VOLUME 3: ISSUE 1
Abstract: This Research Paper is an attempt to cover each and every aspect of the concept of ‘Custodial Death’ in the Indian scenario and also at an international level. The word ‘custody’ basically relates to guardianship and protective care. When a person is arrested for committing a particular offence, he is kept in prison and this imprisonment under the guidance and care of policemen with state authority is known as custody. When a criminal is in police custody, he has to face a lot of negative treatments which includes certain kinds of torture and when the criminal dies because of the physical or mental torture, it is considered as custodial death. Some custodial deaths are also caused due to the lack of care and health in the prison. Custodial deaths, many a times leads to various controversies as it raises a question on the trust of general public on police officials. Many a times, police officials misuse the authority provided to them by the state to cause physical harm to the criminals just to satisfy their personal grudge or to show their dominating behavior.
A CRITICAL STUDY ON DOCTRINE OF RES SUBJUDICE AND RES JUDICATA
Anagha V Santhosh
Abstract: The Code of Civil Procedure, 1908 has adopted several doctrines to meet the changing need of the society along with assessing the efficiency of the judiciary. The doctrine of Res Subjudice and Res Judicata plays an important role in ensuring judicial accuracy as well as serving justice in an effective manner. These two doctrines prevents grave miscarriage of justice by barring certain suits from its institution as well as its trial proceeding. Also, it is embedded in the code with an aim to prevent parallel litigation, contradicting decision and ultimately saving the precious time of court. This paper aims at critically analyzing the difference between the doctrines of Res Subjudice and Res Judicata along with certain related provisions and its need in the contemporary society.
A HUMANE ATTITUDE REQUIRED IN DEALING WITH CUSTODY/BAIL OF AN ACCUSED
Abstract: The purpose behind calling for the Arrest and detention of the accused is to secure his appearances before the court of law for conducting the trial and if found guilty would receive the sentence. The law of bail has to dovetail two conflicting demands, namely on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures if accused person and on the other the fundamental canon of criminal jurisprudence. In the present case the supreme court has directed towards the grounds, by grounds they mean when the providers of judgment have to check the severity of the case to grant the bail or not. A case resultant of rape of a minor requires such punishment that is resultant in either a life imprisonment or death penalty to the accused. In the criminal jurisprudence there lies a presumption of innocence in the favour of the accused until they procure any evidences against him and found to be guilty. However, this approach could be excluded in the case where a specific offence has been committed by the accused for which there lies no exception for evading his arrest or liability of getting arrested by the police. The most vital surface of our criminal jurisprudence is that the granting of bail is the general rule and putting the accused behind the bars is nothing but a reformation in order to correct his sin. However, it is miserable to note that the justification behind the adoption of this theory has been lost sight of resulting into illegal detention in prisons for longer periods which has hampered the society at large.
A CRITICAL STUDY ON THE ASPECT OF CHILD CARE INSTITUTIONS GIVEN UNDER ‘JUVENILE IN CONFLICT WITH LAW’ In The Juvenile Justice (Care And Protection Of Children) Act, 2015
Abstract: Juvenile in Conflict with Law talks about children who have allegedly committed offences. The law demarcates between these two categories of children and it has also mandated for a separate and independent mechanisms and procedures to address their issues. This study is based on doctrinal research through relevant books, journals, and online research articles have been consulted for the same. This aims to delve into the critical aspects of child care institutions and begins with Child Care Institutions definition in Section 2(21) of the Juvenile Justice Act and according to this the Government has also given the guidelines for all the states to set up child care institutions, but the same are not implemented and followed by all states and though these institutions have been set up for the benefit of the juveniles, there are surveys that clearly point out as to how they have not been very helpful for the children. The survey also indicated that standard of these childcare facilities were not satisfactory as the facilities provided to children like individual bedding, proper nutrition, the hygiene, and maintenance of these institutions were also not satisfactory, which shows a failure in even providing the basic services to the children residing there. Not just this, it also showed a lack of the grievance redressal mechanism because of which there were no options available to the children to express their views or concerns to the appropriate authorities. Physical infrastructure limitations found in respect to financial transparency are not adherence to the provisions laid down under this act is few of the other failures of these Institutions. Hence, it can be said that though there are provisions for the implementation of childcare institutions, these have not been proved satisfactory and have been deemed to be inadequate in meeting the needs mentioned in Section 2(21) of the Juvenile Justice Act, 2015. All analysis in this paper is based on the statistical data that is available.
SEDITION IN INDIA: A COLOURABLE LEGISLATION?
Pratik Raj & Prashansa Singh
Abstract: Section 124-A of Indian Penal Code, best described as the law against sedition in India is rather a disputed piece of legislation. Originally introduced by the British in India, this was conceptualized in order to prevent dissent against the government in Pre Independent India. Ever since its conceptualization, sedition law has not undergone any major change and is as such an archaic piece of legislation. In a modern democratic society, such a law on sedition is considered to be draconian. However the law cannot be rendered futile only because of the fact that it is archaic in nature. Upon proper assessment, both demerits and merits of the law can be observed. Talking about merits of the law, one can claim that it keeps in check attempt to illegally overthrow the government and destabilize democracy. On the other hand, assessing its demerits one can say that it prohibits all forms of dissent against the government. What outweighs the other is the matter in question here. This research work is an attempt to analyze the merits as well as demerits of law of sedition in India and conclude accordingly.
THE HONOR IN HONOR KILLING IS A MYTH THAT CONCEALS REALITY
Abstract: Honor Killing is a convenient expression that softens the blow and doesn’t label its advancer as a criminal, but a mere protector of its ‘Honor’. Also loosely termed as ‘Customary Killing’ because ‘customs’ is a term that envelopes the attacker in a protective bubble from the consequences of its barbaric crime which is basically the extreme abuse of the basic Human Right – Right To Life. The mere fact that a woman and her family’s honor is considered to be centered around her Vagina is triggering. A woman’s honor holds the central value whereas the men become the sources or active agents of that honor; place your bets and the amount right and you could be the one to whom this baton of honor be passed by the family in marriage. In most countries, this data is not systematically collected for studies because most of these killings go unreported or are reported in the name of suicides or accidents by the families. This is an unholy and tangled web where the killers take pride in what they have done, the tribal leaders condone the act and protect the killers and the police connive the cover-up. The article aims at highlighting the social as well as the legal and judicial side of the topic that needs to be tackled. It goes on to understand the psychology behind the commission of such a heinous crime by one’s own family members. It’s not just the legal vendetta that needs to be checked upon, but the social, economic, political and cultural sensitization against the crime is equally important. It’s the patriarchal mindsets that need to be challenged before we challenge the bodies that conduct these killings proudly. The paper is divided into 7 parts – Introduction, When Did A Woman’s Sexuality Become The Torchbearer Of The Family’s Honor?, International Statistics On Honor Killing Around The Globe, India, Indian Legal Framework, How Can We Initiate A Change? and Conclusion
INSIDER TRADING AND THE ROLE OF DIRECTORS IN A COMPANY
Abstract: This Research Paper is an attempt to find out what is exactly and basically meant by Insider Trading in a company, the roles of the directors in the company, associated with insider trading program. To get a rough idea, insider trading is the process of buying and selling of the information found inside the company and is mainly available only to certain limited people to have access to this information. This states that the process of trading is carried out by the Directors and Employees who enjoy special status when compared with general investor. The core purpose of purchasing such shares of the company directly relates to personal individual benefit.
NORTH KOREAN REGIMES’ HUMAN RIGHTS VIOLATION
Akshiti Kumar & Ashwin Gupta
Abstract: The human rights record of the Democratic People’s Republic of Korea is one the worst in the world. It has been condemned globally, particularly by Amnesty International, Human Rights Watch, the United Nations and the European Union. The chorus against North Korea has been increasing, with Japan being the latest to join. The Democratic People’s Republic of Korea has asked the United Nations not to interfere in what they call it, its ‘internal affairs’. Human Rights in North Korea is a source of mysteries and fantasies. A very common fact on Human Rights in North Korea is that we have no idea what is happening there. As we know there are important gaps which need to be filled, not only regarding the issues of human rights but also the North Korean Penal System. Isolated from the rest of the world, North Korea is being ruled by the same family for three generations. The state controls everything and has a vast surveillance network to keep an eye on its citizens. The Media is sponsored by the leadership, mobile phones are uncommon, and the Internet is available in two or three developed states like Pyongyang. Although the North Korean Constitution promised right to faith to all the citizens in the country, this seems to be mere speculation. A report published by the United Nations in 2014 highlighted how Christians face persecution and severe punishments if they practice any other religion outside any State Controlled Church, which only considers their leader as God. It is said that North Korea has the biggest open prison in the world. People are punished for almost anything. There are many people in prison for crimes they did not commit. North Korea has a system of Collective Punishment, that means a whole family is convicted for a crime committed by one of them. Some prisoners are sent to brutal labour camps. It is important to highlight that instead of Death Penalty, North Korea executes its citizens in public. This harsh and barbaric form of punishment is a massive violation of human rights.
ENABLING STATUTE AND DELEGATED LEGISLATION: A JUDICIAL ANALYSIS
Sonal Gupta & Shivani Khareedi
Abstract:This research paper aims to understand the concept of enabling statute and its interpretation through the judiciary’s eyes. The enabling statute enables another authority to act in a certain manner. To thoroughly understand how an enabling statute functions, the author throws light upon the concept of delegated legislation. When the legislature gives powers to an authority of a lower rank to act on behalf of the authority conferring such power, it is known as delegated legislation. Such delegation of power allows the government to act efficiently. The enabling statute allows such authorities to delegate their powers to a subordinate body. This research paper focuses upon the laws formulated by the delegated legislation in relation to the enabling statute and how if such laws made by the delegated legislation are not in accordance with the enabling statute, affects the functioning of such a system. It also talks about the interpretation of enabling statute to further understand its scope and meaning for a better delegation of power to make laws. This analysis will be majorly done with the help of case laws.
AGRICULTURAL REFORMS, 2020: FROM MANDI TO MARKET
Kirpen Dhaliwa & Birkanwar Sandhu &
Abstract: The flawed nature of the existing agricultural machinery cannot be denied as well as the imperative need of reforms in favour of the welfare of the farmers. However, the recently passed Farmer Acts, first promulgated as ordinances by the President and then hastily passed by both Houses of the Parliament, have faced strong opposition and backlash from various farmer unions, states and experts. Farmer unions from several states of India have been protesting the Acts at various borders of Delhi for almost two months, demanding the repeal of these laws. The recent intervention of the Supreme Court in this matter, by staying the implementation of the Acts and constituting a committee to enable dialogue between the Union and the farmers has also not been viewed favourably by the farmers. The Acts aim to give farmers the freedom to sell to any buyers outside the APMC premises, enter into contracts with buyers directly and lift restrictions on stock limits to incentivise private investment in agriculture. The Acts seem promising on paper but fail to acknowledge the practical difficulties associated with the proposed set up. The demand of the farmers to legalise MSP has also not been accepted.
PROPERTY RIGHTS IN HUMAN BODY- A JURISPRDUENTIAL PERSPECTIVE
Tanya Sinha & Yash Gupta
Abstract:Property has been characterized as a “bundle of rights” consisting of the right to possess, to use, to exclude, to enjoy profits, and to dispose. As far as property in the human body is concerned, one sees various collections of some component rights in this bundle, but not the whole bundle. Furthermore, the exact outlines of these component rights are often uncertain and depend on the viewpoint from which one approaches the body. Concerning the bodies of others, our property rights are considerably more restricted. The common law furnishes “quasi-property” right in the body of the decedent, which includes the right to possess the body for purposes of burial, to recover damages for the mutilation of the body, and the right to prescribe the manner and place of burial—but not the right to sell the whole or parts of the decedent’s body. In this Article, the authors attempt to reflect on the jurisprudential aspect of property rights in the human body with the help of taking viewpoints of famous Jurists like John Locke, Hegel and Immanuel Kant, and thereby give their own interpretation to the very debatable question “Should humans have property rights in their body?”
WHISTLE BLOWER POLICY AND CORPORATE GOVERNANCE: A COMPARATIVE STUDY WITH REFERENCE TO THE UNITED STATES AND INDIA
Abstract : In the growing era of digitalisation and globalisation the need of the hour is to protect the interests of general public from various corporate scams happening in India. This paper explains the origin and legal implications of the Whistle-blower policy and corporate governance. The various attempts made by the confederation of Indian Industries on norms of corporate governance were later incorporated by SEBI within their listing agreement. Later compare the United States perspective and Indian scenario regarding the same. Further, there is still no comprehensive whistle blower law in India. But SEBI included voluntary guidelines in 2003 with an amendment to Clause 49 of the listing agreement. The Clause 49 has given option for the company as to whether the policy has to be introduced or not (diluted- non mandatory clause). This was incorporated based on the N.R Narayana Murthy report. Companies Act being the mother of corporate sector has no clear provision which talks about whistleblowers and their protection. It is silent on that aspect. And also Indian Corporate Governance cannot be treated as mere Corporate Social Responsibility. It should be a mandatory provision and necessary safeguards have to be provided. Not only Directors or auditors are liable for the growth of company but also employees and other stakeholders
CONFLICT BETWEEN MINING INDUSTRY AND RIGHTS OF TRIBALS IN INDIA
Abstract: Various legislations such as Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and the Panchayat (Extension to Scheduled Areas) Act 1996, have now the been enacted to protect the adivasis from the atrocities committed by the state and mining lobby. Despite such various legislations and constitutional provisions such as Article 21 of the Constitution of India, the tribal population continues to suffer because of the mining activities that are carried out excessively ignoring the rights of the Adivasis. Mining is a necessary evil but there is an urgent need to protect the indigenous population from the atrocities of the mining mafia. A huge gap exists between the actual legal instruments and its implementation in real world, the Judiciary has to be more ecocentric in its approach.The research paper aims to examine the conflict between mining industry and the tribal laws in India. It examines how the identity of the tribals revolve around their lands which are considered nothing more than resources for mineral extraction by the mining industries. It also throws light on various legislations which have been enforced by the Parliament to provide and protect various rights to the tribals over their natively occupied land. Despite these legislations there has been violation of adivasis’ rights such as violation of right to live, right to usage, right to free, informed and prior consent, rights of ownership over the minerals in the land they live. It also analyzes the approach of Indian Judiciary in cases dealing with the dichotomy between mining industry and the tribal laws. It also examines the principle of sustainable development as a way to resolve this conflict to some extent.
DERELICTION OF DUTY DURING SURGERY BY PHYSICIAN AND INDIAN JUDICIARY
Abstract: Medical professions are expected to exercise and provide reasonable degree of care and knowledge and also exercise reasonable degree of care in treating patients. The physician owes a duty to the patients. Failure to show due care or skill in medical treatment resulting in death, injury or pain of the patient gives rise to a cause of action in negligence. For dereliction of duty several types of suits can be filed under tort law, consumer protection act, Indian Penal Code etc and physician will be held liable accordingly. The phrase dereliction of duty is otherwise known as negligence which always affects the reputation of the physician. The physician should be aware of how Indian judiciary deals with the medical negligence. The requirements of medical negligence are classified as 4D’s which is Duty, Deviation, Direct Causation, Damages. We cannot blame physicians in every cases of negligence; even the expert in the field may do mistakes negligently but the field of physician is a way more important field which deals with lives. A person who has adequate knowledge about surgery but he had shaking hands; he cannot attempt to do surgery because negligently he may cut the wrong part which may cause to end of the life of a person.
VIOLENCE AGAINST WOMEN
Abstract: Violence against women is the major social problem across the globe. It stands as the barrier for women in various ways because of which they are not able to contribute or participate in social, economic, and political spheres. Violence against women is any physical, emotional, sexual and psychological harm or suffering which is an act of gender based violence including threats, coercion whether occurring in public or private life. Violence like rape, sexual harassment, acid attack, dowry deaths are increasing in an alarming rate. The intimate partners are the main accused in majority of the cases. Any kind of violence is violation of human rights.
TRANSPOSED CULTURE OF MALE AS A GUDGEON IN SEXUAL ASSAULT, RAPE
Abstract: God has created everyone as equal (both men and women). Then the indulgence of a factor called discrimination in the rape of males by law is something which is intolerable. The percentage of rapes and sexual assaulting which is happening to female is higher than male but the fact that the percentage of male rapes is increasing can’t be denied. Being a citizen of 21st century, where everyone is treated equally and gave equal freedom in opportunity, speech, expression, this discrimination of- course should not be accepted. Constitution can give certain privileges for the upliftment of the women society. But it should not deny the feelings and trauma what male are facing on the ground of sexual assaulting and rape. And in certain cases, the females are misleading the privilege provided to them. That thing should be abolished. Best instance for misleading will be false rape cases and there also, the pain of male victims can’t be compensated. This paper shows about what are the myths and the realities about male’s rapes and sexual assaulting with statistical proof, the unique issue faced by males, legal provisions, interpretation of in appropriate laws and certain important case laws with rectifying measures available for male victims.
CASE COMMENTARY: SURENDRA KOLI V. STATE OF UTTAR PRADESH
Akhilesh Aggarwal & Shipra Agrawal
Abstract: As the world progresses, hate crimes and the barbaric nature of humans have taken a new rise. Numerous developments in the form of rules and regulations over time have helped the Judiciary of the land to regulate and safeguard the interest of the society whilst ensuring adamant and strict punishments to the ill-elements of the society. Surendra Koli v. State of Uttar Pradesh is a classic example of such a case. This case not only revolved around the concepts of kidnapping, serial murders, and sexual assaults but also on the hate crime of cannibalism. It was the intensity and the gruesomeness of the crimes committed in this case that the apex court considered this case under the doctrine of rarest of the rare cases. The Doctrine of the Rarest of the rare cases was first established in the Bacchan Singh v. the State of Punjab. In this case, the Honourable Supreme Court wanted to decrease the ambiguity for the courts for giving the highest punishment of the land i.e., the death penalty when dealing with offenses that were culpable with death. It was upheld by the court and a principle was laid down that stated that the court must award the death penalty to the convict(s) only in the matters of the rarest of the rare cases. However, to award a death penalty the courts have to ensure that the case is one of the rarest of rare cases where the normal sentence for murder in that case prescribed by law would be life imprisonment and the death sentence is being awarded as an alternative for the offense of murder and in such a rare case the alternative is excluded.
ACCUSED OR ACTUAL VICTIM: THE SUFFERING OF MEN IN THE FALSE RAPE ACCUSATIONS AND THE ROLE OF MEDIA IN THE CRIMINAL JUSTICE SYSTEM
Ananay Aryendra & Muskan Chauhan
Abstract: Menace of false rape cases on the pretext of one or other has been rising since the new amendment in rape law in the 2013 in India. False rape accusations ruins lives. The fact is evident from the study of court judgments delivered by the fast track courts constituted across the country. There is need to put early check on this rising menace which may destroy fabric of society and misuse of law for various motives. The laws are silent about this. Courts are not paying any attention towards the anguish of men suffering from false rape accusations. Many debates have been going on, on whether these allegations are true or false; according to the feminists these cases are rare but according to the men who have actually suffered from it have different views over it. There are many reasons which are prevalent in the society in which false accusation in imposed on men, without doing any investigation or without checking the background of that person, and once the accusation is imposed on the men, the society started judging him and mistreating him even when he is not the one at fault. The research paper will focus on the abovementioned issues. If the present situation is compared with the previous one it was clear that this was not that prevalent, the difference of social and economic conditions can be brought into the picture. On the other hand media plays a very crucial role in these situations. It is considered as the fourth pillar which tends to threaten the right to fair trial. It completely failed to understand the essential gap between accused and convict. In particular, the media’s method of discussing and portraying men in such situations is not at all justified. Role of media will be discussed in the research paper, thoroughly. The research paper has adopted doctrinal and analytical research methodology to critically analyze the anguish of men suffering from false rape accusations. The main purpose of the research paper is to focus that men also suffer, the future of these men are put on stake just because of some not justified motives, it will also deals with the recent case laws.