI has to be strengthened with some changes like the Information Commission should be granted Constitutional Status from the present Statutory Authority. Cooperative Federalism is an important element of democracy, so States should have a say on the formation of State Information Commissions. Political Parties should appoint Public Information Officers in order to grant information under right to information. Information Commissions should be treated as an independent institution so as to maintain the flow of information without any prejudice and pressure. https://indiankanoon.org/doc/778875/ https://www.orfonline.org/expert-speak/amended-rti-act-what-at-stake-53573/ -Aditya Dubey Lloyd Law College

INTERNATIONAL ARTICLE/ ESSAY WRITING COMPETITION

Registration- FREE !! https://www.lawtsapp.com/event-oppurtunities Prizes and perks* :  Cash prize  Lifetime mentorship @ hi-r.co.uk  e- certificates to all participants Learning is an ongoing process and becomes phenomenal when It is recognized or is appreciated. This pandemic has made us helpless but as usual, we know how to make our way with all the emerging situations considering all the precautionary steps and here Lawtsapp.com comes up with this initiative to share your views and burgeon your personality by adding utility to your time. Lawtsapp.com is giving you all a chance to assemble your thoughts on a paper and in return, you will get a chance to win stimulating prizes. Themes  “ The COVID 19 Pandemic has led to a decline in respect for the rule of law. Discuss”  Black lives matter: what lessons can be learned from the most recent insurgence of the black lives matter movement and how should government respond?  Celebrating LGBT Pride: why I no longer need to hide my rainbow? Last date for submission- 3rd July, 2020. https://www.lawtsapp.com/event-oppurtunities Prizes and perks :  Cash prize  Lifetime mentorship @ hi-r.co.uk  e- certificates to all participants Register - https://www.lawtsapp.com/event-oppurtunities Contact Ranjeet Pawar 6355306939 Yash Srivastava 9140134815

Doctrine of Absolute Liability: Vizag Gas Leak Angle

Introduction: When the whole country was asleep after battling another day with the fatal COVID-19 pandemic, a village and almost a dozen of its people fell prey to a deadly gas leak. Several succumbed to death and hundreds were admitted to the hospital. No one could have wondered, that a factory existing there for decades could do such harm. In the wee hours of March 7, a toxic gas and benzoic compound "Styrene" leaked in the Venkatapuram Village from LG polymer factory situated near the village. The village is in Vishakhapatnam (Vizag) located in Andhra Pradesh. Environment Protection Agency(EPA), a US-based agency has explained the long term and short term effects of exposure to the Styrene gas. The short term exposure causes respiratory difficulties, irritation of eyes, nasal mucous membrane and gastrointestinal issues. Whereas, a long term exposure can affect the liver, kidney, Central nervous system CNS and may be carcinogenic in some cases leading to cancer. What caused the leak? As per the revelations made by LG Polymers, stagnation and changes in temperature resulted in the gas to vaporise. On the other hand, Forensic experts  from the Andhra Forensic Science Laboratory have revealed that the mishap is a consequence of human error and delinquency. There was certainly gross negligence on the part of the company LG Polymer as it omitted to add auto polymerization inhibitor in the storage tank containing styrene and also neglected to maintain the temperature below 20 degrees Celsius. Experts further said that styrene is a liquid hydrocarbon which needs to be cooled under certain specific temperature failing to which it can percolate and evaporate in the atmosphere as vapour. Tertiary Butyl Catechol is added in order to prevent leakage and evaporation. National Green Tribunal (NGT) has imposed an interim penalty of Rs 50 crore on LG Polymers due to the damage caused to Public health, Environment and Life. As per the Rule 2(e) of Schedule 1 of the Manufacture, Storage and Import of hazardous chemical Rules 1989,  "Styrene gas" is defined as a hazardous chemical, which also requires on and off-site plans ensuring destruction and damage. NGT has also specified that the leakage of hazardous gas attracts the principle of Strict liability. Now, the question arising is, “what do we mean by strict liability and how is it emanated?”. What is Absolute Liability? According to the Doctrine of Absolute Liability, “anyone who is engaged in storing or processing inherently dangerous or hazardous substance, should do so at his own peril. This is because he’s aware that the substance so concerned, can cause damage if it escapes. The person will be held absolutely liable for all the foreseeable consequences of the escape without any exception or excuse. It is a type of no-fault liability, as one is deemed to be liable for the act which they never intended to do. There are certain important elements of the doctrine: · Dangerous Substance: The defendant is only held liable when the substance he brings to his premise is hazardous in nature and is capable of doing some mischief or damage on its escape. · Escape: This is the second vital element which says that the defendant will only be held liable if the dangerous substance escapes and is no longer in the control and supervision of the defendant. · While evaluating the case it should be assessed that there should be a special use which makes others exposed to the hazard. For example, the planting of a tree on the land is a natural use but at the same time if the tree thus planted is a poisonous one, and can be a threat to people, such can act will attract the application of this doctrine. Evolution of this concept Tracing the inception and evolution of Absolute Liability Doctrine, one reaches to the Doctrine of Strict Liability from which the former derives its existence. The Doctrine of strict liability was established in the well-known case of Rylands V. Fletcher in the year 1868. According to the facts, Fletcher, the defendant in the case had a mill near Ainsworth in Lancashire and wanted to improve its water supply. Further, he constructed a reservoir to power the mill. He employed reputed efficient engineers. When the reservoir was filled, the water flowed down to the plaintiff's coal mine through disused mine shaft as it was not sealed properly. The water flooded the plaintiff's land and mine. Ryland filed a suit against Fletcher. The court hereby decided that Fletcher, the defendant was liable as he built the reservoir and kept such a thing which could do mischief if it escaped. Owing to the non-natural use of land he was held strictly liable according to the facts. The doctrine of Strict Liability states that if anyone keeps or brings any hazardous or inherently dangerous substance/material, being on the premise should bring it at his own peril. If the substance is likely to do mischief or can cause destruction on it's escape, the owner of the premise who brought the thing is liable to all the consequences if that dangerous thing escapes. The doctrine also has the same elements as of absolute liability but it also has  exceptions or defences given to the defendant which he can claim to exempt himself from the liability. There are different exceptions like Act of God(Vis Major), Plaintiff's own fault, Act of third party and consent of the Plaintiff. Although the principle of Absolute Liability was prevalent since 19th century but it arrived late in India. It was only after the historic judgement of the case of MC Mehta V. UOI that Indian judiciary felt the need to apply it in the Indian subcontinent. Just like the gas leak of vizag, oleum gas leaked in certain areas of national capital Delhi, due to which many people suffered. The Supreme Court decided that the defendant company would be liable for the damage caused without considering exceptions. The rule which was laid down in the MC Mehta V. Oleum was also followed while deciding The Bhopal Gas tragedy case. Strict liability was a very old principle established in the 18th century. Our world is dynamic and so were the issues. As a result, there was an urgent need of reconstruction of the old principle according to the need of hour. This two-century old principle neglected the industrial growth and high rate of scientific advancement as well as it’s aftermath. Earlier, industries could get away with damage caused to the environment, public health and life by using any of the exceptions or with money and wealth. But in today’s scenario, they are held responsible for every act. We all  know that India is on it’s way of developing its economy and hence it was crucial to have such a principle to protect the people of our country. As the principle of strict liability was old, it was declared to be redundant in India by our honourable Supreme Court in 1987. Absolute Liability with respect to Vizag Gas Leak In the present scenario concerning the vizag gas leak mishap it is necessary for the government to take stringent action against the LG Polymers under Absolute Liability principle. The gas which leaked is a hydrocarbon named Styrene; which according to the Environment Protection Agency EPA, is a toxic gas that can inflict serious health issues to people who inhale it. This concept was only established to punish and penalise those who put environment and life at stake. As decided previously in the cases of Bhopal Gas tragedy and MC Mehta V. Oleum gas leak, defendants should be held absolutely liable without giving any exception. Critical Analysis The use of the term Strict liability by National Green Tribunal in the Vizag gas leak issue attracts attention. As specified earlier, it has already been declared redundant by the Supreme Court of India in the year 1987. Applying the principle of Strict Liability to the industries engaged in hazardous materials, if the material escapes either by accident or act of God (natural calamity unforeseeable by human) the corporation will not be held accountable or liable and hence gets exempted from paying the compensation for damage caused. Committee of forensic experts formed to probe the Vizag gas leak, revealed from their reports that it is not a mere accident or Act of God but gross human negligence. The prima facie evidence shows that the temperature was not maintained i.e. it was not below 20°celcius by the company and it also omitted to add auto polymerisation TBC tertiary butyl catechol in to the tank containing styrene.  National Green Tribunal Act of 2010 has defined Absolute Liability principle. Section 17 of the Act says that any corporation dealing in inherently hazardous substance has to compulsorily pay damages( compensation) irrespective of the fact that the damage was caused by negligence, accident or Act of God. The section makes it necessary for NGT to apply Absolute Liability principle even if it is caused by accident. NGT went wrong in assessing and applying Strict or Absolute liability principle but has indeed slapped an interim penalty of Rs. 50 crore on LG Polymers. Absolute Liability has its own limitations. The principle is more stringent and does not consider any plea regarding accidents or anything beyond human control and foresight. It has limited applicability as it only aims to punish industries engaged in hazardous substances and ignores the negligence of professionals like Doctors, Lawyers, Engineers etc. The principle also hinders the incentives of people who dream of establishing new businesses as they are in constant fear of facing legal consequences without even their fault. The concept of non-natural use of land varies from place to place as the courts in India recognized storing water in large quantity as an exception to the principle. The reason is that, storing water is necessary according to the agricultural conditions peculiar to the country. We should notice that there is a need for flexibility in the rule so that an innocent does not get punished. Conclusion The principle of Absolute Liability is Plaintiff oriented which aims to apply Criminal or Tort laws on the corporate bodies. It is done to ensure that innocent victims do not suffer on the account of one flourishing his business. In fact, no one should suffer from the mistake or negligence of others. If the destruction is a result of an inherently hazardous substance, it is the full responsibility of the Defendant to stave off such a mishap. We can see that the Judiciary has a very significant role to play. It has the sole responsibility of altering laws to adjust them to the contemporary needs of society. The progressive approach taken in the case of MC Mehta made it difficult for the companies to make excuses or defences and get exempted from assuming liability. With the principle of Absolute Liability, it became easy to secure Right to life of the people enshrined within the Constitution of India. The refined approach is praiseworthy and commendable as it didn't wait  for the courts in England to change the laws but instead brought substantial changes in the Indian legal system itself. Laws from time to time are ought to be renovated and should be moulded to fit the needs of society. The rule of Absolute and Strict Liability should be seen as an anomaly; commonly a person is liable and punished for his own acts or omission of legal duty but here one gets punished even without his own fault or mistake, thus it is also known as "No-fault liability". We can hence conclude that from being a no-fault liability with exceptions, strict liability had gone a long way to evolve itself into Absolute liability in order to suit the present issues. Vizag Gas leak has done tremendous loss to human life and environment referring to which the government should take stringent action to curb such accidents in future. -Avinash Kumar Team Lawtsapp

Constitutional Law: Doctrine of Eclipse

If the Moon can get over shadowed by eclipse, it is still a law! Yes! Just like the beautiful moon gets overshadowed many times in a calendar year just to remind us that to every bright side there is a dark one, which is inevitable and hard to ignore. This doctrine similarly functions to overshadow the delusional bright side and helps to safeguard the Fundamental Rights of the citizen. The Doctrine of Eclipse has been enshrined in the supreme law of land The Constitution of India in article 13. Constitution is the prominent law book which tries to strike equilibrium between the state and it’s citizen, so that those in authority and powerful position do not try to invade the rights and liberty of their fellow citizens. Everyone is subjected to follow the provisions of the Constitution; to see that it does not become stagnant certain principles have been devised in order to guide policy makers and safeguard the inalienable rights of the citizen. One such principle is the Doctrine of Eclipse mentioned in article 13, part III of constitution. According to the Doctrine, Constitution makes those Laws void ab initio and unenforceable if such a law violates and is inconsistent with the Fundamental Rights mentioned in the part III of The Constitution. Fundamental Rights have a prospective effect and as a result of its operation if any law tries to harm the liberty given under them; this principle just makes it inoperative and not altogether a dead law. This article also restrains the Central and State Government to make such laws which can infringe, takeaway the inviolable rights. Any order, ordinance, bye laws, rules, regulations, custom, tradition and usage if it is incompatible with the Fundamental rights of the people it is deemed to be unenforceable and non-binding in the country. Tracking the inception and the evolution of the Doctrine of Eclipse in India one can catch a glimpse of the doctrine being repeatedly utilized in the cases where there is an alleged violation of Fundamental Rights. The Doctrine has opened the door for several discussions and reviews which will be evaluated in the later part. The part III of Constitution was made after a thorough research and discussion. When the court strikes a part of law under this doctrine it becomes unenforceable till that date when constitutional disability is removed either by subsequent amendment in the law or in the fundamental rights. It is thus a significant feature of this that as soon as the Eclipse is removed the law becomes enforceable and binding. There are various salient features of the Doctrine of Eclipse which makes it valuable and unique from other Doctrines. While making the constitution part III was dealt in detail for 38 days. The chief components are undermentioned: · It is an indispensable part of article 13 which is mentioned in the Part Ill of The Constitution which deals with the fundamental rights of citizens. · Fundamental Rights exist from the time when Constitution came into presence. The prime aim of this Doctrine is to shield Fundamental Rights of the people from those arbitrary and erratic statutes or law made by the Government which may be incompatible with the rights and freedom of people. · The Doctrine also pursues to make the pre-constitutional statutes unenforceable and non-binding as far as they violate the fundamental rights. · Doctrine of Eclipse does not altogether repeals or removes the laws but is shadowed by it. It acts like the Valencia filter for the pre or post Constitutional laws. · In future, if there are certain revision or amendment in either the Fundamental Rights or law which was overshadowed and was inconsistent as well as violated the Fundamental rights is now invariant or compatible, the statute will become enforceable and obligatory. Landmark judgements pertaining to the applicability of The Doctrine of Eclipse. After Independence, the Indian courts did the remarkable job of interpreting and evaluating the pre-constitutional laws. This doctrine was introduced and established after a thorough discussion on its applicability on the old laws and how it would influence the essence of our Constitution. In Bhikaji V. State of MP. AIR 1955, there was a Motor Vehicle Act of 1939 enacted by the British government in colonial India. It gave power to the Central Government and State Government to modify the road transport rules. The main purpose of the Law was to enhance the transport facilities for the British Officers and their goods to be traded. Accordingly, the State of MP enacted CP and Berar Motor Vehicle(amendment) Act 1948. This act authorised to take up the whole transport business of the perpetrators and to exclude the motor transport operator as well. This provision of law was valid when it was legislated, but after The Constitution came into existence it became incompatible with article 19(1)(g) of Part III. In the year 1951 clause(6) of the article19 was reconstructed so as to facilitate and authorise the Government to establish monopoly over any business or trade. It was done in furtherance of removing the Eclipse due to the article 13 and make the disputed statute independent from any deficiency or imperfection. After the amendment in 1951, it became enforceable once again against the citizen and non-citizens once the constitutional obstruction was eliminated. In Keshava Madhava Menon V. State of Bombay, AIR 1951: The petitioner, in this case, was prosecuted under the Press Law where he published a pamphlet called, "Railway Mazdooro ke khilaf nai sazish" in Bombay. The offence was booked under the Indian Press(Emergency Powers)Act, 1931. While the proceedings were initiated and in operation, the Trial Court said that it was a case which involved the question of law. While the case was still undergoing it's proceedings The Constitution of India was enacted on  January 26, 1950. A written statement was then filed by the petitioner on March 3, the same year stating that the definition of "Newsheet" given in Section 2(6), Section 2(10), Section15(1) and Section18(1) of the Indian Press(Emergency Powers) Act were incompatible, void and ultra vires according to Article 19(1)(a) and under Article 13. The Supreme court held that the Fundamental rights came into force from the time  when Constitution came into being. The question of inconsistency arose from the date when the Fundamental Rights came into existence. Court held that the law became ineffective and void not completely but to the extent it abridged and violated Part III of The Constitution conferring Fundamental Rights to the citizens. Ambika Mills Limited V. State Of Gujarat AIR 1964, In this judgement it was ruled out that if a law which has been enacted after The Constitution came into force and infringes the Fundamental Rights of Citizens it doesn't mean that it is void for Non-Citizens as well. The honourable Supreme Court held that non citizens cannot avail fundamental rights and therefore are not allowed to take the benefit of voidness and inconsistency of law under Article 13 of the Constitution. Therefore even if the Fundamental Rights of a Citizen is being infringed by a law the same law will be applicable to non-citizens without being Eclipsed by the Doctrine. In Shankari Prasad V. Union of India AIR 1951: In the year 1951 the fundamental right to property was wiped out. The removal of this right was questioned in this case. The Constitution of India provides for its amendment in article 368 through the Parliament. As Fundamental Right is also a part of Constitution it was valid for the Parliament to amend Part III as well.  Supreme Court said that taking away of the Fundamental rights in the prescribed constitutional way was valid. Similarly in Golaknath V. State of Punjab AIR 1967 it was held that if the need for amendment arises in any case it should be constitutional and left the Parliament without any authority to curtail the fundamental rights thus it eclipsed article 368 of the Constitution. Later in the year 1973, the distinguished Keshavanda Bharati V. State of Kerala once again gave  power to the Parliament to amend Indian Constitution as well as the Fundamental Rights without altering the Basic Structure of the Constitution. In this way the eclipse was removed from article 368. Deep Chand V. State of Uttar Pradesh AIR 1959 it was decided that any law made after the year 1950 i.e.; after the Constitution came into force if that law further infringed Fundamental Rights it will be declared to be void ab initio and the doctrine of eclipse will cease to operate. Critically analysing The Doctrine of Eclipse one can notice that a previously declared void law can be restored. But the point should be noted here is the law which was declared void and non-binding on certain sensitive and critical ground of infringement of Fundamental rights is re-enacted in order to save administrative difficulty and expenditure, should they revive automatically? Without any supervision. It is possible that the same law may affect different Fundamental right now! It has been well established that our Constitution has no retrospective effect it has prima facie prospective effect but the Doctrine of Eclipse seeks to invalidate all pre Constitutional laws inconsistent with Fundamental Rights and makes them void. The use of the word "Void" in Article 13(1) commonly implies that the statute has been repealed and discarded. The Supreme Court in the judgement of Keshavan Madhav Menon, 1951said that the article has only the capacity of nullifying or making it ineffective rendering the former laws unenforceable and non-binding. Thus the infringing statute is only eclipsed or shadowed and not removed completely. Every statute prima facie has the ability of having prospective effect.  This article was added with an intention to give it a retrospective effect as it has been explicitly mentioned that, " All laws in force before commencement of this Constitution". We can thus conclude that The Doctrine of Eclipse is a significant component of part III of the Indian Constitution which epitomizes the theory of constitutionalism given by John Locke which limited the powers of government so that it doesn't act tyrannically. The doctrine has acquired a pivotal role and defends the inalienable rights from being violated. This Doctrine also seeks to restrain the powers of the Central and State Government so that they work and make rules in accordance with the Fundamental Rights given by the Supreme Law Book of the land. It gives maternal nourishment necessary for the survival and upkeep of the fundamental rights. Here is the beauty of the doctrine that it also conserves different statutes from being completely annihilated and erased from the law books by making them non-functioning and dormant for a period till when they can become operative, binding and enforceable. Generally, any statute if declared unconstitutional cannot be revived and it has to go through the whole process in the Parliament and if it attains the assent of President it will be enforced. But if a law has been eclipsed it can revive automatically by any amendment in the said law or the fundamental right. One can comprehend the rationale behind including the Doctrine of Eclipse in the Constitution so that the administrative expenses and difficulty could be removed, as well as to reduce the difficulties of re-enacting the law afresh to save time and money. But it is a matter of concern that the law which earlier infringed the fundamental rights of the people revives automatically without going through scrutiny and debate which any other law has to undergo before re-enactment. Thus is it beneficial for India to revoke the doctrine or should the government take certain steps in order to safeguard the citizens from the misuse of previous laws. One should never back out from difficulties rather they should face adversities valiantly. Without removing the Doctrine of Eclipse Government can certainly try to scrutinise and debate over the laws which were declared void so that The Doctrine of Eclipse can benefit everyone it true sense. -Avinash kumar Team Lawtsapp

Laws In The Reign of Coronavirus

Introduction After the surprising circumstances in the field of the coronavirus outbreak, WHO, a few months later, qualified this plague as a virus. This happened after the disease had crept into almost every nation influencing hundreds of thousands of people and causing many deaths. It was at the beginning that the alliance was named plague after H1N1 in 2009. It left China which prevails at its peak in Italy, in the United States where the virus made more than 3400 verve and the pastorate indicates the population perish rate of the virus represents 1 life in 10 minutes. India observed its first cases in Kerala in the district of Thrissur, then slowly the virus continued to dissipate throughout the region which is found in Haryana, Uttar Pradesh, Rajasthan, Delhi and Maharashtra with the highest number of cases tested positive. Still increasing and adding to the death toll. The councils complied with Section 144 of the Code of Criminal Procedure, 1973 which authorized the arbitrator of any specific area to issue an order to restrict the gathering of four or more people in a locality. All educational establishments were closed and also assessed the ban on social gatherings. The national and international flights were canceled and given the ruinous global issue, the Prime Minister of the country, Mr. Narendra Modi turned out to address the country to stay at their home in the form of a lock and also to avoid move to hospitals. To respond to these problems and limit this issue as soon as possible, each country needs a legal receptacle. A law that authorizes governments to take adequate measures to fight this pandemic. Let us directly flinch into the existing laws that our country has, which provides to the Central as well as the State governments the appropriate force against the diseased person that is to put them in quarantine or to penalize the people or institute action that may violate the regulations made by the appropriate governments. EPIDEMIC DISEASES, 1897 A plague called Bubonic Plague had struck Bombay at the end of the 19th century and had pleaded thousands of lives. This law introduced by the parliaments at the time is one of the smallest laws comprising only 4 sections Anti – plague, activities to reduce the number of people who have fallen prey to the epidemic have involved police searches, isolation of the sick (quarantine), detention in traveler camps and evacuation forced from residents in parts of the city and the demolition of infection from places. Section 1 of the Act deals with the title and scope when it clearly indicates that the legislation will be extended to the whole of India, except the territories which, immediately before November 1, 1956, were included in Part B states. (Now applicable to the whole country). Section 2 of the Act delegates power to the State government/Union Territory when, at any time, it considers that part of its jurisdiction has been struck or threatened by an illness and that none other law does not provide for measures to limit the spread of the same, the government concerned can authorize or authorize any person to take such measures by public notices. It also prescribes that the regulations must be observed by the public or the institution or any category of people who may be necessary to curb the onset of this particular disease. This framework gives the State government the power to make arrangements for the inspection of persons traveling by rail or otherwise and the separation, in hospital, in temporary accommodation or otherwise, of persons suspected by the inspection officer to be infected with such a disease. Section 2A of the same law empowers the Central government to inspect any vessel or vessel leaving or arriving in a port and any person who intends to sail there or has sailed there. Section 3 prescribes the penalty to be imposed on persons who may disobey any regulation or order adopted by the authority concerned or on any person to whom power may be attributed under this Law in accordance with Section 188 of IPC. Section 4 of the Act clearly states that no prosecution or other legal proceeding may be brought against anyone for any act done in good faith and intended to be done under this Act. Disaster Management Act, 2005 The center, in order to combat the new coronavirus, also invoked the provision of the Disaster Management Act, 2005. The center invoked Section 10 of this law, which deals with the monitoring and implementation of the national plan prepared by the ministry. This section confers the power on the Union’s Minister of the interior since he is the president of the National Executive Committee. But recently, he had delegated these powers to the Ministry of Health and Family Welfare, which had ordered the National Pharmaceutical Pricing Authority to make available surgical masks, disinfectants, hand washing because of the novel coronavirus in progress. Recommendation for improving legislation (Epidemic Diseases Act, 1897) being dependent on a law passed 123 years ago like asking a 123-year-old-man to send an email instead of posting a letter, both unable to cope with the basic requirements of life today. The country since independence has proposed various health laws, some of which have become law while others are still bills that need to be passed. One such project is the National Health Bill, 2009, which attempts to provide a legal framework for providing health services to citizens in extreme condition through collaboration between the Center and the State. Such a bill must be passed by the government and all the States must pass it. Various states have their own health laws like the State of Madras, Punjab, Maharashtra, and Goa. These States have their own privacy provision for patients with life-threatening illnesses. For example, the laws of God allow authorities to disclose the name of the person living with HIV (AIDS). The Himachal Pradesh government has made provision for compulsory vaccination by amending the law on epidemic disease. It is therefore right that the priorities of one state may differ from another, but it is time that a uniform or common law be formulated, which obliges all States to hide under one roof and to fight a disease. Section 2 of the 1897 Epidemic Disease Law provides that if the State government is satisfied if the ordinary provisions of the law are insufficient to deal with the dangerous epidemic, it can authorize anyone to take such measures. Here, everyone is a very vague term and the law must specify who should be empowered. India has finally evolved in the field of science and medicine has professionals in the same field who can be licensed. The center should propose an epidemic disease control committee that could deal with future emergencies in countries linked to the epidemic. The board should have the power to decide whether a particular disease has the capacity to threaten the country or not. The board should be included with leading figures in the fields of science and medicine. Conclusion To combat such a belligerent situation, a nation needs an adequate legal framework that provides the authority with an appropriate force to combat such pandemic situations. Our country is doing its best to prevent its citizens from falling prey to this coronavirus pandemic (COVID-19), but there is also a need to strengthen the 1897 Law on Epidemic Diseases. This law is the basis on which the entire response procedure is established. No one can deny that the government is doing its best to save the precious lives of its citizens, but to prevent it from spreading it further, the government has to take some strict actions. It is the time that we show unity and solidarity among the citizens of this country to save our lives. Let us act as responsible citizens for the good of humanity. STAY HOME STAY SAFE. -Avantika Malik Team Lawtsapp

Opposition Inculpate Haryana Government’s Gesture

The Opposition in Haryana has accused the BJP government of saffronising the education sector and shutting down govt schools to open over 900 private schools. The Haryana BJP government has come under direct attack from Opposition Congress and Indian National Lok Dal (INLD) after it decided to shut down 208 government schools in the past three years. At the Haryana assembly, the INLD raised questions as to why the state government had allowed 900 private schools to open while shutting down state schools. The Opposition has also accused the state government of ignoring Right to Education by pushing for privatisation of educational institutions. The Congress has accused the BJP government of poisoning young minds by saffronising the institutions and said it will detoxify the institutions after it comes to power. Speaking to India Today TV, state Congress chief Ashok Tanwar said 50 per cent of the state’s children were deprived of schooling ever since the BJP government came to power. “BJP government does not want that people get education. They want people to remain illiterate. They have tried to saffronise the government schools and are poisoning young minds. We will detoxify the schools after Congress returns to power,” Ashok Tanwar said. Launching a scathing attack on the Manohar Lal Khattar government, senior INLD leader Ravinder Dhull said BJP was hell bent on privatising schools and denying Right to Education to the children of poor people by shutting down government schools and fuelling private schools. “208 government schools were shut down during the three years between 2015 and 2018. On the other hand, the state government gave permission to open 974 private schools. The government is promoting privatisation of education. Private players are being given precedence. They have also reduced the education budget,” Ravinder Singh Dhull said. Closure of government schools has led to widespread resentment among the people. Locals believe that the government schools have been shut down to give way to the private schools which have mushroomed in large numbers in every nook and corner. However, Haryana Education Minister Ram Bilas Sharma refutes the allegations and says the state government was committed to improve the educational standards and have opened Model Sanskriti Schools. Ram Bilas Sharma says the schools in question were shut down due to rationalisation as some of the villages had more than one school, which lacked adequate strength of students. Ram Bilas Sharma also claimed that the decision to open Haryana Model Sanskriti schools has attracted over 50,000 students from well known private schools. He however parried questions why the state government allowed over 900 schools to mushroom in the state. “This was rationalisation as we laid stress on quality education. 50,000 students left famous private schools and joined government schools in Panchkula, Ambala, Kurukshetra, Panipat and Mahendragarh. Children are eager to join Modern Sanskriti schools. So this is rationalization.” “We rationalised the schools and shifted the children to one school for their convenience. We have not shut down any school. We have also upgraded many schools,” Ram Bilas Sharma added. -Advocate Ravinder Singh Dhull Additional Advocate General https://www.linkedin.com/in/rsdhull

Fundamental Duties, Why They Should Be Made Enforceable?

The Constitution of India was adopted by India on 26th January 1950. Part III of the Constitution contains the fundamental rights which are the basis of the Constitution. Part III of the Constitution has been made mandatory and enforceable subject to the exceptions provided therein. Thereafter Part IV of the Constitution contains the Directive Principles of State Policy. It was always felt that the mere inclusion of rights would not serve the purpose in the scheme of the Constitution. It is a known fact that India is a democratic republic; it is run by people’s elected Government. Hence, the citizens also take an active part in the running of the Government. The constitution gave citizens fundamental rights which were made enforceable. It further gave certain directives to the state in the form of Directive Principles of State Policy; which although were not enforceable per-se but serve as a necessary directive for the States to do certain acts. However, no corresponding duty was imposed on the citizens to do or not to do certain acts. In the course of debate of Constituent Assembly, Prof. K. P. Shah, who was the first person to raise the point about the insertion of fundamental duties in the Constitution, had said that the Constituent Assembly ought to enter fundamental duties of the citizens in the Constitution and that should be treated as of the same vigor and force as that of the fundamental rights included in the Constitution. The Constituent Assembly, however, did not include his suggestion. However, the preamble of the Constitution itself acts as a guiding force and imposes a certain duty upon the State to protect basic structure based on which the democratic republic is to run in the future. No corresponding duty was ever cast upon the citizen of India to protect the institution, country, its pride, and its ideals. This long-ranging debate finally ended in 1976 when Indira Gandhi led Government inserted Part IV-A in the Constitution wherein Article 51-A was inserted which talked about fundamental duties by inserting Part IV-A by the Constitution (Forty-Second Amendment) Act, 1976, Section 11 (w.e.f. 3rd January 1977). Subsequently, by another Constitution (Eighty-Sixth Amendment) Act, 2002, Section 4 (w.e.f. 1st April 2010) Item (k) to the List of Fundamental Duties under Article 51-A was added. Thus, Fundamental Duties were inserted in the Constitution for the first time w.e.f. 03.01.1977. Article 51-A in its present form reads as under: “51A. Fundamental duties It shall be the duty of every citizen of India: (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; (b) to cherish and follow the noble ideals which inspired our national struggle for freedom; (c) to uphold and protect the sovereignty, unity, and integrity of India; (d) to defend the country and render national service when called upon to do so; (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; (f) to value and preserve the rich heritage of our composite culture; (g) to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures; (h) to develop the scientific temper, humanism and the spirit of inquiry and reform; (i) to safeguard public property and to abjure violence; (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement; (k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years[1].” A collective reading of the above Article would show that certain mandatory duties have been imposed upon the citizen of India. However, the same is not enforceable by any court of law, unlike fundamental rights. It may also be noted that duties are not self-executing. The state must make a law for its implementation. In the absence of such laws, the duties itself are not enforceable. It is not the case that certain recommendations have not been made to date for making the duties enforceable. The Government of India appointed a National Commission to review the working of the Constitution. Therein there was a committee known as Justice J.S. Verma committee. The committee made a strong recommendation for making the duties enforceable. The recommendations were subsequently accepted by the commission. The commission observed in the report as below: “4. 3.40.3 (i) The Commission recommends that the first and foremost step required by the Union and State Governments is to sensitize the people and to create a general awareness of the provisions of fundamental duties amongst the citizens on the lines recommended by the Justice Verma Committee on the subject. Consideration should be given to the ways and means by which Fundamental Duties could be popularized and made effective; (ii) right to freedom of religion and other freedoms must be jealously guarded and rights of minorities and fellow citizens respected; (iii) reform of the whole process of education is an immediate but immense need, as is the need to free it from governmental or political control; it is only through education that will power to adhere to our Fundamental Duties as citizens can be inculcated; and (iv) duty to vote at elections, actively participate in the democratic process of governance and to pay taxes should be included in article 51A. …” In its recommendations, Justice Verma Committee in Chapter entitled “Salient Recommendations” under the heading ‘Operationalization Overview’ observes as under: “Duties are observed by individuals as a result of dictates of the social system and the environment in which one lives, under the influence of role models, or on account of punitive provisions of law. It may be necessary to enact suitable legislation wherever necessary to require obedience of obligations by the citizens. If the existing laws are inadequate to enforce the needed discipline, the legislative vacuum needs to be filled. If legislation and judicial directions are available and still there are violations of Fundamental Duties by the citizens, this would call for other strategies for making them operational.” The matter came up for consideration before Hon’ble Supreme Court of India in the case titled as Hon’ble Shri Ranganatha Misra versus Union of India and others cited as 2003(7)SCC 133. Therein it was prayed that Hon’ble Supreme Court may issue directions to the State to educate citizens regarding the fundamental duties. Hon’ble Supreme Court while taking note of the report mentioned above; disposed of the petition by issuing the direction that the State shall take note of the recommendations made by the Committee and implement the same as early as possible. The question of enforceability of the fundamental duties came before Hon’ble Supreme Court of India in a matter relating to reservation in A.I.I.M.S. In A.I.I.M.S. Student Union versus A.I.I.M.S., cited as 2002(1) SCC 428, Hon’ble Supreme Court while discussing the Article 51-A, observed as under: “Almost a quarter-century after the people of India have given the Constitution unto themselves, a chapter on fundamental duties came to be incorporated in the Constitution. Fundamental duties, as defined in Article 15-A, are not made enforceable by a or Court just as the fundamental rights are, but it cannot be lost sight of that duties in Part-IVA – Article 51A are prefixed by the same word ‘fundamental’ which was prefixed by the founding fathers of the Constitution to ‘rights’ in Part III. Every citizen of India is fundamentally obligated to develop the scientific temper and humanism. He is fundamentally duty bound to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievements. The state is, all the citizens placed together, and hence though Article 51-A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is the collective duty of the State. ……… ……… Fundamental duties, though not enforceable by a writ of the court, yet provide a valuable guide and aid to interpretation of constitutional and legal issues. In case of doubt or choice, people’s wish as manifested through Article 51-A can serve as a guide not only for resolving the issue but also for constructing or molding the relief to be given by the courts. Constitutional enactment of fundamental duties, if it has to have any meaning, must be used by Courts as a tool to tab, even a taboo, on State action drifting away from constitutional values.” Why the fundamental duties be made enforceable? This is a wide-ranging debate but here it is necessary to clarify the views of some of the renowned thinkers of the society. It was once said by Mahatma Gandhi, “I learned from my illiterate but wise mother that all rights to be deserved and preserved come from duty well done.” Albert Einstein who is credited with the discovery of the theory of relativity once said that “every day, on hundred occasions, I remind myself that my mental and physical life depends on the toil of other persons, living or dead. So I must try to repay whatever I have received and am receiving”. Freedom is the basic right for any human being who is born in this world. But, in case we assume a situation wherein everyone is free to do whatever he desires. Such a situation will lead to disasters and can’t be possible. So, to maintain freedom of a human being all his fellow human beings must have some duty to protect his freedom. That is where the duties become inseparable from the right. In the words of Walter Lippman, the philosopher-journalist, “for every right that you cherish, you have a duty which you must fulfill.” The same is based on the basic principle that to maintain freedom a duty must be imposed upon all to protect that freedom. For example, freedom of religion is a fundamental right as guaranteed by Article 25 and 26 of the Constitution of India. To protect this right, a duty has been cast upon the citizen of India under Article 51-A (e) which makes it obligatory for all citizens to promote brotherhood, religious tolerance. Without citizens respecting the religion of fellow people; the guarantee as given under Article 25 and 26 is bound to fall. A right possessed by one person involves, on the part of another or of others, the obligation to respect that right. This obligation is called duty. We may, therefore, define duty in the abstract as a moral bond or obligation of doing or omitting certain acts in favor of another person. The act itself that ought to be done or omitted is the concrete duty. Every duty then supposes a corresponding right, and every right a duty: right and duty are correlative and inseparable[2]. Right is a moral power existing in one person, which gives rise to an obligation in another. Hence, rights and duties are inseparable. The constitution is a guiding force behind our nation and its principles must be respected and adhered to not by the State but also by the people of India as both have to work together to make India a better place. It is thus needless to mention here that the fundamental duties must have some enforceability so that people of India respect the basic ideals which formed the basis of the Constitution of India. [1] Inserted via 86th Amendment on 12th December 2002 [2] A brief textbook of moral philosophy by Rev. Charles Coppens, S.J., 1895, Catholic School Book Company -Advocate Ravinder Singh Dhull Additional Advocate General https://www.linkedin.com/in/rsdhull

THE UAPA ACT: ANALYTICAL DELINEATION

During early years there were various organisations and associations that were not willing to be part of India. They acted like a bad fish that would manipulate the thinking of its whole surrounding. Those associations or organs that were made functioned against the interest of the country were put on rest (ban). Article 19 of Constitution of India guarantees fundamental freedom of expression, assembly and associations had been continuously defanged since 1951. By the very First Amendment Act 1951 several changes were made to the fundamental rights provisions of the Indian constitution. Few words like "reasonable" before restrictions and "public order" as being on more ground for abridging fundamental rights were then added in the Article 19 of Indian Constitution. In the 1960's Indo-China war happened, and then Indian government thought that there are communist parties who favour China during the war period. There were few politicians as well who openly favoured China. On the other hand in Tamil Nadu protests were going on against Hindi language at that time. DM Party (Dravida Munnetra Kazhagam) openly said that if they came in power they'll demand for secession. So to control all this, changes were needed that brought up the amendment and gave rise to the formulation of UAPA. An Indian law has been made so as to prevent unlawful activities; that act is called Unlawful Activities Prevention Act 1967. Its main objective was to form powers available for handling activities directed against the ‘integrity and sovereignty’ of India. To put reasonable restrictions within the interest of sovereignty and integrity of India, the National Integration Council appointed a committee on National Integration and Regionalization. In accordance with the acceptance of the recommendations of the commission, the Sixteenth Constitution Act, 1963 was promulgated in such a way as to impose reasonable restrictions in the interest of the sovereignty and integrity of India, such as freedom of speech and expression, the right to assemble peacefully and without arms. and the right to form associations or unions. The National Integration Council (NIC) appointed a committee on National Integration and Regionalism that recommended further restrictions on fundamental rights in 1963. 
In order to implement the provisions of the 1963 law, the bill on the prevention of illegal activities was presented to Parliament and received the assent of the president on December 30, 1967. Indian states could now declare associations or bodies which demanded the secession of India as “illegal”.
In this way, the UAPA has given powers to the central government to impose all bans - Indian on associations. Following amendments are made in the law: - The Unlawful Activities Prevention Amendment Act, 1967 The Criminal Law Amendment Act, 1972. The Delegates Legislation Provisions Amendment Act, 1986 The Unlawful Activities Prevention Amendment Act, 2004 The Unlawful Activities Prevention Amendment Act, 2008 The Unlawful Prevention Amendment Act, 2012 The Unlawful Prevention Amendment Act, 2019 The 2004 Amendment Act In 2004, amid public outcry against the abuse of the Prevention of Terrorism Act (POTA), the government then decided to repeal it, but made major changes to the UAPA at the same time. The revocation of POTA was an election promise done by the then newly elected Congress government. The amendments in UAPA made considerable changes in the definition of ‘unlawful activity’, including the definition of ‘terrorist act’ and ‘terrorist organisation’ from the revoked POTA. It also introduced the concept of a ‘terrorist gang’. In fact, chapters IV, V and VI handling ‘punishment for terrorist activities’, ‘forfeiture of proceeds of terrorism’ and ‘terrorist organisations’ respectively, were borrowed from the revoked POTA. The UAPA has been incorporated with the schedule of the POTA of ‘terrorist organisations’. Terrorist and Disruptive Activities (TADA) and POTA was removed as it was earlier a part of anti-terror acts. Even if one had to choose the logic of "desperate times, we need desperate measures", where a restriction on fundamental rights is cheap given the extraordinary situation of terrorist threat, one cannot justify the absence a sunset clause within the UAPA. The 2008 and 2012 Amendment Acts On December 17, 2008, an amendment on UAPA was moved and was thus adopted following the attack that happened in Mumbai on November 26, 2008. Other provisions such as POTA and TADA regarding maximum length of police custody, incarceration without charge and bail restrictions have been incorporated into the UAPA. The 2012 amendments to the UAPA further broadened the already vague definition of "terrorism" to include offenses that threaten the economic security of the country. Draconian Provisions of UAPA In this act, there is a vague definition of terrorism that is mentioned. It is given that any non violent political activity (e.g. political protest) against government may also lead to UAPA provision against a person. If a person uses slangs against the government that are offensive in manner then that person shall be prosecuted under UAPA. UAPA authorises the government to ban ‘unlawful organisations’ and ‘terrorist organisations’ which is subjected to judicial review. In this an organisation may go to the Court with the appeal that they are not the part of a terrorist organisation. But the government can claim an organisation as terrorist that happened with SIMI (Student Islamic Movement of India) in the year 2002. It was a student’s body earlier but few students were found to be suspected in various unlawful activities hence the whole organisation was banned all over India. The definition of "illegal activities" includes "rejection" or "questioning" of the territorial integrity of India and "disaffection" against India. If these things are done that divides India then UAPA can be enforced and ban is put. The problem here lies is that if a person raises the voice against the State that he/she is not getting proper facility towards certain things or Indian government is unjust, in that case also UAPA can be enforced on a person most likely. This can be termed as thought-crime which means you think and you commit a crime. UAPA allows police to search, seize and arrest without warrant. Confinement without a charge sheet for up to 180 days and police custody can be up to 30 days. When it comes to anticipatory bail it is out of question as bail is an impossible thing to ask for when UAPA charges have been put. The presumption of guilt for terrorist activity is made without proving it in the Court. Hence, creation of special courts with wide discretion to hold in camera proceedings (closed door hearings) and use of secret witnesses. There is no sunset clause and no provisions for mandatory periodic review. Repeal of the UAPA On December 15, 2008, three weeks after a sea attack in Mumbai on November 26, killed 166 of the weakest and injured more than 300 others, the Indian government introduced two new anti-terrorism laws to parliament. Amendments to the Unlawful Activities (Prevention) Act 1967 (UAPA) was adopted by the Parliament. The National Investigation Agency Act (NIAA) was thus passed by India’s principal federal counterterrorism law. In 2008, law’s provisions were mentioned that mirror earlier counterterrorism legislation. Previous governments had allowed those laws to fall, or repealed them, because they had led to serious human rights violations. The Terrorist and Disruptive Activities (Prevention) Act 1985 (TADA) may have been the subject of a sunset clause in 1995, while the Prevention of Terrorism Act 2002 (POTA) was repealed in 2004. Serious human rights violations by the government have occurred during counterterrorism operations, including arbitrary arrests, torture, extrajudicial killings and enforced disappearances. Under POTA the abuses were so widespread and heavy that the then-opposition Congress Party demanded the repeal of the law within the 2004 election campaign, and swiftly moved to try to do so once in office. In response to the 2008 attacks, several of the most important offensive provisions of TADA and POTA have been restored, raising fears that India will repeat past human rights violations.While India, like all governments, incorporates a responsibility to guard their citizens from terrorist attacks, the fight against terrorism must be conducted in accordance with international human rights law. Of particular relevance is that the International Covenant on Civil and Political Rights (ICCPR), to which India could be a state party, which sets out fundamental group action and fair trial protections that are applicable in the least times, even during states of emergency. As world organization SC Resolution 1456 corroborate, “States must make sure that any measure taken to combat terrorism must suits all their obligations under law … specifically international human rights, refugee and humanitarian law.” The UAPA has been employed by all enforcement agencies throughout the country because the foremost anti-terror law though most of the States have their own anti-terror laws like the Maharashtra Control of Organised Crime Act, 1999; Chhattisgarh Special Peace Act, 2005; Jammu and Kashmir Public Safety Act, 1978; and State Peace Act, 1992. The state prosecution agencies are employed additionally to the UAPA as local law are sometimes less draconian.  The repeal of POTA was essentially eyewash. A facet of civil liberties and democratic rights organizations across the country has acted as an umbrella organization called the "Popular Movement Against the UAPA" has been launched since January 2014. -Niharika Tiwari Team Lawtsapp

INDIA’S TRANSGENDER RIGHTS ISN’T WORTH CELEBRATING

Who is a transgender? Transgender people are people who have a gender identity that is different from the one which is assigned to them by birth or who may act, feel, think or look different from the sex they were as determined at birth. In India transgender as a third gender are referred to as Hijra in Hindi. According to 2011 census, in which third gender was recognized for the first time, the total population of the third gender was recognized for the first time. Treatment in Indian society They are treated as social outcast in India, and hence the most common livelihoods for a modern day Hijra mainly includes begging and prostitution besides their ceremonial task of blessing auspicious events. Despite Indian society’s general climate of affirmation, cooperation and tolerance, there appears to be lack of public knowledge and understanding of same sex sexual inclination and people whose gender identity and expression are incongruent with their biological sex. Human rights violation against sexual minorities including the transgender communities in India have been widely documented. Most families do not accept if their male child starts behaving in the ways that are considered feminine or inappropriate to the expected gender role. Consequently, family members may threaten, scold or even assault their son/sibling while some outright disown and evict their own child for crossing the prescribed gender norms of the society and for not satisfying the roles expected from a male child. Thus, later transgender women may find it hard even to claim their share or portion of the property or inherit what would be legally theirs.  This also means many Hijras are under educated and consequently find it difficult to get jobs. Even from police, they face physical and verbal abuse, forced sex, extortion of money and materials; and arrests or false allegations. Especially, getting legal recognition has important consequences in getting government ration (food-price subsidy) shop card, passport, and bank account. In the case of National Legal Services Authority v.Union of India which was a supreme court landmark judgement which comprised a bench of Justice K.S Radhakrishnan and Justice A.K Sikri which passed the judgement that Hijras must be treated as the third gender and transgenders’s right to self identify their gender was also upheld. Legal status The Transgender Persons (Protection of Rights) Bill, 2019 was introduced in Lok Sabha last year on July 19, 2019 by the Minister for Social Justice and Empowerment, Mr. Thaawarchand Gehlot. The Bill prohibits the discrimination against a transgender person including unfair treatment in relation to various aspects like, every transgender person shall have the right to reside and be included in his household. No government or private organization can differentiate against a transgender person in employment matters. Educational institutions which are funded or are recognized by the certain government shall provide inclusive education. The government must take determined steps to provide health facilities to transgender persons. The transgender person may make an application to the district magistrate for a certificate of identity, indicating the gender as ‘transgender’. A revised certificate may be granted only if the person undergoes surgery to change their gender. The bill also recognizes various offences against transgender persons. Penalties for these offences between six months and two years and a fine. National Council for Transgender persons (NCT) has been established to advise the central government as well as monitor the impact of policies, legislation and projects with respect to transgender persons. CONCLUSION The new law is inadequate on several fronts. In the end, the lawmakers failed to consider the concerns the activists raised. As a result, India’s new law will violate the rights of trans people rather than respect and uplift long prosecuted communities. Perhaps the most serious flaw in the new law is the procedure by which trans people can change their identity. Moreover, it sets an extraordinary amount of power with one government office to arbitrate which trans people ‘qualify’ to be recognized as who they are. In simple words, if an individual’s personal identity or transition requires medical support, those services should be available and accessible. India can – and should – do better. -Yash srivastava Team Lawtsapp

Legislative Drafting- A Legal Salience

Introduction to legal practice Most cultivated countries are well cultivated within the legislative drafting era. However, there is not much theoretical writing about this. As a result, individuals outside the profession of draftsman are not alert to the miseries and miseries that result from this discipline, thrill and rejection, prejudices, and such tactics. Benefits of legislative drafting 1. Saves time for Parliament There are many heavy activities that the government does. Should worry Therefore the power of the managing branch has to be delegated to resolve the complexity and volume of the house of the legislature. The reason for this may be that it lacks or lacks the ability to legislate for regulation. Therefore, the creation of delegated legislation should be necessary to avoid getting bogged down in the burden of details. 2. Enables flexibility Toughness in administration is created by law, but manager law is more suited to changing circumstances. Thus, it will sometimes be useful within the branches of administration for changes and where technological developments are taking place on a day to day basis. 3. Dealing with emergencies Manager agencies should be better at dealing with potential contingencies with the necessary discretion. Such contingency may result from the instrumentation of laws because the legislature has been unable to anticipate or allocate for all. 4. Consultation with affected interests ended To make the law effective, it is important to have prior consultation with respect to the interests affected. This may be because the rules can be drafted and often a convention is not allowed between vested interests and thus the government. This may be affected and will end within the agreement for voluntary compliance. 5. Daily MLA Since a legislator is not aware of the difficulties of stylish legislation, it is important to note that this legislator passes the bill in basic form and leaves the details to be completed by the manager branch. 6. Impact of Science and Technology The effects of science and technology have multiplied the functions of the stylish state. Thus, the power of the legislature has increased considerably. Because it is not capable of handling powers on escalation, delegation of power in law making has been delegated to the manager. 7. Establishes new standard Growth within delegated legislation can likewise be attributed to the need to set new standards in the social interest. Thus, expert brains are needed to ensure that the minimum nationality in respect of health education, housing and sanitation is due to everyone. 8. Manager Law Specialist provides for the law The rules are being drafted by experts with appropriate conditions in the appropriate departments. With this practice, they are prepared to do a better job than the members of the legislature. Disadvantages of legislative drafting 1. Undemocratic Procedures Legislation arises because of undemocratic processes and procedures. In the context of by-laws, it is logical to consider those who are created by elected bodies. Thus, they will make byelaws only in accordance with the current law because they are empowered to support a law of the government and do so. 2. Apparent lack of debate The apparent lack of debate and publicity that should be associated with the dissemination of secondary legislation is also worth noting. The law should also be an additional subject of some oral presentation, as the law is delegated by legislation with a much clearer and more complex meaning, which is not in a position that is not easy to understand or accessible by the people. 3. Sub-delegation problem The provocation of sub-delegation can occur when the bodies responsible for the creation of the law have not agreed to directly house it. Thus, the creation of a sub-delegation would give the task to other parties. Consequently, this can create problems because the opposite parties will not be held accountable in the same manner as the lawmakers. 4. Dictionary of Delegated Legislation Another problem when it involves representative legislation, a term that is capable of being vague and technical in nature, should be difficult to understand. This was a property shared with the Acts of Parliament. 5. Dependence of persons claiming to have reviewed the law Another limitation about delegated legislation is that it renders courts unable to review such laws. Thus, it would become dependent on those who claimed and drew the attention of the courts. Since the courts have no general authority to review such legislation, this is a problem. The reason for this may be that the strategy will be time consuming and expensive. More so, this case can be reviewed only when there is money specified in individual claims. As a result, the effectiveness of the review for measuring this condition must be severely limited. 6. Effect of court Compared to primary law, the term delegated legislation is influenced by the court. Therefore, they will repeal the said law as it is done by those who are not directly elected. Thus, it may limit the control of their power. Nevertheless, it is up to the people who make the claims that they take the cases to the consideration of the courts. PURPOSE OF THIS DOCUMENT The purpose of this document is to describe the writing style and conventions used by the central office of the legislative attorney to facilitate communication and collaboration between the attorney for the office and its clients. FORMS OF LITIGATION There are 4 different styles of legislation. Two of them (bills and joint resolutions) are used to make laws, while the two opposites (simple resolutions and concurrent resolutions) are used for matters of administration of Congress and precise considerations of non-binding policies. There are no joint resolutions to propose constitutional amendments for the ratification of the states. To declare a bill or legislation, Section 7 of Article I of the Constitution requires that both houses of Congress approve it and present it to the President. If the President signs it, it will become law, if the President repeals it and Congress overcomes the veto by two-thirds of the votes, or if ten days pass if the President does not take action (while Congress is in session). Simple resolutions and concurrent resolutions are not presented to the President because they are not becoming law. Joint resolutions proposing constitutional amendments are governed by Article V of the Constitution, which does not require a presentation to the President. There is no legal difference between a law that arises as an invoice and a law that arises as a declaration. Congress chooses between bills and joint resolutions using conventions that have evolved over time for the issue. Bills are more common than joint resolutions, but a good example of a statement may be the resolution to make continuous assignments beyond the top of a perennial when the regular appropriation bill for the year is not followed. next ("Continuing Resolution") "CR") Another difference between the bill and the joint proposals is stylistic. When a bill is passed in a House of Congress, its designation changes from "Bill A" to "in action," while it has not yet become law. A "joint resolution" has the same designation even after its approval by both houses and its enactment. -Aman kumar Team Lawtsapp

Dr. Ambedkar's Philosophy and Steps Towards Social Justice

‘ 'This year we are celebrating 129th Birth Anniversary of Dr. BR. Ambedkar the following article will give insight into his life and thoughts about social justice.’ “Justice has always  evoked  ideas of equality, of proportion of compensation. Equity signifies equality. Rules and regulations, right and righteousness are concerned with equality in value. If all men are equal, then all men are of the same essence, and the common essence entitles them of the same fundamental rights and equal liberty...” In short, justice is another name of liberty, equality and fraternity. – Dr. BR. Ambedkar The above quote of Dr. Ambedkar clearly illustrated his vision of social justice which emanated from his longing for a just society which was established on the idea of a casteless society. The life of our father of Constitution is saga of his ascent from dust to glory and from the lowest hierarchical structure to the role of  architect of Indian Constitution. The Indian society has invariably been caste-ridden even after seventy years of our Constitution coming into force caste factor is dominant in every realm of life. Before Ambedkar era there were untouchable Hindus who were socially backward, economically underprivileged, politically repressed, religiously ostracised and indefinitely  forbidden from educational and cultural opportunity. Ambedkar's strenuous but tenacious battle for the casteless society had two fold motives which were giving them dignity as well as respectful life and emancipation of dalits from the degraded work they were compelled to do. Social Justice and equality has always been the vision of our Indian Constitution, which says that the state should strive to secure a social order within the legal system of the country which nourishes equality of opportunity and particularly securing justice which is not denied to anyone owing to the economic or other social disability. In the ancient Indian society this notion was only concerned with the rendition of duties and not with the rights. There were two techniques Dandaniti and Dharma pertaining to Justice. Dandaniti was close to the modern notion of justice and law while the latter was concerned with duties which was nothing but ethical conduct within Dharma. The modern approaches for Justice can be evaluated as Liberal and Marxist. The Liberals assert that Individual's rights and freedom is indispensable for an egalitarian society. Whereas the Marxists believed that unless and until imbalances of the society are removed, society cannot become just. The term Social Justice has two words 'social' and 'justice' Social means all the human beings who live in a society and spend their life in a coherent and interdependent way while Justice is related with Liberty Equality ( economic and political) and rights. Social Justice is thus concerned with assuring liberty, providing equality and maintaining individual rights for every human being of society or in other words providing them with equal opportunities for development. The main aim of Social Justice should be to eradicate all kinds of inequality based upon caste, race, sex, power, position and wealth.  Social Justice promotes just social order which governs the attitude of people towards each other so that everyone discover satisfaction living in a society where no one is distinguished or unimportant but equal and are valued according to their accomplishment, skills and talent they possess.  The principle of social Justice also talks about positive discrimination or preferential treatment to enable those sections of the society who have been deprived of social justice since ages and to bring them on equal ground with other citizens so that they could also lead a life full of dignity and better living conditions. The ancient Hindu society: the Vedic era saw the emergence of four Varna's which found it's validation in the purushukta of Rigveda. This ancient literature classified humans into Four major Varna's depending upon their occupation which were - The Brahmana, The Kshatriyas, The Vaishyas, The Shudras which were believed to have been originated from the different organs of lord Bramha, the creator of universe. The belief of superiority and inferiority came in the later Vedic period which paved the way for harassment and social exclusion of lower Varna from society. They were deprived of various social rights  and education was a far cry. The Hindu society has for long oppressed the people belonging to the lower strata but the privileges of the upper Varna's increased day by day. With the Brahmins becoming dominant they started considering others inferior this practice just evolved into casteism and untouchability which had to be stopped by someone. Justice is a simple concept but the facts and circumstances makes it complicated. It has been examined and applied by various people from time to time with different perspectives relevant to their situations; one of them was Dr. Ambedkar. Who was born in a family which belonged to Mahar caste and was considered a lower caste from whom the upper caste Hindus kept themselves away as this was the belief that even the shadow of a person belonging to a lower caste could pollute them. In such a society to bring about a vital change Ambedkar had the power of his reasoning and thought with which he started questioning the injustice done by the privileged upper-caste Hindus.  Slowly but firmly he emerged as a revolutionist against all odds like exploitation, suppression, imbalance, untouchability prevalent in the society. He worked for rights of Dalit, Women, Backward castes, minority and working class and suggested for minimum status and respect for all individuals irrespective of caste and class. Ambedkar was very much influenced with French revolutionary Rousseau and his three golden words” Equality, Liberty and Fraternity". Later he dreamt of such a society in which people had equality and liberty as well as people regarded each other like their own family members. Dr. Ambedkar is thus regarded as modern day Manu who unlike the old Manu favored human equality and social justice. Ambedkar stood for such a society and social system which was based on equal relations between every individual in all domains of life.  He never approved of mistreatment and injustice done by man to man in the name of religious belief. He favored the religion of morality and believed that caste system was the greatest evil of the mankind. According to him the centuries old Varna system was the root cause of all the exploitation. Ambedkar sought for a social system which was based upon an individual's accomplishments and aptitudes and not upon his privileged birth conditions. Therefore he included lot of provisions while drafting our Constitution which guarantees preferential treatment for the down trodden for the socially oppressed and economically exploited fraction of the society. Article 17 of our Indian Constitution abolished untouchability, it also compels our states and the government to lay down legislative and constitutional provisions to help socially, economic and politically backward people to get justice and be included in the mainstream. Unusual from his time and the popular and conventional perspectives, Dr. Ambedkar's reflections about social justice were very evolved and progressive which was apparently evident from his publications like Mook Nayaka, Janata and Samata Magazines’ where he expressed his concerns about the society and wrote about it's pathetic, inhuman behavior against socially, economically and politically impaired people. In the contemporary period if there prevails any prohibitions on several social evils against women, laboring class or low caste people the credit goes to Ambedkar. It is one of his tremendous accomplishments that he made the lower caste people realize their own significance ,feel worthy and socially included. It is because of his arduous endeavors that SCs/STs have special reservation in the areas of education and public employment. The doctrine of reservation was only formulated to improve the advancement of centuries old downtrodden section of community. Several legal provisions and government policies have been made for the all-round  development of Schedule Caste and Schedule Tribe people. We should never disregard the struggles of various people who tried to fight back this social injustice and tried to aware other people on this vital issue of social justice. Today, Dr. Ambedkar is not with us but we should strive to achieve his vision of a society without social injustice. Even after 70 years of our independence we are still not independent from poverty, inequality, delay in justice redressal and violence against them. It is a bitter truth of big metropolitan cities that one can notice sky touching buildings and on the other hand thousands of people residing at the outskirts full of filthy drains and are compelled to survive as animals do. In such a condition we can certainly interpret that India nonetheless has to go a long way. Ambedkar was moreover concerned about the full development of vulnerable sections of the society and chose to annihilate the caste system and its prejudiced pursuits through enacting the laws and the Constitution. Therefore his ideas of Social Justice remains valuable even in this contemporary scenario which is continuously functioning to uphold the rights, liberties and dignity of vulnerable people through constitutional and legal methods. -Avinash kumar Team Lawtsapp

LOCKDOWN 3.O: Quarantine taking a toll on Domestic Peace

With the Third phase of Lockdown and ease on the restrictions on alcohol; Pandemic is on its way to ruin domestic peace. In snug claustrophobic houses when police officials are busy protecting Nation from Coronavirus outbreak; our Men with toxic masculinity take out their frustration on women! We all know the whole world is confronting coronavirus and trying to get rid of it. A vaccine has not been made yet because it is a new thing but India has known something prevalent since decades and years of toiling and awaring people has been in vain. When we all have to keep ourselves quarantined there is this old social evil showing up in the new coronavirus times. Yes, I am talking about the rising cases of violence against women. The irony is that everyone is staying indoors to be safe our females are not protected even in their own home which becomes a platform of harassment. Pandemic has surely trapped the sufferers in hell. With the third phase of lockdown, the reports of domestic violence are inevitable to increase. People have a huge concern about what females wear outside homes but what if the demon is inside the home in the form of Father, Uncle, Grand Father, Brother etc. It is more pathetic than other women of the house watch them being harassed which is either they support it or are helpless. Most of the cases go unreported and the ones who report are just the tip of an iceberg. According to NCW (National Commission for Women), the average of reported cases has increased from 5-6 to 9 per day from the time lockdown started. Let's know about the legal consequences one can face due to Domestic Violence. There are altogether three laws, in particular, dealing with this menace. · The Protection of Women from Domestic Violence Act,  2005. · The Dowry Prohibition Act, 1961. · Section 498A of Indian Penal Code 1). The Protection of Women from Domestic Violence Act,  2005: it is a civil law which protects not only the married women but the females in live-in relations too! The law also seeks to protect the other females of the house like Mothers, Grandmothers etc from violence. Women can get protection from domestic violence, financial compensation and right to live peacefully under the same roof. In case a woman is living apart from her husband she has to be provided maintenance. This law ensures that the aggrieved female is not kicked out of the house and lives peacefully as well as being able to sustain themselves. The magistrate can also pass order prohibiting the perpetrator to go near the survivor. 2). The Dowry Prohibition Act 1961: A criminal law which intends to punish and penalise people who demand dowry or gives dowry. That person can be imprisoned for 6months or can be made to pay 5000rs. 3). Section 498A of Indian Penal Code: this law aims to protect and help women who are facing domestic violence at home either by her husband or other relatives of the spouse. If convicted one can be imprisoned for 3 years. It is high time that our government should take measures as even UN secretary-general Antonio Guterres has urged the Governments to look after this menace and safeguard its women living in their house cum hell. First thing First if authorities get a call from the women in distress they should try to evacuate her from the situation and take them to the shelter homes. Further, why should women be removed from her house and children? I would rather suggest taking away the husband or anyone who has done cruelty so that our women can live peacefully in this quarantine time. Fast track justice mechanism should be evolved so that justice is administered at a faster pace. To help the victims of Domestic violence amidst lockdown NCW has released a helpline number. Urging those who know and the ones who are suffering to give SOS. #staysafe#takeprecautions! -Avinash Kumar Team Lawtsapp

CHALLENGES FACED BY FIRST GENERATION ADVOCATES

What do you do?-is a serious question which most likely we do not care while answering somebody but still gives a chill and makes you think that “what are you actually doing in your life?” Questions are good to ask and most of the times you feel like you are the boss! So is the legal profession. A layman is unable to understand the legal language in our country, even a simple document is drafted in such a way that he needs someone from law background to translate it into a common man’s language. First generation advocates are same as that ‘layman’. A first generation lawyer need somebody as his guide who can tell him at least something about this ‘noble business’. Being an outsider or first generation is like “harvesting in famine because you have to believe first then you have to find certain measures to transmit your belief into results.” ‘Noble business’ because you need to have some sort of business tricks to establish yourself in this ‘noble profession’. Business training helps people to expand work opportunities. Indeed, many of us despise to admit but this is the harsh truth about litigation.
Therefore, first believe and find measures. There are some challenges faced by first Generation Young Lawyers:-
1. Zero Practical Experience-You just got out of your law college so definitely you are inexperienced in practical field of work nor your family member is in this field of competition to support you. Your family invested hard enough to send you to law school and supported you all along. Having zero experience creates a huge trouble for first generation lawyers.
2. No Financial Assistance- A freshman has nothing in his pocket and many seniors are witnessed to this. Your experience in law field is zero and your knowledge is limited so who will pay you on the first day of your work. It is quite impossible if your senior would pay you even after a month. Obviously you have to earn your paycheck with your hard work.
3. Identity Crisis and Competition in Peer Group- You might be one of the best students in your college and used to get excellent grades but no one cares about your good grades in litigation. All they want a hard worker and quick learner junior. You might feel peer pressure. Some might be doing better than you in your opinion but trust me all are stuck in their own way and feel the same as you. You may have identity crisis as some of your college friends have their parents in law field already and they get ‘success’ sooner than you or people in the courts treat them better that you. In that situation I would suggest, just chill and focus on your learning and work.
4. Networking- Yes, networking is the tool which makes your life a little bit easier in law practice. Why? Because law is a profession where you need to have “solid connection” and also be called ‘business tricks’. An advocate’s work comes from his/her networks/circle/connections. Now, you might be thinking you have never thought about that. You are right and now you suffer. However, now you have to invest in networking as well as in learning practical aspects of law practice. Grow your circle in and outside the court while you learn the court work and litigation. Not that hard I guess because before you get into independent practice you will have good professional circle.
5. Lack of Mentorship- Most of the law students lack a mentor who can guide them. Who can support and provide a direction to their career. Passing out from non- NLU makes situation quite tough for you because your college might have not provided you certain type of platform which you needed. You have to work on yourself now and be your own mentor and guide. And nothing is wrong in that. Be your own judge-the good one. At the end NLU and non-NLU does not make a difference. All you need is your efforts to do better and grab the opportunities you get and moreover, you all are going to sit in the same court. No matter where you come from.
What Can Be Done Now?
If you are a law student, start building your portfolio. Sharpen your communication skills, grow your networking circle, find other streams of income, get experience-you can go for different type of internships. Find a mentor who can share you his/her practical aspects of the legal profession. Who can teach you about financial independency. Who help you groom your communication skills and gaining different types of knowledge about courts. Being student have limited access to practical world of courts but you are not restrictive to talk to a senior or asking for their advice. You can also join some advocate’s office part time for documentation and drafting.
If you are fresh law graduate or about to enter in to litigation, being a freshman your primary and main focus should be on “learning the work” and connecting to other colleagues and expanding your work circle. You had enough theoretical knowledge and experience in your law school. Now focus on practical learning and establishing yourself in law profession. Find a senior who has at least 15 years of experience in the legal profession. I know it’s odd to ask him for stipend on very first meeting but see the practical approach. It’s better to clear out your stand to crying later that you are not being paid for your hard work and efforts. You are going to work there for 8 to 10 hours without any leave so why not ask for daily remuneration?. Some seniors do pay after a month or two as per their convenience and some do not or just say –“will see your performance and then he will decide”. And he actually start paying you and some do not pay even after their word. This is a place where first learn then earn. And treat this noble profession noble as it is. Law field is a pool of knowledge and learning. Read all type of material-poetry, literature, philosophy, politics, romance and whatever genre you get. A lawyer is a bit of everything. Remember-No one can claim he/she know it all. It’s a process of mastering facts. A master in process. Learn as much as you can. Litigation is not easy but if you have potential then only sky is the limit. “Law is one of the great healing professions. While medicine heals the body and the clergy heals the soul, the law heals societal rifts”- Steven Keeva - Advocate Asha singh advocate at High court of Punjab and Haryana https://www.linkedin.com/in/ashasadv

Quarantine- A Gesture of Protection and its effects all over

INTRODUCTION We all have heard about the current situation of the world. The sudden outbreak of Covid-19 commonly known as Corona virus has caused millions of deaths across the world. Corona virus outbreak started from Wuhan in China. It was first identified in December 2019 and since then it has been spreading all around. The World Health Organisation (WHO) declared it as a public health emergency on international concern (PHEIC) on 30th ​ ​January 2020 and a pandemic on 11th ​ ​March, 2020. Still no vaccines have been discovered so far but infected people are being treated through different methodologies. And now, the most important concern is how to stop it from spreading. There are many ways to take precautions but the most important is quarantine and that is what has been followed in all the countries including India. QUARANTINE: literal meaning and its history The word quarantine comes from 'Quarantena' which means 'forty days', used in the 14th ​ ​- 15th ​ ​century’s Venetian language. Quarantine means a restriction on the movement of people and a goods which is intended to prevent the spread of disease or pests. It is often used in connection to disease and illness, preventing the movement of those who have been exposed to a communicable disease and illness, preventing the movement of those who have been exposed to a communicable disease, but do not have confirmed medical diagnosis. Some notable quarantine in modern history includes -: 1. The village of Eyam (1665 bubonic plagues outbreak in England) 2. East Samoa (1918 flu pandemic) 3. Yugoslav smallpox(1972) 4. Corona virus pandemic (2019-20) ● Difference between isolation and quarantine-: Isolation and quarantine​  both have very different meanings. Quarantine is the compulsory separation and confinement of healthy individuals to prevent exposure to the carrier of the infection whereas Isolation represents one of the several measures that can be taken to implement infection control, most commonly used when a patient is known to have transmissible viral or bacterial issues. SITUATION IN INDIA The virus has affected Indian population too badly. According to the sources most of the cases in India originated abroad and transmitted from them on their return to the country rather than being transmitted in the country. The first 50 cases found positive for Covid-19 did not have any travel history but came in contact with someone who traveled abroad. After this corona virus patients increased rapidly in the country. To take control over this Indian government took all necessary steps to restrict the spread.  Schools and colleges were closed, public gatherings were strictly prohibited. Soon the government took a major step and announced its first 14 hour voluntary public curfew on 22nd ​ ​March, 2020. Instantly after that the government announced a lock down till 13th ​ ​April, 2020 which is now extended till 3rd ​ ​May, 2020 and there are still chances that it can be extended further. People are supposed to stay home, work from home, in very rare cases they are allowed to go out. QUARANTINE AND ITS EFFECTS. Though everything done by the government is essential but like every coin has two sides, this situation also has another face to it. People are bound to stay at homes. They have nowhere to go but stay trapped in their own houses. Now there are people who stay away from their homes. There are students, bachelors and many others who stay away in different cities on rented flats or hostels. Due to sudden lock down it also led to stopping the transportation services and a large number of people are stuck away from their homes. But there are people who are giving themselves a break, by staying at home, and spending time with their families. We would further discuss the effects of quarantine by categorizing it into two parts i.e. Positive and Negative​ .​ ● POSITIVE: The quarantine has made people stay home. They are spending​  time with their families. Many are working on improving their skills, learning new things. The internet is full of how people are spending their quarantine days. Celebrities are coming up with different ways to influence people on how they should keep themselves engaged. Institutes are organizing webinars and many other online courses to keep everyone active and still gain knowledge. Since the lock down has started the government did two most surprising things which were clapping by standing in the balcony and the second was the lighting of diyas. Like everything has exceptions it also had few but these activities showed how the people of India are united together. The most important thing which quarantine is helping in is stopping the spread of the virus through human contact. ● NEGATIVE: Since the lock down started many people tried returning back to​  their homes but they were not able to. Many students are stuck in their hostels; people are losing their jobs mostly who work in private companies. Daily wages workers are not able to earn and are stuck with no money to buy daily essentials. According to the reports domestic violence has increased. Many people are stuck in faraway places without their families, it is leading to depression and feeling of loneliness. It is not only affecting them mentally but physically as well as they are growing weak due to lack of attention to themselves. The most affected group of people are the poor ones. They have lost their jobs, those who work as domestic helps are forced to go on leave without pay due to Corona virus. Beggars are dying of hunger. It is affecting street animals as well. HOW QUARANTINE AFFECTS MENTAL HEALTH? In the above section, we read about how quarantine is affecting overall with its both positive and negative aspects. So now we will look into its most important aspect: how it is affecting mental health. Already people are suffering from uncertainty and stress of global outbreak and in addition to that spending time in quarantine can take a serious mental turn. Quarantine can impact three key elements of mental health : 1. Autonomy 2. Competency 3. Connectedness The isolation imposed by quarantine frequently leaves people feeling helpless. Even in the era of the Internet they can feel cut off from everyone and it hampers their performance in usual duties. With schools, offices and colleges closed, workers opting to telecommute, social events cancelled, the prospect of being confined in home can be daunting. At first, everyone enjoyed  staying at home but as time passes by and you have been at home for a longer time, it seems like it's been forever. Even while being at home with family the sense of isolation and cabin fever can be very disturbing.  The American Psychological Association reports that social isolation carries a number of health risks. Feeling alone can lead to poor sleep, bad cardiovascular health, lower immunity, depressive symptoms and impaired executive function. Impaired executive functional skill can lead to difficulty in focusing, managing emotion, remembering information and following directions. EFFECTS OF QUARANTINE IN THE PAST. Even though every situation is unique, looking at past events can give us a rough idea about the psychological impacts of quarantine. Due to Severe Acute Respiratory Syndrome (SARS), more than 15000 people in Toronto voluntarily went into quarantine between 2002 and 2004. SARS, like Covid-19 is a contagious respiratory illness caused by a type of coronavirus.  Later, research indicated that quarantine individuals experienced a range of both immediate and short term psychological consequences. Just after that people reported longer lasting psychological distress for around a month afterwards. Anout 29% of them displayed the symptoms of PTSD and 31.2% had depressive symptoms. One study found that 29% felt avoided after they have been in quarantine. POSSIBLE MENTAL HEALTH EFFECTS OF QUARANTINE 2019-20 A 2019 review in The Lancet analysed the result of past quarantine to get a brief idea of how Covid-19 may impact those who are quarantined. Psychological distress can be common both during and after periods of quarantine. Symptoms which people can experience are: ● Insomnia ● Confusion ● Post traumatic stress symptom ● Depressive symptoms ● Stress ● Emotional exhaustion Substance and alcohol dependency can be common upto 3 years. However, there are ways by which we can protect our mental health and wellbeing while coping with quarantine. STEPS TO TAKE FOR COPING According to the researchers there are three steps that can help mitigate some negative mental health effects of quarantine. ● Establish routine: Due to quarantine everyone has had to face changes in​  their normal routine. This leaves them with the feeling of being directionless. It becomes the most difficult part as we try to figure out how to fill all the hours of the day. Working from home can be helpful in structuring your time but it can be challenging with other family members. Therefore, to make it easy plan out activities along with your family, try creating a daily schedule, make your own routine and break up the day in order to stave off monotony. ● Be as active as possible: Short period of physical inactivity can impact a​  person both mentally and physically. Try different "at-home workout ideas" that can help you to be fit even when stuck in the house. ● Communicate: Staying connected with people would stave boredom as well​  help in minimising the sense of isolation. Stay in touch with friends and families. Reach out to the people on social media. Talking to others who are stuck in the same situation can be helpful for both. CONCLUSION There are some more steps which can help you cope up with your mental health. The most important is to stay fit and think positive. Getting influenced by fake news and rumours can bring panic so try and avoid those. But yes always stay informed. Quarantine is a periods which is necessary to cope with such epidemics and only we can help ourselves and are responsible for our mental as well as physical health.

A happy day- "section 377" pulled down. A journey of equality.

Section 377 of the Indian Penal Code represents a section of the Indian Penal Code introduced in 1861 during the British rule of India. Accurately modeled on the Buggery Act of 1533, it makes sexual activities "against the social order of nature" illegal. In the landmark decision the Supreme Court has finally struck down a 19th-century law criminalizing homosexuality in India. The five-judge bench in a unanimous decision reasoned that discrimination based on sexual orientation violates the right to equality, that criminalizing private consensual sex between competent adults was violative of the right to privacy, dignity, and freedom of expression under article 21 and the fundamental rights cannot be denied on the ground that they merely affect a small section of the society. They found that section 377 discriminates against individuals based on their provocative orientation and gender identity, violating article 14 and 15 of the constitution. Justice Malhotra concluded by stating that history owes an apology to the LGBTQ community for the delay in upholding their right. ‘‘Section 377, to the extent it criminalizes provocative act between consenting adults, whether the homosexual or heterosexual is unconstitutional’’ said by chief justice Misra and Justice Khanwilkar in their judgment. The timeline of the battle against section 377 in India, which was started over 20 years back in as follows: NOVEMBER-DECEMBER 1991:- AIDS Bhedbhav Virodhi Andolan (ABVA), an organization fighting discrimination against those affected by HIV or AIDS released a document describing the experiences of homosexual people in India. The 70-page document revealed the extent of blackmail, extortion, and violence the homosexual people faced especially at the hands of the police. The report called for a repeal of the legislation and law including section 377 that discriminates against the members of the LGBTQ community. But when the report was released at the press club of India, journalists were reportedly so embarrassed; they didn’t highlight a sole question. MAY 1994:- Inspector general of the Tihar jail in Delhi, Kiran Bedi, refuses to provide condoms for intimates saying it would encourage homosexuality, besides admitting that inmates indulge in it, which gave rise to a controversy. In response, a writ petition was filed in the Delhi High Court by ABVA, demanding that free condoms be provided and that section 377 be recognized as unconstitutional. Despite retaining long-running efforts to mobilize support, the petition is ultimately dismissed in 2001. DECEMBER 2001:- Public interest litigation (PIL); was filed in the Delhi High Court by The Naz Foundation, a sexual health NGO working with homosexual men, challenging the constitutionality of section 377; calling for the legalization of homosexuality. SEPTEMBER 2004:- The case was dismissed by The Delhi High Court, stating that there are no causes of action, and the court cannot examine the purely academic issues. A few months later petition filed by Naz Foundation was also dismissed. FEBRUARY 2006:- A special level petition for the case was filed by The Naz Foundation; it was reinstated in the Delhi High Court by the Supreme Court, citing the fact that it is an issue of civic interest. An affidavit against the decriminalization of homosexuality was filed by India’s ministry of the home affair, while in the coming months voices against 377, a coalition of NGOs, join the petition. JULY 2009:- Saying that section 377 violates the fundamental rights to life, liberty, and equality as enshrined in the Indian constitution, the bench at Delhi High Court consisting of Chief Justice Ajit Prakash Sudh and Justice S Muralidhar, in their landmark judgment, decides to strike down section 377. DECEMBER 2013:- The LGBTQ community suffers a significant blow when the supreme court overturns the judgment the Delhi high court’s judgment, saying section 377 “does not suffers from the vice of unconstitutionality and declaration made by the division bench of the high court is legally unsustainable.” JUNE 2016:- A writ petition was filed in the Supreme Court challenging section 377 by Navtej Singh Johar, an award-winning Bharatanatyam dancer along with four other high-profile Indians, including Chef Retu Dalmia and hotelier Aman Nath. AUGUST 2017:- The Petition that was heard against India’s biometric program aadhaar unanimously rules that privacy remains a fundamental right, by a nine-judge Supreme Court bench. In its judgment the court states that “Sexual orientation represents the essential attribute of privacy. Discrimination against an individual based on provocative orientation is deeply offensive to the dignity and self-worth of the individual,” raising the hope of those campaigning against section 377. APRIL 2018:- Another top hotelier Keshav Sur spearheads the fight, who identifies as gay, and files a petition in the Supreme Court. JULY 2018:- A five-judge bench of the Supreme Court, including chief justice Dipak Misra, begins the petitions presented by Johar and others against section 377. While proponents of the law claim the spread of sexually transmitted diseases and argue for the disintegration of India’s social fabric to sustain it, many justices offer encouraging comments. “It is not a historical aberration but a considerable variation,” wisely said by Justice Indu Malhotra. SEPTEMBER 2018:- In the absolute judgment, the Supreme Court decides to scrap the section 377. Which chief justice Misra describes as “irrational, indefensible and manifestly arbitrary,” marking a successful end to a long struggle for justice. This judgment was rendered by the five-judge bench of the Supreme Court. Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice DY Chandrachud and Justice Indu Malhotra authored four concurring judgments.

Law relating to the offense of Perjury and giving false evidence before the Court of Law

Ravinder Singh Dhull Additional Advocate General of Haryana What is perjury? As per the Cambridge Dictionary[1] Perjury is the crime of telling lies in court when you have promised to tell the truth. The Merriam Webster dictionary[2] defines perjury as voluntary violation of an oath or vow either by swearing to what is untrue or by omission to do what has been promised under oath. In criminal law. The willful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding[3]. The Indian Penal Code, 1860 defines Perjury in Chapter IX “OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE” under Section 191. The punishment for the offense of Perjury is defined under section 193 of Indian Penal Code, 1860 as SEVEN YEARS of imprisonment. The procedure in dealing with cases mentioned u/s 191 of Indian Penal Code, 1860 are dealt in Chapter XXVI of The Code of Criminal Procedure, 1973 under section 340. In India Offence of Perjury or giving false evidence before the Court of law deliberately is a distinct offense that comes into play every day before various Courts/Tribunals etc. However, the process of making such complaints and ingredients of such an offense is not clear to most of us. Section 191 of IPC describes false evidence. Section 191 of IPC is as below: Giving false evidence.—Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or be­lieves to be false or does not believe to be true, is said to give false evidence. Explanation 1.—A statement is within the meaning of this sec­tion, whether it is made verbally or otherwise. Explanation 2.—A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know. History of the offense [4]: Before witnesses had any formal role in trials, there was no need for a perjury law. In the Middle Ages, when the English common law was developing, trial by battle was used to test a sworn accusation. Similarly, for the sworn denial of a serious charge based on mere suspicion, an ordeal administered by a priest was the predominant mode of trial until it was abolished in 1215 as superstitious. Finally, at least until the Assize of Clarendon (1166), less serious accusations could be successfully answered by “compurgation”, that is, by obtaining a sufficient number of “oath helpers” to support the defendant’s credibility. Trials in the modern sense began to develop only in the thirteenth century. Little is reliably known about the conduct of jury trials prior to the sixteenth century, but in civil cases, it seems that genuine witnesses were permitted to give their accounts, although they could not be compelled to appear. In early criminal cases, the jury seems always to have included some who, aware of the commission of a crime in their community, brought the suspect before a Judge. Those witnesses who did attend these early trials were perceived as part of the jury and retired with them to deliberate, often to make their disclosures in secret. It was the verdict, not the testimony, that was perceived as either true or false; the only remedy for falsehood remotely akin to a perjury prosecution was a seldom-invoked procedure called “the writ of attaint”, created in 1202 and not abolished formally until 1825. Though attaint, the jury would be punished for a `false’ verdict and the verdict itself overturned. Witness first testified under oath in criminal cases on behalf of the Crown in the sixteenth century. No witnesses for the defense were permitted until the mid-seventeenth century, since they would have been witnesses against the Crown, and not until 1702 were defense witnesses permitted to be sworn (1 Anne, St. 2, c.9, s.3 (1701) (England) (repealed)). By the late seventeenth century the jury had lost all its testimonial functions, and witnesses thus became the sole means of bringing facts to the Judge’s and jury’s attention. Since the early common law had no established mechanism for dealing with false swearing by witnesses, the court of Start Chamber assumed for itself the power to punish perjury. This authority was confirmed by statute in 1487 (Star Chamber Act, 3 Hen. 5, c.1 (1487) (England) Repealed)). The first detailed statute against false swearing was enacted in 1562 (5 Eliz. 1, c.9 (1562) (England) (Repealed)). When the Star Chamber was abolished in 1640, its judicially defined offense of perjury passed into English common law, reaching any cases of false testimony not covered by the terms of the statute. Edward Coke, whose views strongly influenced early American law, wrote in his Third Institute, published in 1641, that perjury was committed when, after a `lawful oath’ was administered in a `judicial proceeding’, a person swore `absolutely and falsely’ concerned a point `material’ to the issue in question (*164). In this form, the law remained unchanged into the twentieth century.” Understanding the offense of perjury: To understand the offense two sections of distinct code i.e. Section 340 CrPC and Section 195 of IPC are required to be studied. On one hand, Offence is prescribed under Section 195, on the other hand, the process to make such a complaint is prescribed under Section 340 Cr.P.C. The object of Section 340 Cr.P.C. is to ascertain whether any offense affecting the administration of justice has been committed in relation to any document produced or evidence given in court during the time when the document or evidence was in custodia legis[5] and whether it is also expedient in the interest of justice to take such action as required under Section 340 Cr.P.C. Section 340 of the Criminal Procedure Code reads as under: “340. Procedure in cases mentioned in Section 195. – (1) When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offense referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, – (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offense is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by subsection (1) in respect of an offense may, in any case where that Court has neither made a complaint under subsection (1) in respect of that offense nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195. (3) A complaint made under this section shall be signed, – (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court [or by such officer of the Court as the Court may authorize in writing in this behalf.] (4) In this section, “Court” has the same meaning as in Section 195.” Further, Section 195 of the Code of Criminal Procedure reads as under:- 195: (1) No Court shall take cognizance – (a)  xx    xx    xx (b) (i) of any offense punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offense is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offense described in section 463, or punishable under section 471, section 475 or section 476 of the said Code, when such offense is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offense specified in sub-clause (i) or sub-clause (ii), [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate.] Who has the power to take cognizance under Section 340? It has been held that all Courts, Tribunals, Commissions have the power to take cognizance of the Section, however, Commissions appointed under the Commission of Inquiry Act have no right to take cognizance under the section. In case, they prima facie believes that offense is committed, the complaint shall be made in proper format as provided in the Code. Where offense under Section 195 IPC shall be tried? An offense under Section 195 IPC is triable by a Court of Judicial Magistrate First class and the process of such trial is provided under Section 343 Cr.P.C. Who has the power to file complaint under Section 340 Cr.P.C? Prior to the 2006 amendment, only presiding officers had the power to make a complaint under the Section. However, that bar has been removed now and now any officer authorized by the Court has the power to sign a complaint under the Section. Which Court can take cognizance? Any Court before which evidence is produced or higher court. If the higher court is of view that in any proceedings in any court subordinate to it, an offense under the Section has been committed, it may also file a complaint under the Section. How Offence is committed and what are its ingredients? From the reading of the Section 340 Cr.P.C., two basic ingredients of Section 340 Cr.P.C. are made out. Firstly, an offense under Section 195(1)(b) appears to have been committed and Secondly, it is expedient in the interest of justice to hold an inquiry regarding the same. The court has to be satisfied as to the prima- facie case for a complaint for the purpose of inquiry into an offense under Section 195(1)(b) Cr.P.C. Hon’ble Supreme Court of India in Amarsang Nathaji as himself and as Karta and manager v. Hardik Harshadbhai Patel and Others (2017) 1 SCC 113 held as under:- “6. The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred to as “IPC” ); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still, the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offenses of false evidence and offenses against public justice and more specifically referred to in Section 340(1) CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. (See K.T.M.S. Mohd. and Another v. Union of India (1992) 3 SCC 178). The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case.” Thus apparent, anything and everything doesn’t make the offense and some positive act has to be made on behalf of the accused on which the Court shall act as a complainant and refer the matter to the concerned Magistrate for inquiry. There are a few basic things that are required to be understood in order to understand the Sections and offenses. The same are discussed below: Firstly, the perjury should appear to be deliberate and conscious and the conviction is reasonably probable, the Section has no application otherwise The prosecution for perjury should be sanctioned by courts only in those cases where there is prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge. Before exercising its discretion to lay a complaint under Section 340 of the Code, the Court should find first that it is in the interest of public justice that a complaint should be made and secondly that there is a reasonable probability of a conviction resulting in the complaint. The prosecution for perjury should be sanctioned by courts only in those cases where perjury is deliberate and conscious, and conviction is reasonably probable. Where the element of mens rea is absent in the offenses imputed against the person concerned, it is not expedient in the interest of justice to initiate prosecution on a petition under Section 340 of the Code. It has been held by Hon’ble Supreme Court in Chajoo Ram versus Radhey Shyam and another, AIR 1971 SC 1367 that, “The prosecution for perjury should be sanctioned Courts only those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is a reasonable foundation for the charge. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint.” In the decision reported in Santokh Singh v. Izhar Hussain, AIR 1973 Supreme Court 2190: (1973 Cri LJ 1176), the Apex Court expressed the following views: “Every incorrect or false statement does not make it incumbent on the Court to order a prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency.” It is thus the discretion of the court to ascertain the facts of the case and accordingly make a complaint for initiation of proceedings under S. 340. However, it is to be noted that the discretion is to be exercised carefully and it is required that there must be direct evidence of perjury being conducted. A Division Bench of Hon’ble Orissa High Court in Lakshmi Narain Deepak Ranjan Das versus K.K. Jha and others, 1999 Cri. L. J. 4200 while explaining the powers of the court to order inquiry under Section 340 held: “The power given by the Section should be used with care and after one consideration. It is by no means in every instance in which a party fails to prove his case that the Judge who has decided against such party is justified in exercising the powers given to him by this Section. So long as it is a case to which there is any possible doubt, or in which it is not perfectly certain that the Judge’s decision must be upheld in the event of there being an appeal, the Judge acts indiscreetly and wrongly if the moment he has given his judgment in the case he exercises the power given to him by this Section. At the same time, if in the course of the trial the judge has before him clear and unmistakable proof of a criminal offense, and if after the trial is over, he, on consideration thinks it necessary to proceed at once, of course, it may be right to do so. It should be borne in mind that criminal prosecutions are frequently suggested by successful litigants merely to prevent an appeal in the case; and they should be careful not to lend themselves to such suggestions too readily. They should also recollect that when they proceed under this Section, the responsibility of the prosecution rests upon the Judge entirely: such a prosecution being a very different thing from a prosecution instituted on the complaint of a private party. Secondly, before an order is made under Section 340 of the Code there must be grounds of a nature higher than mere surmise or suspicion for directing a judicial inquiry . Before the proceedings under Section 340 to be instituted there must be direct evidence fixing the offense upon the persons whom it is sought to charge either in the preliminary inquiry or in the earlier proceedings out of which the inquiry arises. It is not sufficient that the evidence in the earlier case may induce some sort of suspicion that these persons had been guilty of an offense but there must be distinct evidence of the commission of an offense by such persons. A complaint under this section should not be made against a person where the indications of his guilt do not amount to anything more than mere suspicion. A Court taking action under this Section must not only have ground for inquiry into an offense referred to in the Section but must also be prima facie satisfied that the offense has been committed by some definite person or persons against whom proceedings ought to be taken. The use of the words ‘appears to have been committed’ in Section 340 of the Code is significant and merely shows that there should be prima facie material before Court to indicate that the offenses complained of are likely to have been committed. The danger of parties vindictively proceeding against their opponents by initiating proceedings under Section 340 of the Code has to be kept in mind and must make the Court pause and consider the expediency of prosecution in a particular case with reference to its facts and not launch prosecution at the instance of parties in every case where perjury is discovered. Thirdly, in cases where no materials are available before the Court which decided the original case to enable it to form an opinion that a particular witness had given false evidence and such materials are only, later on, brought to the notice of the Court, proceedings under Section 476 of the Code are maintainable. The Court should be expressly clear about its initial prima facie finding that material to prove perjury is before it. Otherwise, the section will have no application. Where, the section has no application, remedy before a complainant lies in Section 476 IPC or Section 467 IPC as the case may be. As pointed out by the Supreme Court in K. Karunakaran v. T.V. Bachara Warrier, AIR 1978 Supreme Court 290 : (1978 Cri LJ 339) in a proceeding under Section 340(1) of the Code the reasons recorded in the principal case, in which a false statement has been made, have a great bearing and indeed action is taken having regard to the overall opinion formed by the Court in the earlier proceedings. The only question at an inquiry under Section 340(1) of the Code is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offense and whether it is also expedient in the interest of justice to take such action. The party may choose to place all its materials before the Court at this stage, but if it does not, it will not be estopped from doing so later if the trial of prosecution is sanctioned by the Court. An inquiry under Section 340(1) of the Code is in the nature of affording a locus poenitentiae[6] to a person and if at that stage the Court chooses to take action, it does not mean that he will not have the full opportunity in due course of the process of justice to establish his innocence.” Thus, it is clear that a power under Section 340 has to be exercised while in consonance with Section 195 of Cr. P.C. It is to be seen that a reading of Sections as mentioned in Section 195(2)(a) shows that the offenses prescribed are positive. Thus, a deliberate intention has to be there to wilfully mislead the court regarding any fact. Section has no application for anything done outside a Court of Law View of the full bench of Hon’ble Punjab and Haryana High Court in Harbans Lal versus State of Punjab cited as 1986(2) R.C.R. (Criminal) 481 is to be taken note that the power of the Court is limited to the offenses mentioned in the section if committed in regard to the document produced or given in evidence while in the custody of the court. If any forgery is committed outside the Court; the section has no application. Supreme Court while referring to its earlier decisions in Gopalakrishna Menon v. D. Raja Reddy[7] and Patel Laljibhai Somabhai v. State of Gujarat[8] held that offense of perjury would be attracted only if the offense of forgery is committed when the document was in custodia legis[9] and mere production of document would not attract offense of perjury. Whether, an opportunity of hearing is required to be given to the accused before ordering prosecution? There are conflicting views relating to this and the matter has now been referred to a larger bench. On the one hand, the Supreme Court in Pritish v. State of Maharashtra, (2002) 1 SCC 253: 2002 SCC (Cri) 140 held that preliminary inquiry is not always necessary before ordering prosecution. However, subsequently, without appreciating the decision in Pritish’s case, it was held in Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290 that preliminary inquiry is necessary before ordering prosecution. Further, Supreme Court in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370, it was held that preliminary inquiry is not necessary, and it is the discretion of the Court. However, now in its decision dated 26.02.2020 the question of whether the preliminary inquiry is necessary before making a complaint or not has been referred to a larger bench in the State of Punjab v. Jasbir Singh, 2020 (4) SCALE 302. Provisions relating to Appeals/Revisions: The provision relating to filing appeal against the order under Section 340 of Cr.P.C. lies in Section 341 of Cr.P.C. which gives immediate higher court to accept the appeal. However, it is specifically provided that no appeal shall lie against any order passed under Section 341 of Cr.P.C. Sector 341 of Cr.P.C. is as under: 341.Appeal. (1) Any person on whose application any Court other than a High Court has refused to make a complaint under subsection (1) or subsection (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of subsection (4) of section 195, and the superior court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such former Court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly. (2) An order under this section, and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision. Whether the High Court has the power to entertain revision? Since, there is a specific bar in subsequent proceedings, no revision lies against the order passed under this Section. However, there is a law that the High Court can entertain a petition under Section 482 of Cr.P.C.[10] [1] https://dictionary.cambridge.org/dictionary/english/perjury [2] https://www.merriam-webster.com/dictionary/perjury [3] Black’s Law Dictionary 2nd Ed. And The Law Dictionary [4] Stanford H. Kadish in “Encyclopedia of Crime and Justice” (Vol. 3) [5] Latin phrase meaning “in the custody of law” [6] Locus penitential is a Latin phrase associated with contractual law which means the opportunity to withdraw from a contract or obligation before it is completed or to decide not to commit an intended crime, Ref: Merriam Webster Dictionary. [7] (1983) 4 SCC 240 [8] (1971) 2 SCC 376 [9] It is a Latin phrase meaning “In custody of law” [10] Lalit Mohan Mondal v. Benoyendra Nath Chatterjee, (1982) 3 SCC 219

Revisiting center-state Relations under Indian Constitution: An unsung saga of Kashmir

Revisiting center-state Relations under Indian Constitution: An unsung saga of Kashmir Two main objectives of the Mountbatten Plan of 1947 : 1. To divide the British India into two parts; India and Pakistan 2. Where would princely sates go in India or Pakistan - Discussions took place and thus British India and Muslim league decided that those areas which were Muslim dominated would go to Pakistan. Mountbatten plan was enacted and princely states had two options either to join India or Pakistan or to declare themselves as independent states. Sardar Vallabhbhai Patel, V.P. Menon and Jawaharlal Nehru with the help of Lord Mountbatten took the responsibility to integrate the princely states in India. Negotiations went on with the princely states. ‘Carrot and stick’ approach of negotiation was implemented. According to this theory, the Indian government gave incentives to the ‘Maharajas’ of the princely states. Here, incentives were given in the form of ‘Privy Purse’, which means after joining India and being an integrated part of it they will be given funds for maintenance and expenditure. This was the carrot approach. The stick approach says that the princely states which from the Radcliff line were at the side of India were asked that if they didn’t integrate in India then strict military actions would be taken against it. Hence after applying this strategy out of 565 princely states 552 were on the side of India and 13 at the side of Pakistan. Indian government made each princely state sign an ‘Instrument of Accession’. In which 549 states readily agreed to sign but 3 of them denied. Instrument of Accession is a treaty between the Indian government and Maharajas' of princely states, in which there are conditions given on which ground princely state has integrated in India. For example, the Indian government offered Privy Purse in return princely state join India and says that they will adopt the Indian constitution and will be faithful towards the country. Junagarh, Hyderabad and Jammu and Kashmir these 3 princely states denied being the part of either India or Pakistan. They wanted themselves to be an independent state altogether. Nizam of Hyderabad felt the same. He wanted Hyderabad to emerge as an independent state. During the time of independence the whole nation was facing religious tension, lawlessness or loot maar was going on and that similar thing was happening in Hyderabad. It failed to stop this lawlessness and thus to help Hyderabad Indian government mainly Sardar Vallabhbhai Patel launch operation polo. In operation polo the neighboring state was sending their police force to assist them. On 19th September1948, the Indian government signed the Instrument of Association with Nizam of Hyderabad. Hence Hyderabad was integrated in India. Junagarh faced different situations, here the Nizam of Junagarh was Muslim and the population was Hindu in the majority. Nizam wanted to be the part of Pakistan and the population wanted to remain in India. Hence referendum took place. Referendum is a voting system in which people decide they want to become part of India or Pakistan. After the referendum it was decided that Junagarh will be part of India. When after independence constitution was made the citizen of India got many rights which protected them. Before Jammu and Kashmir is that princely state which had their own legislation and on the basis of that legislation, the citizen of Jammu and Kashmir was getting lots of rights and protection already. From those rights and protection, there was one right i.e. right to property. When Jammu and Kashmir were to be integrated in India or had to adopt the Indian constitution and one question has been raised that right to property which was available to them from before will be their right only or right to property will be open to other citizens of India. The majority of the population of Kashmir is that of Muslim but the raja was Hindu. Henceforth, when Mountbatten plan was being made many people thought that Kashmir will become part of Pakistan. Maharaja Hari Singh signed a standstill agreement with India and Pakistan. It means that maharaja neither wanted to be a part of India nor Pakistan. Maharaja wanted Jammu and Kashmir to be an independent state. On October 1947, Pakistan slowly started sending his army towards the Kashmir and started occupying the territory of Kashmir and tried to remove the Maharaja from its post. Maharaja Hari Singh got scared and ask assistance from the Indian government. But the Indian government asked on what basis or on what position or relation we should give you the assistance since you are not the part of India. On 26th October 1947, Maharaja Hari Singh and Indian government signed an instrument of accession. Hence Jammu and Kashmir became the part of India. After signing of IOA Indian government send his army to Jammu and Kashmir and removed the Pakistan forces. The result of the war is that in 1st January 1949, both the country had an agreement of ceasefire signed. The result of the ceasefire agreement is LOC (line of control). It was decided by both the countries army that the amount of land they have occupied is there’s. Hence, Jammu and Kashmir 2/3rd part was with India and 1/3rd part was with Pakistan. After signing the Instrument of Accession Jammu and Kashmir’s new leader was Sheikh Abdullah. Instrument of accession is a treaty in which lots of conditions were there and on basis integration is happening. When Kashmir agreement happened Instrument of Accession was signed. When the Indian army removed Pakistan's force from Kashmir then Sardar Vallabhai Patel was of the view that India should rage war against Pakistan. But Pt. Jawaharlal Nehru opposed it as he didn’t want more violence to take place. Pt. Jawaharlal Nehru told Mohd. Ali Jinnah that India has signed an instrument of accession with Maharaja Hari Singh thus Jammu and Kashmir are now an integral part of India. Mohd. Ali Jinnah didn’t believe in the instrument of accession and said to be forceful. Pt. Jawaharlal Nehru took the matter to the UN. Thus, the UN denied the instrument of accession and declared Kashmir a disputed area. UN decided to resolve the dispute by plebiscite. Plebiscite is a voting system in which people of Jammu and Kashmir will decide whether they want to be the part of India or Pakistan. But there were two conditions put forward by UN - 1. Pakistan will remove its army force from the occupied region of Kashmir. 2. India will lessen its army force in Kashmir. After these conditions were fulfilled then the only plebiscite is going to take place and dispute will be resolved. But this never happened. Neither the countries removed their forces nor did the plebiscite take place. During that time there was a new emerging leader in Jammu and Kashmir Sheik Abdullah, he represented many political issues there. The name of his party was All India Jammu and Kashmir National Conference in which he represented the majority population of Jammu and Kashmir. The name of the party was later changed to the National Conference in which he used to represent the suppressed classes of Jammu and Kashmir. When all this chaos was going on whether or not the UN's plebiscite should take place and on the other hand Sheikh Abdullah was emerging as a hero of Jammu and Kashmir. Meanwhile, in India Pt. Jawaharlal Nehru thought of implementing such thing that Jammu and Kashmir should feel that they are still the part of India hence, emerged article 370. A meeting was conducted between Sheikh Abdullah and Indian government which is called as Delhi agreement. In this meeting conditions of the instrument of accession were discussed and thus to incorporate instrument of accession article 370 was brought. In part XXI of the constitution lays article 370. This part provides temporary, transitional, and special provision to12 states out of which one is Jammu and Kashmir. Article 370 can be divided into three parts : 1. Powers of the parliament - Generally, parliament has powers to make laws regarding topics listed on the central list and concurrent list for every state but article 370 says that power of parliament regarding the state of Jammu and Kashmir is restricted and parliament can make laws only on those matters of concurrent and state lists which were decided while signing the instrument of accession. Defense, communication, and external affairs cover a total of 31 areas of Central and concurrent lists and parliament can make laws on these 31 matters for Jammu and Kashmir. If any other law has to be made in Jammu and Kashmir then the government should take permission from the state government of Jammu and Kashmir. Procedure of Jammu and Kashmir is firstly parliament will pass laws then that goes to state assembly which will ratify the laws made by parliament. If state assembly ratifies then such laws will be applicable to Jammu and Kashmir. This extra process of ratification or the restrictions to the power of parliament applies through article 370. 2. Laws applicable - Article 1 and Article 370 of the constitution will be applicable in Jammu and Kashmir apart from these, all those provisions will also be applicable that are specified by President in its presidential order of 1954. This order is modified from time to time. Other constitutional provisions will not be applicable. 3. Can Article 370 cease to exist Article 370 clause 3 says that if the constituent assembly of Jammu and Kashmir says that article 370 shall be removed or abrogated after this if President too through a public notification says that yes article 370 shall be removed then article 370 will cease to exist. Existence of Article 35A Treaty of Amritsar happened in 1846 in which the British Government gave Kashmir to Maharaja Gulab Singh because of which Jammu and Kashmir existed as a princely state. People living in princely states are known as state subjects and people living in other parts of British India are known as British colonial subjects. To recognize the state subjects of Jammu and Kashmir legal provisions were made between the year 1912 - 1932 such as the Hereditary State Subject order of 1927 which says that all the state subjects are entitled to Right to a government office, right to use the land, right to ownership of land, etc. which are not available to non-state subjects. Jammu and Kashmir has its own flag and constitution which was adopted on 17th November 1956. After adopting article 370 in the constitution, Indian Citizenship extended to the state subjects of Jammu and Kashmir but the leaders and the constituent assembly of Jammu and Kashmir wanted that the laws and state subjects of Jammu and Kashmir shall be treated differently. This is the reason that Delhi Agreement held between the Indian government and Sheikh Abdullah from which article 370 from that very agreement Dr. Rajendra Prasad passed a presidential order on 14th May 1954. From this very order Article 35A came into existence. Article 35A defines the right of the State Subject (permanent residents) of Jammu and Kashmir. This article permits the local legislature in Indian-administered Kashmir to define permanent residents of the region and it states that existing laws of Jammu and Kashmir and any law state legislature will make in future shall not be declared void on the grounds that it is inconsistent with the constitution or they are against the rights of other citizens of India. Particularly stating Article 35A states that these provisions will not be affected by the constitution. It is forbidden for the outsiders from permanently settling, buying land, holding local government jobs, or winning education scholarships in the region. The article is also termed as the Permanent Residents Law. It bars female residents of Jammu and Kashmir from property rights in the event that they marry a person from outside the state. The provision also extends to such women's children. The difference between other states and Jammu and Kashmir through article 370 and article 35A are many. Firstly, Jammu and Kashmir have dual citizenship whereas in other states single citizenship is applicable. Secondly, India has a flag and a constitution whereas Jammu and Kashmir has its own flag and citizenship. Thirdly, if parliament wants it can proclaim financial emergency in the states of India but this is not the case with Jammu and Kashmir as a financial emergency cannot be proclaimed there. Fourthly, the difference is tenure of stathe te legislature. In other states, tenure of state legislation is 5 years but in Jammu and Kashmir it is 6 years. Fifthly, difference in right to vote. Universal adult franchise is applicable in whole India and the person resident of that state is eligible to vote for the state assembly elections of that state but the right to vote is not fully applicable in Jammu and Kashmir. Only the permanent residents of Jammu and Kashmir can vote for the state assembly election in Jammu and Kashmir. After going through all the pros and cons it is now important to know that people of Jammu and Kashmir must realize that revocation of the articles has only helped them. These articles made them special but in a negative way. They were alienated from their own nation for seven decades. No one lost their identity. India as a secular nation has opened its arms but now the challenge lies with the people of Kashmir to how to accept the given opportunity Team Lawtsapp

Recognized by :-

©2020 by Lawtsapp.com