VOLUME 3 : ISSUE 2

VOLUME 3: ISSUE 2

RESERVATION IN PROMOTION CANNOT BE CLAIMED AS A FUNDAMENTAL RIGHT: CASE COMMENT ON MUKESH KUMAR &ORS. V. STATE OF UTTARAKHAND

By

Shivani Singh

Abstract In India, the issue of reservation has been the core of discussion from the very beginning but has always been opposed by the upper caste of the society. Reservation refers to an act of reserving a seat for the socially & educationally backward and disadvantageous people in the society in the matter of education, promotion, employment and politics. Such type of reservation is often termed as positive discrimination. The concern related to reservation in promotion has been in issue from its inception. The author through this case commentary attempts to explain the concept of reservation in promotion through various judicial pronouncements. The present case commentary aims to provide an analysis of the recent judgment delivered by the Supreme Court of India in relation to the matter concerning reservation in promotion. The Supreme Court in the recent judgment has rejected the contention that “state can be mandated for granting reservation to specific communities at specific level. The framers of the Constitution emphasized on creation of a casteless society by uplifting the backward and weaker section of the society through granting reservation. Hence the author through this case commentary seeks to analyze the concept and contentions and decision given by the Supreme Court under the purview of Indian Constitution.

A CASE COMMENT ON SATISH RAGDE vs. STATE OF MAHARASHTRA (2021): CAN PENAL STATUTES BE INTERPRETED LIBERALLY?

By

Umamageswari Maruthappan

Abstract: Interpretation of statutes is one of the most important subjects in legal education. Different theories provide different methods of construing an act wherein courts play a prominent role. Even a small error can result in some unwanted or unpleasant consequences depending on the gravity of the issue involved. In a recent case titled, Satish Ragde vs. State of Maharashtra (2021), the Bombay High Court had passed a controversial order that exasperated people, especially women, across the country. Ordinarily, a woman is considered as an altruistic character. Societal differences have created a strong mark against empowering women to such extent that erasing the mark has now become one of the biggest challenges. Women of all ages are being subject to sexual harassment irrespective of their social or economic status. A country like India is witnessing widespread gender inequality. Courts, being the guardian for sustaining our constitutional principles, inherit a great responsibility in lifting up these vulnerable groups. Therefore, it is important for the Judiciary to exercise caution while dealing with a case involving a woman’s safety and security. In the instant case that involves sexual assault as the main issue, it is purported that the Learned Judge had wrongfully interpreted the concerned statute. This article makes a commentary on the aforementioned case judgement, including the Judge’s reasons for reaching the disputed conclusion. It was understood from the analysis that the Judge made a liberal interpretation of the Protection of Children from Sexual Offences Act. POCSO Act, being a penal law, necessitates a strict construction. In this regard, the article also makes an analysis on whether a penal statute can be interpreted liberally or not? To strengthen the research, references have been made to relevant case laws and other secondary sources

By

Adhija Mishra & Devvrat Singh

Abstract: Mahmood Farooqui versus State (Govt of NCT of Delhi) is a controversial verdict given by the Delhi High Court which as described by the feminists challenges the idea of ‘no’ means ‘no’. In the given case Prosecutrix displayed her unwillingness by saying no but the accused assuming it to be her consent based upon their prior physical relationship. Prosecutrix in the given case was not able to prove her claim of rape however, the main question of law in the given case revolves around whether the prosecutrix needs to convey her resistance to the accused. The following case affords a good chance to relook how the judiciary assesses consent and its components given substantial criminal law amendments have been made in the recent past in order to provide greater clarity on the issue of consent.

A CRITICAL EVASION OF TAX AS AN EXCEPTION TO THE DOCTRINE OF CORPORATE VEIL: A COMMENT ON JUGGI LAL KAMLAPAT V. COMMISSIONER OF INCOME TAX, U.P.

By

Sudhanshu Sachan

Abstract: The Hon’ble Supreme Court in Juggi Lal Kamlapat v. Commissioner of Income Tax, Uttar Pradesh held that evasion of tax by a company is a legitimate ground for the state authorities to pierce the corporate veil. Evasion of tax is a socio-economic crime which not only harms an individual but causes great detriment to the economy of a nation. The corporations can’t be allowed to commit such offences in the garb of corporate veil. Evasion of tax is the root cause behind creation of black money, money laundering and scams. In this comment, the author analyses the decision keeping in mind the impact of socio-economic offences over a country. It is further argued that the decision does not holds much water in law but is completely sound in equity.ble.

‘POLLUTER PAYS PRINCIPLE… A CARDINAL REVERSE MECHANISM FOR OUR ENVIRONMENT’

By

Natasha Gandhi

Abstract: Just as the name suggests, polluter pays principal refers to the obligation of the polluter for paying for the damage caused by him/her to the environment. Since he/she is the cause of the destruction or damage, he/she shall bear the cost to reverse that damage. It basically highlights the fact that if the one who causes the damage would take the responsibility for the same, then they shall be more careful and avoid such instances in the future. The levy that it’s the duty of the government to take if the environment is what causes the most damage. The idea of taxation for correcting externalities was first used by A.C. Pigou in the year 1920, which was later accepted by economists as an effective and efficient means to reverse the inefficiencies in distribution of resources. He suggested that subsiding the nuisance shall be implemented to the limit where the marginal cost of further damage is equal to the marginal benefit from reducing pollution and this ‘optimal pollution tax’ is broadly recognised bas the ‘pigouvian rate’. Polluter Pays Principal receives support from majority of the countries in Organisation for Economic Co-operation and Development (OECD) and in the European Community (EC) and is mentioned in Rio Declaration on Environment and Development in Principle 16.

JUVENILE DETENTION CRIMINAL PROCESS

By

Shri Lakshmi.D.N

Abstract: All children commit delinquent acts, but some children commit delinquent acts, some participate in delinquency more often and commit more serious offences. India is home to the largest child population. To mould children into the future controllers and light-bearers of society, an healthy, safe and nurturing environment must be provided. But as time passes by we have seen youth crime is a growing concern, what is more, shocking is the fact that a higher no of juveniles commit heinous crimes. This makes us question our society and government for sidelining this issue. This paper addresses the concern regarding juveniles, juvenile justice act 2015, Doli incapax, raising crime rate, causes such as Negligent parents, poor education, Environment they grow in. can juvenility claim be used what action is taken by the government and urges to give importance to this raising issue and make a better environment for the upcoming generation.

DIRECT TAX DISPUTE RESOLUTION: VIVAD SE VISHWAS SCHEME

By

Deepti Kant

Abstract: Through this research paper an overview of Direct Tax Dispute Resolution mechanism has been provided with the reference to recent Vivad se Vishwas Scheme. As on November 2019, there are around 483,000 pending cases of income tax amounting to almost Rs. 9.32 trillion², which is almost equivalent to collection of direct taxes over a period of 1 year by the government of India. Thus, these statistics prompted the introduction of direct tax dispute resolution mechanism in the Union Budget of 2020, which is also mentioned in the Union Budget of 2021 for reducing the huge piled up litigations over several years and for reaching settlement among the stakeholders. After that, the Central Board of Direct Taxes issued a circular containing the required clarifications. This research paper contains various aspects related to the scheme.The meaning of direct tax, disputed tax, and tax resolution have been given. It also talks about the previous ways and scheme of resolving a direct tax dispute. The fundamentals of the Vivad se Vishwas Scheme including its objectives, eligible persons, tax arrears, etc have been briefed in this research paper. The salient features of the scheme such as important dates, payment, etc. is also provided. This research paper elaborates the procedure for filing declaration in step by step manner along with the consequences associated with it. As the deadline for the scheme has been extended till 31^st march 2021, so the scheme remains relevant for the current scenario. The relevancy of the scheme as a way out in solving the ongoing Cairn Energy dispute has also been highlighted. Along with its benefits, there are some issues which needs to be addressed, which has been mentioned in this research work.

EVIDENTIARY ISSUE IN AREA OF CYBERSECURITY

By

Pratha Kotecha

Abstract: The prevalence of computer resources and the internet are important business tools that continue to gain prominence each passing day. These resources are used for making new and innovative products as well as services. Associated with this trend is the extent of cyber-crimes committed against or using computers. The criminals are using high-end technologies to commit such crimes which are beyond the reach and understanding of a layman. As a response to the growth of cyber-crimes, analyzing a computer or a digital device has become a necessity especially in the field of criminal investigations. This paper deals with the admissibility of the evidence in cybercrimes.

AYODHYA LAND DISPUTE- HISTORICAL LEGAL BATTLE

By

Shriya Mishra

Abstract:Religious beliefs, sentiments, faith are the basis of any religion and they cannot be questioned by anyone. Ayodhya land dispute is not merely about the civil land dispute but involves the faith and belief of the Hindus and Muslims. This paper highlights the historical events which lead to the rise of the dispute and answers the question of why it took too long in solving this dispute. What happened was that the Hindus believed that there was a temple on the disputed site that was destroyed and later on the Babri masjid was built on the same location. The parties to the dispute demanded their ownership right over the disputed land. The whole dispute revolves around the religious sentiments and the judgment which was passed by the Allahabad High Court in the year 2010. This paper focuses on what was the whole dispute about, who were the parties to the dispute and what were their claims along with the analysis of the judgment..

IS DEATH PENALTY A VIOLATION OF FUNDAMENTAL HUMAN RIGHTS: RIGHT TO LIFE?

By

Sophia Hembrom &

Abstract: Gradually, over the range of social turn of events, an understanding construction among nations and social classes that particular practices can now can’t go on without serious consequences any further. Custom human penance is a model; subjection, also, has been generally abandoned; genuine torture is comprehensively censured by most nations. A predominant piece of countries on the planet has now abandoned the use of the death penalty. In any case, the world has not yet moulded an understanding against its usage. The most long distance country on earth, China, executes a considerable number of people reliably, and the most amazing country, the United States, uses it regularly. 84 countries hold the usage of capital punishment. In any case, the amount of countries using the death penalty is declining and it is possible that general appraisal and squeezing element will persistently affect all countries to give up this preparation.

LEGAL INSANITY AS A DEFENCE

By

Nishtha Gupta

Abstract:Legal insanity, referred to as unsoundness of mind under IPC, is a significant defence available to the disadvantaged under criminal liability. Insanity deprives a person of their discerning capacities and their cognitive abilities, which law seeks to amend with the help of Section 84 of Indian Penal Code, 1860. Over time, insanity pleas have had several trial and errors, and although there is smooth functioning in other countries in the same department, India still seems to orbit around the M’Naghten rules. Insanity renders a person deficient of their reasoning capabilities, which cuts down the required element of mens rea in the act, short. The author has tried to convey a better understanding of the topic, amassing information available from diverse sources, and has tried to throw light on the lesser-known topics in a brief manner. This paper analyses the Law of Insanity in India. This paper analyses the Law of Insanity in India and methods that could be inculcated for lesser discrepancy in future cases.

UNBALANCED EQUILIBRIUM OF JUSTICE

By

Pranjaul Jhaveri

Abstract :The Indian legal system is an amalgamation of statutory law and case laws.Indian case laws play an essential role in shaping the law of the nation. The statutes primarily give a skeletal framework of the law. When the statutory provisions are applied to real-life situations and are interpreted by the Court, it paints a more comprehensive and holistic picture of the law. Therefore, case laws are an integral part of the legal system. The legal fraternity dramatically relies upon the judgments of the various Courts. Our legal system recognises the doctrine of stare decisis, also known as the doctrine of precedents. Therefore, the judgments and decisions by the Supreme Court are binding on the subordinate Courts. The recent judgement made by the Nagpur Bench of Bombay High Court in the case of Satish Ragde Versus State of Maharashtra garnered a lot of attention. The case came into limelight due the absurd and perverse interpretation adopted by the Honourable High Court. The main issue in the case is in consonance to the interpretation of the legal terminology of ‘sexual assault’and its application on the facts and circumstances. It is the treatment of the case which was underrated thereby leading to a misconstrued verdict- the acquittal of the accused.

FANTASY SPORTS: A FACE-OFF WITH INDIAN LAWS

By

Utkarsh Goyal

Abstract : The Indian gaming market has witnessed stupendous growth in the past few years. One of the main drivers of this surge is the rise of fantasy gaming and online betting in the country. From UEFA Champions League to the Indian Premier League, people are preparing their virtual teams for every possible sport in order to get their hands on the Grand Prize. With this arises the question of the legality of these games and their position with respect to Indian Gambling laws. This article will seek to clarify the meaning of Fantasy sports. It will also walk through the history and origin of these games. The legislation passed by the Indian states and the center’s actions to provide a legal framework is also discussed. Finally, the pertinent case laws and the landmark judgments in various Indian courts regarding the issue are also deliberated upon

AN ANALYSIS OF THE UNITED STATES’ ECONOMIC SANCTIONS IN THE EXERCISE OF NATIONAL SECURITY

By

Pranav Varma M

Abstract : The core objective of the WTO is to promote free commerce. Under any conditions, however, complete adherence to the free trade concept will be pernicious and almost impossible. A collection of exceptions is granted under the WTO system to balance free trade and other elements such as Human Rights, Environment, State Sovereignty, and Public Morality. Article 21, Article 14, and Article 73 of the GATT, GATS, and TRIPS, respectively, provide for national security exclusions. It gives member states the right to secrecy in national security concerns and allows them to adopt commensurate sanctions against fissile materials and derivatives, the commerce in guns, ammunition, and war implements, as well as conflicts and international emergencies. None of the WTO accords exclude a member from acting in accordance with the United Nations Charter’s commitments for the preservation of international peace and security. The central focus of this study is on the actions implemented by the United States in the guise of national security exclusions under GATS and GATT. The United States, as the world’s largest economy, is a prominent player in the World Trade Organization (WTO) and the world’s largest exporter and importer of products and services. De jure, the United States is the same as every other WTO member; yet, because of its economic, political, technical, and military clout, the U.S. enjoys more substantial rights than other WTO members. Furthermore, when we think of ‘controversial or disputed sanctioning measures,’ some of the most well-known trade-restrictive policies that spring to mind are those used by the United States.

LSS Corner

Will be out soon!