Rajasthan School of Law for Women, Jaipur
The Virus that Leads the World towards War
Ms. Ritika Gaur
When the difference between States reaches a point at which both parties resort to force, or one of them does acts of violence which the other chooses to look upon as a breach of peace, the relation of war is set up. In a tug of war, the COVID-19 pandemic has added a new dimension to the global strategic balance and triggered a chain of events in the struggle for global strategic dominance, besides causing tremendous human suffering.
The Severe Acute Respiratory Syndrome Corona Virus 2(SARS- CoV-2) is an uncontroversial original epidemic quickly turned into a pandemic, that WHO declared in March 2020. The outbreak of the Virus is one of the biggest risks that humanity has faced so far in this Century. It exposed the World to unprecedented human tragedy and the danger of a possible biological weapon, thereby adding a new dimension to the ongoing Third World War. It has also raised the suspicion that, despite the Biological warfare Convention, research on these weapons continues to be pursued.
On October 24, 1945, the United Nations was established. The Preamble of the U.N. Charter indicates that the U.N. is born as a result of the experiences of the devastating war, with an object to save the succeeding generation from the scourge of war. Article 1 of the U.N. Charter defines the purpose of the U.N. to maintain international peace and security and to develop friendly relationships among nations. The Sanfrancisco Conference (June 25, 1945) provided that the Charter of the organization would come into force only when China, France, Britain, America, and Russia signed and ratified it. These five nations are also recognized as a permanent member of the Security Council of the U.N. under Article 23 of Charter, with the function to maintain International Peace and Security. As the U.N. agencies and its members are responsible for the fulfillment of the main objects of the U.N. Charter that is to save the world from war and the promotion of human rights of each individual but the irony is this that original members of Charter are ignoring it. According to the Constitution of the World Health Organization, every State has the obligation to inform the WHO of anomalous situations related to human health. Article 7 of the Regulation of WHO imposes a duty upon members to provide all evidence of unexpected or unusual public health events to WHO. China ignores them all, used WHO to mask its lies, and started geopolitics over Corona which resulted in a complete lockdown of the world that affected many human lives and economies of the world. Once again the leading protagonist The United States of America and communist country China is in the tug of war ignoring the impact of it on human lives and rights. China has started encroaching over the territories of its neighbor country while ignoring Article 2 of the Charter, this is not the end all the permanent member of the U.N. is now standing with their ready arms and ammunition. Unlike the last two world wars this time the enemy is invisible but is responsible for the massacre, whosoever have the strong economy will be won this time. This virus is not only killing human beings but also International peace and security.
LAWS FOR MIGRANT WORKERS: ISSUES AND CHALLENGES DURING COVID-19
Ms. Purnima Gautam
Indian Constitution provides a comprehensive framework for the protection of interests of migrant labor under Fundamental Rights, Directive Principles of State Policy, and the Preamble. The Fundamental Rights provide right to life and personal liberty, right to livelihood, equality before the law; prohibits discrimination, exploitation of labor. Many labor legislations have been introduced to improve the condition of the working class. For instance, Workmen’s Compensation Act, Factories Laws, Wages Laws, Employees’ State Insurance Legislation, Industrial Dispute Laws, etc., are some of the legislations directed for the welfare of the workers and to ensure social security. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 is one of such legislation that aims at the benefit of the migrant workmen who move from their home states to migrant place in seeking conducive jobs. The inclusion of Inter-State Migrant Legislation in the statutes are in consonance with dispensing social justice which is enshrined in the Preamble of the Constitution of India.
The deplorable state of migrants during the lockdown: In order to prevent the spread of COVID-19, honorable Prime Minister Narendra Modi ordered the lockdown with less than four hours’ notice. “Forget what it is like stepping out of the house for 21 days (extended later on). Stay at home and only stay at home,” he said. A person cannot go out and can work from home only. He mentioned nothing specific about the daily-wage earners mostly migrant workers whose income, in an instant, disappeared as the corporate establishments have to shut down in consonance with this order and they cannot in any case work from home and earn money. They have to deal with double terror that means if they stay at home as ordered then they will die out of starvation and if they come out the probability of a virus attack is high. After the Order of lockdown was issued, the government’s effort went into disarray as thousands of migrant laborers started flouting lockdown orders to head to their homes, fearing starvation following the imposition of restrictions on their occupation and movements. The lockdown shut off all access to resources and movement. Migrant workers who number more than 40 million across India were the first and worst affected. The migrant workers, particularly from the States of Gujarat, Rajasthan, Maharashtra, Chennai, Andhra Pradesh, Telangana and, Delhi started moving on foot to reach their home states. They knew they could not afford to stay in the city if they had no income. In their village, they had family, wouldn’t have to pay rent, and were more likely to get something to eat. All buses, trains, and taxis had been stopped, so they had no transportation. So the people started walking, first in a trickle and then in a flood. By the next evening, a shocked nation saw images of thousands walking down highways. Some tried to flee in container trucks carrying essential commodities, some of them were intercepted and some of them were subject to mishappening (1. In a tragic incident at least 25 migrant laborers killed and 33 others injured when a truck carrying them collided with another truck in Auraiya, Uttar Pradesh. 2. In another poignant incident, a train in Maharashtra crashed into a group of migrant workers walking along the rail board tracks on to their way back to their home state killing at least 16.)
The crisis is a product of the immediate concern due to the pandemic, but it exposes long-term defects and some structural gaps that remained hidden under the powerful narratives of ‘development’. Today, the fact that even after 70 days of the lockdown, the workers are determined to go back to their villages even in meanwhile they meet death, proves the failure of governance. Full social and economic rehabilitation of the migrants for leading a life of dignity and equality, which is the quintessence of Article 21 of the constitution should be addressed by governments with a full sense of urgency and seriousness of concern, as the lives of migrant workers matter, the lives of the homeless matter. Thousands of homeless people need protection. The Indian government’s responsibility to protect its people from the outbreak should not come at the cost of human rights violations of such workers.
Was justice actually served?
In light of recent encounters
Ms. Shristi Kaushik
B.A.,LL.B Semester III
Encounter killings of criminals can be considered as a blot on society and this system must end. “the disturbing thing is that a large number of people strongly approve of meting out instant justice” these were the words of former director general of police Dr. N.C.Asthana.
Generally, whenever an offence is committed which can be settled through judicial proceedings through system of law and order, instead of that people demand for instance decision or feel more relieved by the death of the accused through encounters rather than waiting for justice to come through judicial proceedings.
Most of the time we are driven with our emotions forget that behind these encounters there can be a back story attached too as every coin has two sides. People use to judge by listening one side of story and want an instant judgement for the accused person therefore people support in favour of encounter killing.
For instance, imagine that someone who was falsely accused of some heinous crime that person is detained by police and somehow got killed in an encounter or, someone who has committed a heinous crime but after commencement realized that he have committed an act of cowardice and that person is ready to accept the punishment and devoted to reforming himself still at the end got killed due to encounter.
The above stated hypothetical situation tells the story about “encounter killings”.
Was justice actually served in these cases? Whether these killings are real? Is it against the principle of natural justice? What rules the law lays down and why they are flouted? Is it violative to rule of law? These are some common questions that must be answered.
- Encounter killings and India’s stand
Encounter killings is the term used to describe alleged extrajudicial killings by police, supposedly in self defence, when they encounter suspected criminals. In India encounter killings are evident at large, including in its most populous state, Uttar Pradesh as per records 119 suspects have died in so called encounters in the state in 2017.
An irony is one side India follows the principle of ‘natural justice’ and ‘rule of law’ by providing justice through system of law and order, on other side, killing of accused person in name of encounter or self defence. Also public tend to consider these personals as heroic figures.
- Is it a boon or bane? And does it actually served justice?
The practice of encounter killings has always been a controversial subject with in the criminal justice system and recently after encounter of Vikas Dubay it has created an atmosphere of debate among people. Almost everyone has their views on this topic many are those who consider it as boon as they tend to believe in instance justice rather than waiting for courts decision while some are those who condemned it as a bane as this can’t be counted as medium to serve justice.
Mostly public sentiments were overwhelming in favour of these extrajudicial executions this attitude of public was quite evident in the case that took place Hyderabad where four man accused of rape and murder of a women, an incident that shook the nations collective conscience, they were shot dead by police when they allegedly snatched a weapon and tried to escape during crime scene reconstruction.
Our Indian judicial system provides for principle of ‘rule of law’ that means no person is above law and that every person whatever be his rank or condition is subject to jurisdiction of ordinary courts, also no person shall be subjected to harsh, uncivilised or discriminatory treatment. But when these extra judicial executions takes place the question arises that are they violative to rule of law? And if yes then what can be procedure to stop? In spite every person having right to go under proper trial by court do police have right to take lives? Answer to this can be that police force has the right injure or kill criminal for the sole and only purpose of self defence or where it is imminently necessary for maintenance of peace and order however, nothing must be done to settle personal feuds or with any ulterior malafide motives, which could be apparent from facts of above case.
NHRC guidelines in 2010 highlights that if the use of force cannot be justified and death falls over side the jurisdiction of above mentioned reason, it is a crime and police officers would be guilty of culpable homicide an act which result in a person’s death but is held not to amount to murder also Supreme Court of India in its landmark judgement People’s Union for Civil liberties vs State of Maharashtra (2014): observing that this ‘encounter’ philosophy is a criminal philosophy had warned policeman that they would not be excused for committing murder in the name of ‘encounter’ on the pretext that they were carrying out the order of their superior officer for politicians.
Although everyone wants that the one who has committed a crime should be punished as soon as possible but it can’t be justified by their extra-judicial execution as our country has its own system of law and order to provide justice through courts and these acts disturb system of justice in a country by taking matter into hand if there is a crime committed there can be many possibilities attached to it may be the accused person could be innocent or guilty but this job is of Judiciary to decide and give the punishment accordingly justice can’t be served by encounter killings because many aspects of that case remains undiscovered as it does not go under proper proceedings.
Fake encounter completely side step and circumvent Legal procedure as it essentially means bumping someone off without a trial. Policeman often justify this method by claiming that there are some criminals against whom no one would dare to give evidence and so the only way to deal with them is through fake encounter the problem is that this is a dangerous philosophy and can be misused for instance if someone wants to eliminate a rival he can bribe to unscrupulous policeman to bump of his rival in fake encounter after declaring him a terrorist.
In prakash kadam v. Ram prasad vishwananth gupta: the Supreme Court observed, that fake encounters by police are nothing but cold blooded murders and those committing must be given death sentence placing them in category of the rarest of rare case.
Public tends to believe in this well-known phrase that ‘justice delayed is justice denied’ that can be counted as one of the reasons why public believe in instant justice through an encounter rather than waiting for the court decision to come, as judicial proceedings have to go according to establish rule of law justice. To conclude, it may be said, this medium of extrajudicial executions can’t be counted as a proper mode to serve true justice as there can’t be no shortcuts to establish rule of law.
Kesavananda Bharati v/s State of Kerala
Ms. Aishwarya Menon
B.A.,LL.B Semester V
Kesavananda Bharati Swamiji, the sole unwitting petitioner in the historic Fundamental Rights case passed away.
Kesavananda Bharati passed away due to age related ailments on 6th of September. He was the head seer of the Edneer Mutt in Kasaragod district of Kerala since 1961 and a prominent figure in the history of Indian democracy.
The case was primarily about the extent of Parliament’s power to amend the Constitution. First, the court was reviewing a 1967 decision in Golaknath v State of Punjab which, reversing earlier verdicts, had ruled that Parliament cannot amend fundamental rights.
In the early 1970s, the government of then Prime Minister Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the earlier mentioned Golaknath.
In RC Cooper, the court had struck down Indira Gandhi’s bank nationalisation policy, and in Madhavrao Scindia it had annulled the abolition of privy purses of former rulers.
All the four amendments, as well as the Golaknath judgment, came under challenge in the Kesavananda Bharati case– where relief was sought by the religious figure Swami Kesavananda Bharati against the Kerala government vis-à-vis two state land reform laws.
The court was also deciding the constitutional validity of several other amendments. Notably, the right to property had been removed as a fundamental right, and Parliament had also given itself the power to amend any part of the Constitution and passed a law that it cannot be reviewed by the court.
Verdict of the Supreme Court-
The landmark judgement was delivered on 24th April 1973 by a majority of 7:6 wherein the majority held that any provision of the Indian Constitution can be amended by the Parliament in order to fulfil its socio-economic obligations that were guaranteed to the citizens as given in the Preamble, provided that such amendment did not change the Constitution’s basic structure.
In its ruling, the court held that fundamental rights cannot be taken away by amending them.
The court said that Parliament had vast powers to amend the Constitution, it drew the line by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.
Despite the ruling that Parliament cannot breach fundamental rights, the court upheld the amendment that removed the fundamental right to property. The court ruled that in spirit, the amendment would not violate the “basic structure” of the Constitution.
Kesavananda Bharati, in fact, lost the case. But as many legal scholars point out, the government did not win the case either.
What is the basic structure doctrine?
The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws. The original Weimar Constitution, which gave Parliament to amend the Constitution with a two-thirds majority, was in fact used by Hitler to his advantage to made radical changes. Learning from that experience, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which is considered ‘basic law’.
The basic structure doctrine has formed the bedrock of judicial review of all laws passed by Parliament. No law can impinge on the basic structure.
What the basic structure is, however, has been a continuing deliberation. While parliamentary democracy, fundamental rights, judicial review and secularism are all held by courts as the basic structure, the list is not exhaustive.
The Constitutional Bench ruled by a 7-6 verdict that the Parliament should be restrained from altering the ‘basic structure’ of the Constitution.
The court held that under Article 368, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would change the ‘basicstructure’ doctrine since the ruling of the case has been interpreted to include the supremacy of the Constitution, the rule of law, Independence of the judiciary, the doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government.
Shortcomings of the verdict:
It mentioned that the Parliament could not interfere with the basic structure of the Constitution, but left open the question of what constituted “basic structure” And the debate about the basic structure still continues. It refused to consider the right to property as a fundamental right that was covered by the ‘basic structure’ doctrine.
It ruled that Article 368 does not enable Parliament in its constituent capacity to delegate its function of amending the Constitution to another legislature or to itself in its ordinary legislative capacity.
The basic structure doctrine applies only to the constitutionality of amendments and not to ordinary Acts of Parliament, which must conform to the entirety of the Constitution and not just to its basic structure.
The ruling of Keshavanandan Bharati case has cemented the rejection of majoritarian impulses to make sweeping changes or even replace the Constitution and underlined the foundations of a modern democracy laid down by the makers of the Constitution.
Trials by Media – A Hindrance to Fair Investigation
Ms. Purnima Gautam
The media is the most powerful entity on Earth as they have power to make the innocent guilty and to make the guilty innocent. Because they control the mind of the masses. However, this power leads to denial of fair-trial to the accused. This creates a dilemma between two pillars of democracy i.e. Media and Judiciary. Now lets understand what media trials are.
Whenever a sensational criminal case comes to be tried before the court, there is an expected upsurge in the public curiosity. Using the thirst fir sensational news, media including TV channels, newspapers, news websites etc. start publishing their own version of the facts. They call it investigative journalism which is nit prohibited in India. The impact of television and newspaper coverage on an individual’s reputation by creating a widespread perception of guilt or innocence even before a court of law has announced its verdict, is called ‘Media trial’ or ‘Trial by media.
The basic principle of criminal jurisprudence that “every accused is presumed to be innocent unless the guilt is proved” is usually hampered by media trials. An accused is declared guilty at the time of arrest blatantly ignoring the doctrine of presumption of innocence of the accused.
In the very famous case of Aarushi Talwar’s Murder, 2013, the media had declared who was guilty and who was not even before the actual trial had begun. There were mass protests and the public had gone into hysterics over the fact that her own parents were the cause of her death.
Legal provisions pertaining to media trials:
Freedom of Expression
The freedom of speech and expression has been enshrined in the Article 19(1) of the Constitution. This freedom also includes freedom of press. The freedom of press means freedom from interference from authority which would have the effect of interference with the content & circulation of newspapers. However, this freedom is not absolute and thus subject to certain restrictions laid down in Article 19(2).
Right to life and liberty
The media trial has been alleged to violate the Fundamental Rights secured by Article 21(right to life and liberty) of an individual. Right to privacy has been recognized as a right ‘implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21.
During media trial, not only the suspect and accused but also the victims suffer from excessive publicity and invasion of their privacy rights. When the media unilaterally conducts a string operation, it violates the privacy of accused person and makes it liable for legal action. The right to privacy of an individual should be protected unless there is an identifiable public interest.
Right to fair trial
There is always a tug of war between fair trial and free press. Freedom of press is an important part of democracy as it plays a vital role in informing citizens about public affairs and monitoring the actions of government at all levels.
At the same time, the right to a fair trial is an absolute right that is provided to every individual, within the territory of India vide Article 14, Article, 19, Article 20, Article 21 and Article 22 of the Constitution of India.
A fair trial means a trial in which bias or prejudice for or against the accused, the witness or the cause which is being tried, is eliminated. Thus, in order to secure the right to fair and impartial trial all Indian criminal laws are well made to safeguard these rights.
The Hon’ble Supreme Court in the case of Zahira Habibullah Sheikh & Anr vs State Of Gujarat(2004)4SCC158 has held that, fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm.
What amounts to denial of fair trial?
The obstruction or interference in the administration of justice Vis a Vis a person facing trial.
The prejudicial publication affecting public which in term affect the accused amount to denial of fair trial.
Prejudicial publication affecting the mind of the judge and Suggesting the court as to in what manner the case should be preceded.
Contempt of court
Contempt of Court refers to the offence of showing disrespect to the dignity or authority of a court. The provision owes its origin to the principle of natural justice. Contempt may be civil or criminal. Any publication which prejudices or interferes with the due course of any judicial proceeding would amount to criminal contempt of court. Thus media trial falls under the ambit of the contempt of court.
Under the Contempt of Courts Act, 1971, any publication which interferes with, obstructs or tends to obstruct any proceeding, be it civil or criminal, and the course of justice, which is actually a pending proceeding, constitutes contempt of court. It has been termed as contempt because some of the acts which are published before the verdict given by the court can mislead the public and affect the rights of the accused for a fair trial.
Contempt of court has been introduced in order to prevent such unjust and unfair trials. No publication, which is calculated to poison the minds of jurors, intimidate witnesses or parties or to create an atmosphere in which the administration of justice would be difficult or impossible, amounts to contempt. Commenting on the pending cases or abuse of party may amount to contempt only when a case is triable by a judge.
As there is always two sides of a coin in the same way media also plays positive and negative role. It is very important for a democratic country to have free press and it is well established that media is the fourth pillar of democracy. However, trials by media maligns this stance. Therefore media has to be properly regulated by courts. Parallel process of trial by media should not be allowed when a trial is already going on in court.
Poverty is not just a lack of money
“I believe that, as long as there is plenty, poverty is evil.”
Poverty is not just lack of money it is not having capabilities to realize one’s full potential as human being.
Poverty is similar to that of a slave when a person is unable to do anything according to his will.
It is a climax situation when a person feels the lack of important things to continue the life like roof, food, clothes, medicines etc. Furthermore, it can lead to other problems like poor literacy, unemployment, malnutrition, etc only a lack of money and all things are needed to live life in a proper way.
Poverty is a human condition which brings disappointment and pain in human life. Poverty makes a child unable to attend school in childhood and is forced to spend or survive in a miserable family.
It encompasses the various deprivations experienced by poor people in their daily lives such as poor health, lack of education, inadequate living standards, disempowerment, poor quality of work, the threat of violence, and living in areas that are environmentally hazardous, among others.
This creates a situation in which people fail to get sufficient income the main reason of poverty, there is an increasing gap between illiteracy, corruption, rising population, weak agriculture, prosperities.
Those people who are barely able to pay for food and shelter simply can’t consider these other expenses. The increased cost on the health system, the justice system and other systems that provide supports to those living in poverty has an impact on our economy.
Poverty is known as multidimensional problem because where there is poverty there is shortage of food, malnutrition occurs in children of that place and this is the main cause of difference between poor and rich.
- Global Multidimensional Poverty :
The global Multidimensional Poverty Index (MPI) is an international measure of acute multidimensional poverty covering over 100 developing countries. It complements traditional monetary poverty measures by capturing the acute deprivations in health, education, and living standards that a person faces simultaneously.
The concept of poverty was also impacted by Sen’s Capability Approach. According to Sen, poverty is a complex and multidimensional concept which needs to take into consideration people’s diverse characteristics and circumstances. The poor generally lack not only income, but education, health, justice, credit and other productive resources, and opportunities. Thus, poverty should be seen as deprivation of capabilities, which then limits the freedoms to achieve something, rather than lowness of income .Poverty in this framework becomes a ‘capability failure’ – people’s lack of the capabilities to enjoy key ‘beings and doings’ that are basic to human life.
- AMARTYA SEN’S CAPABILITIES APPROACH TO POVERTY:
Sen’s capabilities approach, development should focus on maximizing what an individual can choose to achieve in life such as the ability to choose the many different cultural values and practices to adopt etc. This will ultimately affect the individual’s well-being which is defined as the actual enjoyment of the individual’s choices deriving from the range of options available to them
As guidance, Amartya Sen proposed that there are five general freedoms which under capabilities, the derogation of which will give rise to deprivation or poverty:
- Political freedom including civil rights;
- Economic facilities which includes access to credit;
- Social opportunities which include arrangements for access to health care, education and other social services;
- Transparency in relations between people and between people and governments; and
- Protective security which includes social and economic safety nets such as unemployment benefits and famine and emergency relief.
Through this lens, poverty is no longer confined to the issue of income and education but rather looks at the idea of whether an individual is able to enjoy the full range of choices and then have the actual ability to realize the choice that the individual has made. In this lens, poverty is now seen as deprivation of choices available for an individual to live the life they have reason to value and also the deprivation of the individual’s abilities to exercise that choice.
Money, income and wealth are the first things people think of when talking about instability and poverty. While money is important to stabilizing lives, it is important to take into consideration other resources. To sum up, human development, poverty and inequality are all essentially multidimensional and people-centered concepts. Poverty refers to the deprivation of capabilities, while inequality entails people having different abilities to choose and different freedoms. All these concepts have been shaped by Sen’s Capability Approach, which brought drastic changes in policy making and important measurement challenges.
“Poverty is the worst form of violence”
RAPE: AN ALARMING CALL FOR THE NEED OF STRICT LAWS IN INDIA
MS. TARANA NOOR
Rape is the 4th most common crime in India. India tops the list on the world’s most dangerous countries for women. Men here have raped 4-5-8 months old babies to 86-90 years old woman. India which was once known for it’s culture is drastically changing into a dangerous place for all the women out there. Every hour, every second when a woman is out there she is worried about her safety and what if the same can happen to her that has happened to other innocent lives. A woman cannot step outside her house because now she questions herself with many ifs and buts. What if she is the next?. Will she be alive the next moment or not? Are the men around her safe or not? Can she be outside when it’s dark? Whether what she should wear in order to be able to return home safely? Take a moment to think what if we would have taught the men of this country about how they should look upto women, maybe today what’s happening would not have happened. But today, no lady can survive it in this country unless there are strict laws for the safety and security of women and strict implementation of the same. A woman is afraid to be out there and fight for herself because of the mentality that the people in our society holds. Every mother, every daughter, every woman, every girl is shattered and broken by the disgrace that men has brought to this country and to this society. So that the women of this society walks freely in this country without any restriction. In an emerging society like ours nothing has changed for women. They are still judged by their clothes. Look at the irony now, it’s men who decides what women should wear. The clothes must be worn on the basis of what suits men’s eye. According to the men of this country women’s clothes act as bait or an invitation or consent for men to rape. It has become more about what a women does and neglecting the part how a man treats a woman. It’s not about what clothes a girl chooses to wear, it should be about how a man sees her, and with what mentality. It’s not about the time at which woman should step outside the house, it should be about how safe a man can make any place for a woman irrespective of time. It should not be about how women or girls are harassed and raped, it should be about who did it. We must replace the phrase ” Who was raped” to ” Who raped”. A woman must be heard. She must be allowed to raise her voice. She must be given the freedom that she deserves.
SECTION 375 OF THE INDIAN PENAL CODE
A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following seven descriptions:—
- Against her will.
- Without her consent.
- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
- With her consent, when, at the time of giving such a consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
- With or without her consent, when she is under sixteen years of age.
SECTION 376 PUNISHMENT FOR RAPE
(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine].
LANDMARK CASES OF RAPE
- TukaRam And Anr vs State of Maharashtra, (Mathura Case)
High Court appreciated the observation given by the learned Sessions Judge that there is a major difference between sexual intercourse and rape but they forgot to observe that there is a world of difference between “consent” and “passive submission”.
It was held that:
“Mere passive or helpless surrender of the body and its resignatess to the other’s lust induced by threats or fear cannot be equated with the desire or will, nor can furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition.”
- Vishaka vs. State of Rajasthan and Ors., (Bhanwari Devi Case)
Supreme Court held that the sexual harassment of a woman at a workplace would be violative of her fundamental rights of gender equality and right to life and liberty under Articles 14, 15, 19 and 21 of the Indian Constitution. The court concluded that such Act would be considered as a violation of women’s human rights.
- Mukesh & Anr. vs. State for NCT of Delhi & Ors.,
A Bench of Justices Dipak Mishra, R Banumathi, and Ashok Bhushan were unanimously passed the judgment of Death penalty to all the accused except juvenile. The juvenile who was equally involved in the incident and raped the woman was convicted and sentenced to three years in a reformation center.
- State of Maharashtra vs. Madhukar Narayan Mardikar,
Supreme Court opined that “even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.” Also, while deciding the cases of rape, past history of victim’s sex life does not matter, she is very much entitled to the protection of the law.
- Independent Thought vs. Union of India and Anr.,
The Court opined that the exception 2 in section 375 is violative of Articles 14, 15 and 21 of the Indian Constitution which allows intrusive sexual intercourse with a girl who is below 18 and above 15 years on the ground of marriage. Such exception clause in Indian rape laws negates the very purpose of Prohibition of Child Marriage Act, it violates the provisions of Protection of Children from Sexual Offences Act (POCSO). In this landmark verdict, Supreme Court has struck down section 375, exception 2 of the Indian Penal Code.
HOW PUNISHMENT MUST BE?
- Punishment in rape cases must not be vague but must be severe like it was in Nirbhaya’s case, the rarest of rare punishment, all rape victims must be served justice. Similarly all the accused must be punished for their criminal act in a severe manner.
- The more severe will be the punishment, the less will be the chances of happening crimes like rape in India.
VIOLATION OF RIGHT TO LIFE AND PERSONAL LIBERTY
- Rape is a violation of (the) victim’s fundamental right under Article 21 of the Constitution that is right to life and personal liberty.
Rape is a serious crime. They are the alarming calls for the society, government, media and judiciary. It is high time to amend the laws and improve them along with the emerging society. The deteriorated laws must be formulated.Rape is rape irrespective of race, religion, caste or age. Rape must be taken into account as a serious offence and so must be the punishment.
According to NCRB data, every 16 minutes a woman is raped in India and yet hardly any strict action is taken. There is a necessity of strictness in making and implementation of lawsfor crimes like rape in order to make India a better and safe place for women to live in or for now to survive in. Every victim must have right to seek justice. Justice must not be denied. Justice must be served and on time.
Subs. by Act 22 of 2018, s. 4, for “shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine” (w.e.f. 21-4-2018).
 1979 AIR 185, 1979 SCR (1) 810
Air 1997 Sc 3011
(2017) 3 SCC 719
AIR 1991 SC 207, (1991) 1 SCC 57
 (2017) 10 SCC 800
NAVTEJ SINGH JOHAR
UNION OF INDIA & Ors.
- The Supreme Court of India unanimously held that Section 377 of the Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex.
- The petition, filed by dancer Navtej Singh Johar, challenged Section 377 of the Penal Code on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination.
- India has acquired a place among the 28 countries of Asia to legalize homosexuality and to recognize LGBT rights.
- The Writ Petition has been filed on 27th April 2016 to challenge the constitutional validity of Section 377 of the Indian Penal Code, 1860 (“IPC”) on the specific ground that it criminalises consensual sexual intercourse between adult persons belonging to the same sex in private.
- The petition was filed by five members of the LGBT Community, dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and businesswomen Ayesha Kapur.
- In 2009 , in a case named NAZ FOUNDATION V. GOVERNMENT OF NCT OF DELHI , Delhi High court struck down section 377 of the IPC.
- The HC struck the section down observing that section clearly infringed the right to personal liberty , right to live with dignity and privacy of individual and also violative of Article 14 of the constitution.
- Then in 2013 , a petitioner Suresh Kumar Koushal challenged the decision of Delhi HC in the above case. The Supreme Court in this case , SURESH KUMAR KOUSHAL V. NAZ FOUNDATION AND ORS. Overruled the Delhi’s HC decision.
- The Supreme Court Reinstated section 377 based on the reasoning that only Parliament had the power to declare the section unconstitutional .
- Five individual from LGBT community , filed a writ petition before the Supreme Court , challenging constitutional validity of section 377 of the IPC and the decision of the two judges bench in the Suresh Koushal case.
- They challenged the section “punishing consenting adults having sexual intercourse and rendering it as an act against the order of nature .
- Whether Sec 377 of IPC is violative of Right to Equality under Art 14 of the constitution?
- Whether Sec 377 is violative of Freedom of Speech and Expression under Art 19 of the Constitution ?
- Whether Sec 377 is violative of Right to Life with dignity and privacy under Art 21 of the Constitution ?
- Whether discrimination based on sexual orientation under Sec 377 makes it violative of Art 15 of the Constitution ?
- Whether Sec 377 is arbitrary as it makes consensual relationship a crime on th ground of it being against the order of nature ?
Arguments in favour of Petitioners:
- Homosexuality, bisexuality and other sexual orientations are natural expression of choice. And making it a criminal offence is against individual dignity, right to reputation, right to shelter, decisional autonomy, right to choose a partner of one’s choice, sexual orientation and right to privacy under Art 21 of the Constitution ( SPuttaswamy and another v. Union of India and Others)
- Sec 377 is violative of Art 14 as the section is vague and does not define ‘carnal intercourse against the order of nature’. (Anuj Garg and others v. Hotel Association of India and others).
- Sec 377 is violative of Art 15 as there is discrimination on the basis of sex of the person’s sexual partner under Section 376(c) to (e).
- Sec 377 violates the right of the LGBT persons under Article 19(1)c, denies them the right to form associations and also a conviction under Sec 377 renders such persons ineligible for appointment as a director of a company.
- Fundamental rights are available to LGBT persons regardless of the fact that they constitute a minority.
- The judiciary is bound to disregard the social morality and uphold and protect constitutional morality ( Judgment in Naz Foundation and Manoj Narula v. Union Of India).
- Sec 377 is arbitrary as it makes consensual relationship a crime on the ground that it is against the order of nature (ShayaraBano v. Union of India and others).
- The decision in Suresh Koushal and another v. Naz Foundation and others. is per incuriam as it failed to take into consideration the amendment to Sec 375 IPC .
- Sec 377 also cripples their growth of personality, relation building endeavour to enter into live in relationships thus violating Art 19(1)a of the Constitution.
- The rights of LGBT (as recognized under the NALSA Judgment) are not fully realized because their expression of sexuality is not allowed to be expressed by criminalizing them under Sec 377.
Arguments in favour of the respondents:
- There is no personal liberty to abuse one‘s organs and that the offensive acts proscribed by Section 377 IPC are committed by abusing the organs.
- Section 377 IPC is not violative of Article 15 of the Constitution as the said Article prohibits discrimination on the grounds of only religion, race, caste, sex, place of birth or any of them but not sexual orientation.
- Section 377 IPC in its present form does not violate Article 14 of the Constitution as it merely defines a particular offence and its punishment and it is well within the power of the State to determine who should be regarded as a class for the purpose of a legislation.
- Fundamental rights are not absolute and there is no unreasonableness in Sec 377 .
- If Section 377 is struck down it would render the victims complaining of forced acts covered under the existing Section 377 IPC remediless .
- The offence under Sec 377 implies sexual perversity (Fazal Rab Choudhary v. State of Bihar)
- The interest of a citizen or a section of the society, howsoever important, is secondary to the interest of the country or community as a whole (State of Gujarat v. Mirzapur Moti KureshiKassabJamat and others ).
- If the prayers of the petitioners herein are allowed, it would amount to judicial legislation, for the Courts cannot add or delete words into a statute , therefore, the Courts cannot make such an artificial distinction (Sakshi v. Union of India and others).
- Decriminalization of Section 377 IPC will shamble the family system and detrimentally affect the institution of marriage.
- Persons indulging in unnatural sexual acts made punishable under Sec377 are more susceptible and vulnerable to HIV/AIDS .
The judgment was pronounced on 6th Sep, 2018. The judgments declared that insofar as Sec 377 criminalizes consensual acts of adults (i.e., persons above the age of 18 years who are competent to consent) in private, is violative of Art 14,15, 19 and 21 of the Constitution. It was however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion.
It was also stated that the reading down of Sec 377 shall not, lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters.
Finally the judgment has also taken a critical approach towards the Judgment in Suresh Koushal&Anr. v. Naz Foundation &Ors and has overruled the same.
The significant points considered in the judgment are as follows:
- Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy.
- The concept of constitutional morality strives and urges the organs of the State to maintain such a heterogeneous fibre in the society.
- It is not only the duty of the State and the Judiciary to protect this basic right to dignity, but the collective at large also owes a responsibility to respect one another’s dignity.
- The test of popular acceptance, in view of the majority opinion, was not at all a valid basis to disregard rights which have been conferred with the sanctity of constitutional protection.
- The observation made in Suresh Koushal case that gays, lesbians, bisexuals and transgender constitute a very minuscule part of the population is perverse due to the very reason that such an approach would be violative of the equality principle enshrined under Article 14 of the Constitution.
- Sec 377 IPC fails to make distinction between consensual and non consensual sexual acts between competent adults.
- The Court reinstated the recognition that ‘Homosexuality is not a mental disorder or mental illness’ under The Mental Healthcare Act,2017.
- The right to intimacy emanates from an individual’s prerogative to engage in sexual relations on their own terms.
- International human rights treaties and jurisprudence impose obligations upon States to protect all individuals from violations of their human rights, including on the basis of their sexual orientation.
- The Court also took into consideration the opinions and propositions of jurists globally like Bentham and concluded that such an act cannot constitute an offence.
- The judgment has taken a very reformative stand by declaring that the members of the LGBT community are entitled like all other citizens, to the full range of constitutional rights including the liberties protected by the constitution
- The judgment has also been successful to a very large extend in building confidence in the public that however small or trivial the number of members of a community may be, the judiciary of this country will stand for them and protect their rights.
- Moreover the judgment has taken forth the concept of Transformative Constitutionalism to a whole new level, which may pave the way for a number of amendments and reformation in the legal realm of the country bringing changes in consonance with those in the global society.
- However the judgment would have been more impressive if in addition to recognizing the sexual rights of the LGBT Community, it has also attempted to make suggestions or provisions for the social and economical inclusion.
A Creviced Ideology
They made her sigh, they made her cry; Three men on bike, had evils in their eyes.
When she was passing, they stopped her in the way; “Come here ITEM!”, was their say.
To protect herself, she ran like a hare; Ignoring the lusty, evil in their stare.
On reaching her home, she was at ease; Thinking that this was, a single day’s tease.
Next morning, a new sun rose; Towards her college, she hurried on toes.
Being afraid that morn, she changed her way; Still they reappeared, as four that day.
They hold her skirt, they hold her hand; Along a wall, they made her stand.
They said “Give us pleasure, or this will be your end!”; She lied down &, threw a fistful of sand.
She stood up &, ran without a pause; Told her mom that, she was in their claws.
Mom brought clothes & asked, to be differently dressed; Giving the logic that this would, avoid her molest.
Some intellects remarked that, it is because of girls’ small dress;
That everywhere and every now & then, they are being harassed.
They said that, girls are always at fault; This is the reason, why their freedom is at halt.
Next day she was covered, from head to toe; Those men came again &, said this won’t go.
They teased and insulted her, in front of crowd;
Said her to come with them or, they will wrap her in shroud.
Suddenly she was filled with, energy as that of thunder; She redeemed her hands &, cried out in wonder.
To all those present, she questioned in pain;
Is this the sole responsibility, of a girl to abstain?
She referred those boys, as total wimps;
Who ignore that without girls, they are just like gimps.
Few people forwarded, & rescued her; Everything was so quick, that situation was blur.
The whole incident, left a question for all; Is girls’ dress short, or men’s mentality small?
According to NCRB report, India recorded an average of 88 rape cases per day, in 2019, which has increased by 7% in 2020.
This is a common mentality of this society that it is the girl who provoke men and that this is all because of girls’ short dress. But is it so that a 40 years woman, wearing a saree, or a girl in burkha is not raped? It needs to be realized that it is not girls’ short dress rather it is because of men’s frivolous thinking.
Is woman not entitled to freedom? Don’t they have any right?
It is to be understood that women are humans too. It is not only a fundamental right but is also a basic human right of a woman to live freely and with dignity.
Women are not product of pleasure!
RESPECT WOMEN & TRY TO BE HUMAN!!
Speech on the Life of Dr. Bhim Rao Ambedkar
I Garima Agrawal, student of III Sem from RSLW is going to light up the life of a person “who tried to turn the wheel of law towards social justice for all” that is Dr. Bhim Rao Ambedkar.
Babasaheb Dr. Bhim Rao Ambedkar was born on 14 April, 1891 at Mhow, near Indore in the Madhya Pradesh. He was the 14th child of his parents. The life of Dr. Bhim Rao Ambedkar was marked by struggles buthe proved that every hurdle in life can be surmounted with talent and firm determination. The biggest barrier in his life was the caste system according to which the family he was born in was considered ‘untouchable’ .
In the year 1907, young Bhimrao passed the matriculation examination from Bombay University with flying colours . later in 1913 he graduated in Political Science and Economics from Bombay University. Around the same time his father passed away. Although he was going through a bad time , Bhim Rao decided to accept the opportunity to go to USA for further studies at Columbia University. Till now he had become that much of influencer that his thesis was published in a book titled as ‘The evolution of Provincial Finance in British India’.
After returning to India , Bhimrao fully engaged himself to fight against the social evils such as untouchability , Poverty, illtreatment with women and many more. For which he formed many organization prominently ‘outcastes welfare association’ , and ‘scheduled cast federation’ .
In 1947, when India became independent , Ambedkar became the first law minister of independent India. Not only this but he was also selected as the chairman of the Indian constitution drafting committee. And the work laid by him is too much strong that no one has been able to shake it even today, which justify his title as ‘The Father of Indian Constitution’.
Now I would like to conclude my speech by requesting that the very first dream of Baba Saheb Bhim Rao Ambedkar was equality. So this is now our duty to fulfill his dream considering it as our dream.
UNION OF INDIA (1978)
AIR 597, SCR (2) 621
- According to A. V. Dicey,
- ‘‘Personal liberty, as understood in English law, means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification.”
- In other words, ‘personal liberty’ means freedom from physical restraint and coercion which is not authorized by law.
- Article 21 of the Constitution says, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
- Maneka Gandhi’s case is not only a landmark case for the interpretation of Article 21 but it also gave an entirely new viewpoint to look at the Chapter III of the Constitution. Prior to Maneka Gandhi’s decision, Article 21 guaranteed the right to life and personal liberty only against the arbitrary action of the executive and not from the legislative action. Broadly speaking, what this case did was extend this protection against legislative action too.
- The petitioner (Maneka Gandhi) was issued a passport on June 1, 1976 under the Passport Act, 1967.
- On 4 July 1977, the petitioner received a letter from the Regional Passport Officer Delhi intimating to her that it was decided by the Government of India to impound her passport under sec. 10(3)(c) of the Act “in public interest”.
- The petitioner was required to surrender her passport within 7 days from the receipt of that letter.
- The petitioner immediately addressed a letter to the Regional Passport Officer requesting a copy of the statement about the reason for making the order as provided in sec.10(5).
- A reply was sent by the Government of India, Ministry of External Affairs on 6th July 1977 stating that the Government decided “in the interest of the general public” not to furnish her a copy of the statement of reasons for the making of the order. v Maneka Gandhi now filled a writ petition under Article 32 of the constitution of India challenging action of government in impounding her passport and declining to give reasons for doing so. She challenges sec. 10(3)(c) unconstitutional because it’s a violation of fundamental right under Article 14, 19(1).
- Is Section 10(3)(c) of the Passport Act 1967, violates the Article 14 of the Indian Constitution?
- Is Section 10(3)(c) of the Passport Act 1967, violates the Article 19(1)(a) or (g) of the Indian Constitution?
- Is Freedom of Speech and expression confined to the territory of India?
- Is the right to go abroad covered by article 19(a) or (g) of the Indian Constitution?
- Is the challenged order Constitutionally valid?
- To the extent to which Section 10(3)(c) of the Passports Act, 1967 authorizes the passport authority to impound a passport in the interests of the general public, it is violative of Article 14 of the Constitution since it confers vague and undefined power to the passport authority.
- Section 10(3)(c) is void as conferring an arbitrary power since it does not provide for an opportunity for the aggrieved party to be heard before the passport is impounded.
- Section 10(3)(c) is violative of Article 21 of the Constitution since it does not prescribe ‘procedure’ within the meaning of that article and the procedure practised is worst.
- Section 10(3)(c) is against Articles 19(1)(a) and 19(1)(g) since it permits restrictions to be imposed on the rights guaranteed by these articles even though such restrictions cannot be imposed under Articles 19(2) and 19(6).
- A new doctrine of Post decisional theory was evolved.
- It was held that section 10(3)(c) confers vague and undefined power of the Passport Authority to impound a passport and hence it is violative of the equality clause contained in Article 14.
- Moreover, it was said that when the order impounding a passport is made by the Central Government, there is no appeal or revision provided by the Statute and the decision of the Central Government that it is in public interest to impound a passport is final and conclusive. The discretion vested in the Passport Authority, and particularly in the Central Government, is thus unregulated and unrestricted and this is plainly in violation of Article 14.
- The right, which is sought to be restricted by Section 10(3)(c) and the order, is the right to go abroad and that is not named as a fundamental right.
- But the argument of the petitioner was that the right to go abroad is an integral part of the freedom of speech and expression and whenever State action, be it law or executive fiat, restricts or interferes with the right to go abroad, it necessarily involves curtailment of freedom of speech and expression.
- Respondent argues the right to go abroad could not possibly be comprehended within freedom of speech and expression, because the right of free speech and expression guaranteed under Article 19(1)(a) was exercisable only within the territory of India and the guarantee of its exercise did not extend outside the country and hence State action restricting or preventing exercises of the right to go abroad could not be said to be violative of freedom of speech and expression.
- It is true that the Passport Act does not provide for giving reasonable opportunity to the holder of the passport to be heard in advance before impounding a passport. But that is not conclusive of the question.
- If the statute make itself clear on this point, then no more question arises but even when statute is silent the law may in a given case make an implication and apply the principle. Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action.
- These rights were conceived by the Constitution makers not in a narrow limited since but in their widest sweep, for the aim and objective was to build a new social order where man will not be a mere plaything in the hands of the
- State or a few privileged persons but there will be full scope and opportunity for him to achieve the maximum development of his personality and the dignity of the individual will be fully assured.
- The case is considered a landmark case as it gave a new and highly varied interpretation to the meaning of ‘life and personal liberty’ under Article 21 of the Constitution. Also, it expanded the horizons of freedom of speech and expression to the effect that the right is no longer restricted by the territorial boundaries of the country. In fact, it extends almost to the entire world.
- In this case, the Hon’ble court interpreted different Articles of the Constitution very brilliantly. But the post decisional doctrine theory, given in this case is not right according to me as people should’ve been provided with the chance to defend themself, before the action. And in this case, the petitioner should’ve been compensated.
- Thus, the case saw a high degree of judicial activism, and ushered in a new era of expanding horizons of fundamental rights in general, and Article 21 in particular.
- This case is called as golden triangle case where Article 14, 19 and 21 were challenged together and it was appreciated by the apex court.
Armed Forces And Their Fundamental Rights Under Indian Constitution
By the very nature of Fundamental Rights in Indian Constitution, we can observe that they try to create an invisible force on the citizens (non-citizens in some cases) restricting them to ‘what not to do’. It is evident and much argued that as they are commonly addressed as ‘negative rights’, it forces people to act in a certain manner. In a way, that should only be the whole purpose of law of the country. Surprisingly, there are some selected groups of people among the Indian population who are not governed by the rights mentioned under Part III of the Constitution, rather they have their own separate set of protocols. They are the members of the defense forces of India which specifically include members of Armed Forces, Para-Military Forces, Police Forces, members charged with maintenance of public order, employees of Intelligence Bureaus and employees working in connection with telecommunication systems working for any forces.
The members of such forces are no doubt, are public servants but they constitute as an entirely different class of people all together. Article 33 & 34 of the Constitution of India, elaborates separate rights for Armed Forces and such other forces. They specifically mention that Parliament has power to modify the rights of servants working in these forces. The main aim of these provisions is to ensure the proper discharge of their duties and the maintenance of discipline among them. This is because of the very nature of work they are required to do, which includes mostly protection of civilians from external or internal threats or in some cases rescue missions during natural disasters. So, in order to keep them different from the common citizens of India, they have different protocols and laws being enacted by the Parliament.
The code of conduct is to bind them to respect the sanctity of their profession with discipline and integrity. But there have been a lot of cases questioning the number of restrictions which are being put on them on the ground that in some situations the servants are unable to make a balance between individual interest and state’s interest. In some scenarios they are required to abandon their personal and social lives for the protection of their country. Also, it is difficult to ascertain that how far government is extending their help to fulfill the needs of these servants on daily basis. Are they given proper emoluments? While they are at country’s security borders, are they provided with safeguard measures from the government? How safe do their families feel when they are away from home? Or unfortunately, if any of the soldier sacrifices his/her life while fighting on the borders, does the family get the adequate compensation? These are some of the questions which are often debated because these services are considered to be the toughest of all requiring maximum dedication of an individual. So looking at all these problems being faced by them, are these restrictions justified enough?
Various Laws and system of Court Martial:
We now need to understand the laws which are enacted by Parliament which keep track of preservation of code of conduct of the officials in various forces as they are being tried in Armed Forces Tribunal (AFT) or Military Tribunals by following those enactments only. The Police Forces (Restriction of Rights) Act, 1966 restricts police forces to join any trade union, labour union or any political association. The officials are prohibited to be a part of any social, political or religious meeting. They are even prohibited to publish their opinion in the form of any article or paper at any platform. Same abrogations are being put up by Army Act, 1950 and Intelligence Organizations (Restriction of Rights) Act, 1985. The violation of provisions under them is considered to be cognizable offences. Since, all these special laws have been put for charging and abrogating all officials, which is why the employees of Armed Forces are immune from getting arrested under Section 45 of CrPC, 1973 but this is subject to decision of central government.
It’s not a matter of chance once but it has been observed many times that government servants who are being covered under Article 33 have revolted against the provision to be against the basic fundamental right mentioned under Article 21. The Supreme Court have constantly been stuck on the point that the Parliament has full veto in making any law for the Armed Forces whether it is restricting them from doing something or permitting.
The Military Tribunals are excluded from the appellate jurisdiction of the Supreme Court and also from power of superintendence of High Court under Article 227. But in some rare cases, the appeals have been allowed which come from writ petition filed in High Courts. These tribunals cannot be compared to the strict sense of ordinary courts and procedures though Indian Evidence Act, 1872 is applicable. It is more like a committee of officers to advice the accused officer so as to what obligations he/she has towards the post they hold.
Restriction on civilians under Article 34:
This provision gives power to the Armed Forces to confer their power of peace keeping in any particular area of the country. The requirement of ‘rule of martial law’ is said to be required in any part of the country where there is state of war, insurrection or rebellion situation. The Military forces are permitted to use their power in order to calm the breach of peace but only to the extent of that breach only, not beyond that. This situation should not be confused with that of emergency. Emergency is a mere threat of war, external aggression or armed rebellion and concerned with security of entire nation. On the other hand, martial law sprouts from a ‘necessity’ of such force in any part of the country.
Various laws have been enacted which give power to the Armed Forces, such as The Armed Forces (Assam and Manipur) Special Powers Act, 1958 which was enacted to look after the disturbed areas of a few north-eastern states. The Disturbed Area (Special Courts) Amendment Act, 1983 was enacted to establish special courts to resolve disputes in ‘disturbed areas’ as declared by central government.
The contribution of defense forces and various other forces are commendable and deserve appreciation. But in India, their efforts are not recognized enough. Periodically, Pulwama and Uri attacks are happening in State of Jammu & Kashmir. Hence, there is a serious need to uplift the protection conditions for our brothers at the borders. It is unfortunate that they are living in a constant fight with enemy countries as well as their own government. It is high time Parliament should enact laws for betterment in protection, living conditions, health and emoluments of the employees of forces as well as their families. Even after facing all the hardships, they stand strong as a wall and every citizen of India salutes them for their courage and will continue to do so!
INDIA CONST. Art. 33 ‘Power of Parliament to modify the rights conferred by this Part in their application to Forces etc.’ & Art. 34 ‘Restriction on rights conferred by this Part while martial law is in force in any area’.
 Mohammed Zubair v. Union Of India, (2017) 2 SCC 115.
 Delhi Police Non-Gazetted Karamchari Sangh v. Union Of India, AIR 1987 SC 379.
 Code of Criminal Procedure, 1973 (Act 2 of 1974), Sec. 45 ‘Protection of Members of the Armed Forces from arrest’.
 Prithi Pal Singh Bedi v. Union of India, AIR 1982 SC 1413.
Gender Discrimination in Education and Economic Development
Dr. Vartika Arora
Gender inequality is an acute and persistent problem, especially in developing countries. We model gender discrimination as the complete exclusion of females from the labor market or as the exclusion of females from managerial positions. It is found gender discrimination lower economic growth; and it also implies a reduction in per capita GDP.
The sustainability of social norms or stigma that can generate discrimination such as “Woman’s participation in employment outside the home is viewed as inappropriate, subtly wrong, and definitely dangerous to their chastity and womanly virtue. When a family recovers from an economic crisis or attempts to improve its status, women may be kept at home as a demonstration of the family’s morality and as a symbol of its financial security. “Well-off and better-educated families may send their daughters to school, but are able to afford the cultural practice of keeping women at home after schooling is complete.”
Gender discrimination against women in the market place reduces the available talent available in the society which has the great negative impact upon the economy. These social practices may have profound economic consequences because they do not allow society to take advantage of the talent inherent in women. Gender discrimination takes in many forms. Many social practices seen as normal from a religious or cultural point of view leave women out of the economic mainstream.
There is one wrong perception that women can only engage in home production. Home production productivity is lower than that of production outside the home. In particular, the reason that gender discrimination in either managerial positions only or the overall labor market persists may be the existence of substantial transaction costs in marital bargaining, as is argued
There are multiple and diverse links between gender equality and the fulfillment of the human right to education. The pervasive denial of the human right to education experienced by women and girls across the globe – as shown, for example, by the fact that two thirds of the world’s non-literate adults are women – is a striking example of gender discrimination. Education is an enabling and transformative right. As pointed out by the Committee on Economic, Social and Cultural Rights (CESCR), the right to education “has been variously classified as an economic right, a social right and a cultural right. It is also a civil right and a political right, since it is central to the full and effective realization of those rights as well. In this respect, the right to education epitomizes the indivisibility and interdependence of all human rights”. A strong education system, in line with the principle of non-discrimination, is key for redressing gender injustice in wider society, and for overcoming social and cultural norms that discriminate against girls and women.
Gender inequality is curse to the society development. The path of development go through the practical adherence of equality and elimination of any type of gender discrimination. Our constitution provides the fundamental right of equality of law and equal protection of law. Gender inequality cannot be eradicated by law it can only be eradicated when each and every person of the society change its perception and realize the potential of the other gender.
Marriage is considered as a pious relationship in society. Marriage solemnized by taking seven steps around fire is considered as a valid marriage in society and under law. There are rules in some states of registration of marriage within prescribed days by law.
There are so many customs in marriage in India which can be legal or illegal.One of the examples of illegal custom is dowry. Demand for Dowry becomes the most trending way to harass a married woman. There are also certain other ways for harassing.
There are certain laws provided for the protection of the rights of a woman such as Domestic Violence Act, 2005, Indian Penal code, Dowry Prohibition Act, 1961 etc. The Indian laws give certain rights to a married woman to speak for herself and take action against injustice that she has suffered or seen suffering someone in her relatives or known.
These are the certain legal Rights :
- Right to stay in a matrimonial home even after the spouse’s death or until she gets another home to move in. It is immaterial whether the house was owned by her husband or not. It was held by a three-judge bench of Justices Ashok Bhushan, R Subhash Reddy and M R Shah by overruling the judgement of 2006 given under the case of SR Batra Vs. Tarun Batra.
- Right to property after the amendment in 2005 of the Hindu Succession Act, 1956, given to daughter as son , her status of married is immaterial against this right.
- Right to divorce under section 13 of Hindu Marriage Act, 1955.
- Right to claim stridhan under Section 14 of Hindu Succession Act, 1956 and Section 27 of Hindu Marriage Act, 1955 .
- Right to abortion under the Medical Termination of Pregnancy Act, 1971.
- Right to Child’s custody , In the case where a child is of five years of age or below from it then a mother has a right to her child’s custody.
- Right to complaint against dowry and harassment due to it under Section 498-A , 304 B of IPC etc.
- Right to complaint against domestic violence under Section 19 A of Domestic Violence Act, 2005 etc.
As we have seen above there are certain rights and laws given under our Indian laws for protection of such rights but lack of awareness and belief in the law victim takes steps away from getting justice. It is also correct to say that in today’s time money can buy law because corruption has influence in every system whether it’s law or politics.