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Monday, December 23, 2024

Another Example of Justice Delayed

Every time a news story about rape or sexual harassment comes out, we ask: Are women safe in India? People take out candle marches and demand stricter punishments for those guilty. Some laws have been changed to make things better, but are they really working? The simple answer is no. The laws are good enough, but the way they are applied is not.

A case that shows this clearly is State of Maharashtra vs. Pradeep Yashwant Kokade. It talks about how delays in carrying out a death sentence affect justice in India.

The Case Details

The victim was a young woman who worked as an associate in a company. Her job required her to work night shifts. On November 1, 2007, she was supposed to be picked up from her home by a cab. The cab driver, one of the convicts, came to pick her up with another man, who was her co-worker. Instead of taking her to work, they raped and murdered her. Her body was found the next day, showing signs of terrible violence.

Both men were arrested and charged with murder (Section 302 IPC), gang rape (Section 376(2)(g) IPC), and criminal conspiracy (Section 120-B IPC). In 2012, a court in Pune sentenced them to death. The High Court and Supreme Court confirmed this decision. But even after the death sentence, there were long delays in carrying it out. These delays showed how slow and ineffective the system can be.

The Delays in Justice

This case had delays in three main areas:

  1. Mercy Petitions: The convicts asked the Governor of Maharashtra and later the President of India for mercy. It took years for these petitions to be rejected because of slow administrative work.

  2. Government Work: Even after the mercy petitions were rejected, it took a long time to issue the warrants for their execution. Letters went back and forth between offices, but nothing moved quickly.

  3. Court Action: The Sessions Court took over 600 days to issue the execution warrants after the mercy petitions were rejected. This was another example of inordinate delay.

Affect of the Delay

The Supreme Court decided to change the death sentence to life imprisonment for 35 years without parole. They said that the long delays violated the convicts’ basic rights under Article 21 of the Constitution. While this decision was fair to the convicts, it raises questions about why the system allowed these delays in the first place. Supreme Court cannot be said to be in fault here as there were delays from the side of the Government. This case is of the year 2007 and it took us 17 years to reach the finality of the justice.

Are women safer in India even with strong laws? The sad truth is no. The laws are there, but they are not enforced properly. Delays in investigations, court cases, and punishments make criminals think they can get away with their crimes. Now add all these factors to slow and unempathetic bureaucracy in India which is slow, incompetent and lacks intent to do any work properly.

What Needs to Change

To make women safer, we need to:

  1. Fix the System: Speed up investigations, court cases, and punishments by improving processes and ensuring better teamwork among government agencies.

  2. Hold Authorities Accountable: Make sure officials who delay justice face consequences.



Monday, November 18, 2024

Thoughts on "Bulldozer Justice"

Bulldozer Justice in India

Background

This issue originates from incidents in Uttar Pradesh, where the state government demolished houses of individuals accused of rioting. Some hailed this move as a significant step in law enforcement, while others criticized it, arguing that it infringed on individual liberties. Numerous writ petitions were filed against this practice, but "Bulldozer Justice" persisted, particularly in BJP-ruled states. Recently, the Supreme Court has declared such acts illegal, which has sparked widespread discussion.

The Conflict of Morality and Law

Everyone knows that such demolitions were illegal from the start, but the situation was clouded by a moral debate: the rights of rioters versus the rights of law-abiding citizens. It's basic legal knowledge that punishments not prescribed by law cannot be enforced. So why did the Uttar Pradesh government resort to bulldozing houses? The answer is simple—they wanted to instill fear in rioters, ensuring they wouldn’t riot again.

Riots are detrimental and have no place in a civilized society. However, addressing the issue effectively requires better policing, advanced riot control equipment, competent public prosecutors, and trained police personnel who can gather evidence to help courts deliver justice. Bulldozing houses is just a shortcut.

Punishment Through Process

In my opinion, the state governments always knew this act of bulldozing houses was illegal and would be challenged in court. However, demolishing a house in itself serves as a punishment. While courts may criticize public officers for such actions, they rarely face serious consequences, making this an easy way to punish without undertaking the hard work of improving policing in the state.

The Problem with Bulldozer Justice

A case from Madhya Pradesh comes to mind where a tribal man was degraded by an upper-caste man, and the latter’s house was bulldozed. Caste-related atrocities must be dealt with strongly, but in this case, the man was charged under the National Security Act, and his house was demolished as well. What wrong did his parents do to deserve their house being bulldozed? Even the community, traditionally supportive of the BJP, protested against this move by the BJP government. This is a clear example of how opening such floodgates can eventually affect everyone indiscriminately.

Excessive Bureaucracy and Misuse of Power

India suffers from excessive bureaucracy, and this is precisely why even simple actions often lead to the persecution of citizens. State leaders praised for such actions unintentionally encourage bureaucrats to view these shortcuts as paths to promotions, blindly supporting the state. In states where Bulldozer Justice prevails, even a minor disagreement with an IAS or IPS officer can result in threats of house demolition. This creates unnecessary fear among citizens and makes public offices even more unapproachable.

Personal Opinion

Bulldozing someone’s house is not justice, and I am not writing this to sympathize with rioters. Rioters should face strict punishment because riots, especially in polarized states, lead to loss of human lives. However, demolishing houses is akin to using a bucket to remove water from a sinking boat instead of repairing the hole causing the boat to sink in the first place.

Police should be equipped with cameras, riot control gear, and proper training to handle such situations. Technology must be utilized to identify rioters, and public prosecutors should streamline cases to assist courts. Excessive force in unnecessary situations only alienates citizens and makes the government less approachable.

Monday, November 11, 2024

Lawyers vs Police


Every year, there are certain issues that repeatedly capture headlines in India with almost predictable certainty—pollution in Delhi, high-profile criminal cases, and, inevitably, clashes between lawyers and police. While efforts to address pollution and crime is an issue in itself, this blog will focus on the feud between lawyers and the police.

The unfortunate pattern of conflict between the two groups follows a familiar cycle. A confrontation starts with an altercation between an individual policeman and a lawyer, then escalating as videos surface with claims of oppression from both sides. Soon, unions and associations get involved in strikes and demonstrations. Despite being a recurring issue for years, little seems to have been done to resolve or prevent these confrontations. Why does this pattern persist?

Understanding the Root Cause: Feudalism in Indian Society

Both police and lawyers accuse each other of behaving dictatorially. However, the root of these conflicts lies deeper—in the feudalistic nature of Indian society. Indian society is deeply influenced by a hierarchical mindset that is ingrained so thoroughly that it often goes unnoticed.

In India, respect and authority are hierarchically assigned not just within organizations but among professions as well. For instance, engineers—despite having specialized qualifications and decent pay—often do not enjoy the same societal respect as a police constable, who is seen as holding a “higher” position within society's invisible hierarchy. This mentality is evident in how people perceive blue-collar workers, often regarding them as lower in the social order, irrespective of their contributions.

However, in this rigid hierarchy, the position of lawyers is somewhat ambiguous. Lawyers are well-versed in the law and have privileged access to the courts, yet the general public seems to fear the police more than they respect the law profession. This fosters a sense of insecurity among lawyers subconsciously, who may feel that their authority should exceed that of the police. Conversely, the police, who often treat civilians with disdain, extend this dismissive attitude toward lawyers as well. Together, these attitudes create a recipe for conflicts. When political interests get involved, the situation becomes even more explosive.

Analyzing the Cyclic Conflict

With each lawyer-police confrontation, the pattern is predictable, but the outcome rarely brings any meaningful change. Lawyers, if genuinely concerned with the police’s mistreatment of civilians, have the option of seeking judicial remedies. Indeed, some individual lawyers actively challenge police actions in court and seek justice for the people. However, the general response from the legal community often takes the form of violent protests and strikes when one of their own is involved in a conflict with the police.

Such reactions not only disrupt the judicial system but also detract from efforts to achieve meaningful reform. This repetitive cycle of confrontations, strikes, and temporary escalations ultimately yields no lasting resolutions.

Personal Opinion

As a citizen and a professional, I find it difficult to support this recurring dispute between lawyers and police. While each profession plays a vital role in society, their clashes are unproductive and ultimately harmful. Unnecessary strikes delay court proceedings and exacerbate an already overburdened judicial backlog. These battles mirror childish “us vs. them” arguments that one might expect in a schoolyard, rather than in institutions responsible for upholding law and order.

Seventy-seven years into India’s existence as a republic, it is perhaps time to outgrow such divisive conflicts. Both lawyers and police need to recognize the futility of these confrontations and acknowledge their shared role in serving society. Hopefully, with time and maturity, India will rise above these petty feuds to focus on more constructive paths forward. 

Sunday, November 10, 2024

Analysing the Supreme Court’s Verdict on Child Marriage: New Guidelines on Implementation of PCMA

 The recent judgment of the Supreme Court in the case of Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors provides new guidelines to prevent Child Marriages in India. Under Article 32 of the Constitution, this petition highlighted the persistent difficulties in eliminating child marriage, despite various legal frameworks such as the Prohibition of Child Marriage Act (PCMA) of 2006. The NGO, which is actively involved in battling child marriage, submitted a petition highlighting systemic failures, especially in terms of enforcement and awareness efforts.


The decision from the Hon’ble Chief Justice D.Y. Chandrachud examines both the socio-legal consequences of child marriage and the socio-economic factors like poverty, gender inequality, and lack of education that sustain this tradition. In addition to the previous mechanisms to solve the problem, Supreme Court this time emphasizes the role of technology to erase the problem of child marriages.  The verdict also criticizes the inefficient enforcement of legal structures designed to prevent child marriage, highlighting the shortcomings of government agencies and the restrictions of existing legislation.

Laws and Child Marriage in India

The main purpose of the PCMA is to outlaw child marriages and impose penalties on those who participate in conducting these marriages. Child marriage is described as a marriage in which one of the parties involved is under the age of 18 for girls and 21 for boys. Even with these laws in place, the prevalence of child marriage has revealed deficiencies in their implementation.

The judgement explains how child marriage continues to exist despite these structures. For example, the court examines the significance of Child Marriage Prohibition Officers (CMPOs) and how their duties as outlined in Section 16 of the PCMA are diminished by being assigned various other tasks, hindering their ability to effectively prevent child marriages. The court notes that in numerous states, CMPOs have been appointed, but their effectiveness in preventing child marriages is reduced due to additional responsibilities.

The court examines information from the National Family Health Survey (NFHS) that demonstrates a gradual decrease in child marriage rates, but stresses that advancements are still not satisfactory. In NFHS-5 (2019-2021), it was reported that approximately 23.3% of females below 18 years were wed, slightly lower than the 26.8% documented in NFHS-4 (2015-2016). Although child marriage has decreased, it is still a major concern, especially in rural regions.

Factors related to Society, Economy, and Culture

This judgement acknowledges the social and economic circumstances that contribute to child marriage, such as poverty, cultural traditions, and limited educational opportunities. In many rural and impoverished communities, it is commonly believed that marrying off a young girl is necessary for financial reasons, as recognized by the court. Getting married at a young age is seen to lessen the financial strain on families, especially when considering dowries and the expenses of bringing up children. Moreover, traditional beliefs that prioritize a girl's purity and reputation still compel families to arrange marriages for their daughters early on, out of fear of societal judgment if the girl remains single for too long.

The judgment highlights that child marriages disproportionately impact girls, restricting their access to education and employment, leading to ongoing cycles of poverty and reliance. The court's examination underscores that child marriages also heighten the chances of maternal and infant deaths, as young brides are not physically ready for pregnancy and giving birth.

 

Global Responsibilities Regarding Human Rights

The court places India's efforts to combat child marriage within the broader context of global human rights. It refers to global responsibilities, such as CEDAW and the Convention on the Rights of the Child, which acknowledge child marriage as a breach of human rights. The ruling highlights that child marriage is not just a breach of personal rights but also a wider societal problem that restricts social and economic progress. The discussion is guided by the United Nations’ Sustainable Development Goals, specifically Goal 5.3, which targets the eradication of child, early, and forced marriages, underscoring the urgency for quicker advancements in meeting these worldwide pledges.

 

Judicial Recommendations and Way Forward

Supreme Court provides the guidelines for improving the enforcement of anti-child marriage laws. The court recommends:

  1. Strengthening the role of CMPOs: The judgment calls for CMPOs to be relieved of their additional duties, allowing them to focus exclusively on preventing child marriages and acting against offenders.
  2. Increased Awareness Campaigns: The court stresses the importance of public awareness campaigns, particularly in rural and marginalized communities, to educate families on the harms of child marriage and the legal consequences.
  3. Community Involvement: The judgment suggests involving local community leaders and NGOs in the fight against child marriage. Community-based initiatives, including financial incentives and educational programs for girls, should be expanded.
  4. Use of Technology: The court also recognizes the potential of technology-driven initiatives for reporting child marriages, suggesting that government bodies use digital platforms to enable easier reporting and monitoring of such incidents.

Legal consequences

Although the judgement represents progress, it highlights the constraints of the legal system and the sluggishness of the reform process. The court recognizes the strong cultural and social elements that hinder efforts to end child marriage, but emphasizes that this should not be a reason for lenient enforcement. The court's recognition of the complexities involved is shown in its focus on various solutions such as legal, social, and economic measures.

One criticism is that the judgment outlines a plan to tackle child marriage but puts most of the responsibility on government authorities, who have a track record of being slow to act, to solve this problem we must have to get help from civil societies otherwise instead of solving the problem, we will have more writs in the Supreme Court. A major worry is the absence of accountability measures for officials who do not uphold the law. Additionally, the consequences for individuals participating in child marriages, as specified in the PCMA, are not adequately upheld, resulting in decreased rates of conviction.

Summary

The above article analyses the new guidelines given by the Supreme Court of India regarding the proper implementation of PCMA.

Saturday, October 19, 2024

Arrested Because Vegetable Seller Wouldn't Give Free Cucumbers to the Police Constable

I recently came across an interesting case that, while not recent, sheds light on the times shortly after India gained independence. This is the 1949 Allahabad High Court judgment in the case of Rex vs Ram Dayal. The facts of this case are both amusing and tragic, as it shows the colonial influence on India’s civil services and police system. In 1949, India was just emerging from British rule but was still grappling with the remnants of colonial laws and practices. The police, in particular, were known for their brutality, so much so that people would flee at the sight of a constable. This fear persisted well into the 1960s, but change slowly came as courts began to strike down colonial-era provisions.

However, even today, we haven't entirely shaken off the colonial legacy. For instance, archaic and invasive procedures like the "two-finger test" were only outlawed recently. There are still many outdated rules that have no place in a civilized society.

Facts of the Case

The case centers on a vegetable vendor in Agra, who frequently encountered Constable Tota Ram while selling his vegetables. The constable, exercising his authority, would regularly demand free vegetables, and the vendor, out of fear, would comply. Tota Ram threatened to throw the vendor into “hawalat” (lockup) if he refused. Eventually, the vendor had enough and refused to give Tota Ram any free cucumbers. True to his word, the constable arrested the vendor and threw him into lockup.

The Magistrate who presided over the case was sympathetic to the vendor’s plight. Not only did he discharge the vendor, but he also took the opportunity to critique the legislation itself. However, his choice of words, such as “I detest” and “I reject,” in his written judgment was seen as overly harsh and did not sit well with law enforcement or the state. The state subsequently filed a revision petition against the Magistrate's discharge order​.

The Trial

During the trial, the Attorney General argued that the vendor’s arrest was lawful under Section 109 of the erstwhile Criminal Procedure Code (CrPC). This section allowed the arrest of individuals for: (1) concealing their presence, (2) lacking ostensible means of livelihood, or (3) failing to give a satisfactory account of themselves. The Magistrate, however, felt that the law was outdated and oppressive. He questioned the necessity of arresting someone simply because they didn’t provide a reason for their presence or their livelihood.

While the Court upheld the discharge, it did not agree with the reasoning offered by the Magistrate. Instead, the Court maintained that while the Magistrate had legitimate concerns about the legislation, his approach and harsh language were inappropriate for a legal judgment​.

Takeaway

The most striking takeaway from this case is what it reveals about the post-colonial era in India. Imagine being arrested simply for refusing to give a cucumber to a constable in a country plagued by poverty, where people could barely make ends meet. Worse still, the state's priority seemed to be the tone of the Magistrate's judgment rather than addressing the injustice faced by the vendor.

The Magistrate, who would likely have appreciated the present-day legal landscape in India, spoke out against Section 109 of the erstwhile CrPC, which has since been amended to remove many of its more draconian provisions. Today, the CrPC itself has been replaced.

Indian cinema often depicts the police casually using their lathis (batons) on working-class individuals, treating it as comic relief. This reflects just how normalized police brutality has become in India. However, it is high time we trained our police force to not only be effective in curbing crime but also to be sensitive and approachable for the common man.

The Supreme Court, in various judgments, has called out many outdated and excessively harsh laws that are used to punish the accused. But it is the responsibility of the state to enact these reforms. Until then, we can only hope that people are spared from unnecessary police brutality.


Wednesday, October 2, 2024

The Cobra Effect: Unintended Consequences of Problem-Solving in India

Many years ago, I heard of a phenomenon called the Cobra Effect. It refers to situations where an attempt to solve a problem actually worsens it. This effect got its name from an actual incident that occurred in India during British rule. The story goes that when the British were establishing the new capital of India in New Delhi, they discovered the area was infested with venomous snakes, the most common being cobras.

To address the issue, the British came up with a plan: anyone who brought the tail of a dead cobra would be rewarded. They believed that if people killed the cobras, the problem would be solved. However, the actual outcome was quite the opposite. People started cutting off the tails and releasing the cobras back into the wild. Some even began breeding cobras to claim the rewards. When the British realized what was happening, they canceled the scheme. Since the cobras were now worthless, people released them back into the wild, worsening the problem.

I used to laugh at the British for their foolishness in this plan, but little did I know that in India, it's impossible to predict how people will behave or react to such initiatives.

I witnessed a modern-day Cobra Effect in my own locality after an incident of a dog bite. Typically, the solution in such cases would be effective control of the stray dog population. However, our Commanding Officer had a "unique idea." He issued an order stating that the elderly must carry a stick whenever they went outside, and children must always be accompanied by adults. Strangely, the order made no mention of adults, as the officer seemingly assumed they were immune to dog bites.

So, what was the outcome of this? The elderly, who already used sticks due to old age, continued to do so, but if a dog were to attack, they would still be defenseless. Parents, in turn, restricted their children from playing outside. Meanwhile, adults went about their daily routines as usual, and dog bites continued to occur.

Dog bites are extremely common in India, and civic authorities do very little to address the issue. If you are bitten, you are often blamed. India has the highest number of rabies deaths in the world, and yet, no significant action has been taken.

Dog bites in India

The above report shoes the situation in an Air Force Campus, supposedly one of the elite areas in the city. Imagine the chaos outside.

Monday, September 9, 2024

Determining Liability in a Cheque Bounce Cases

In cheque bounce cases, one of the recurring issues is determining the liability of the defaulter. Consider the following scenario:

There are two parties involved—Party A and Party X. Both parties wish to engage in business, and to that end, they enter into a contract. According to the terms of the contract, Party X is required to pay a specific sum of money to Party A. To fulfill this obligation, Party X issues a cheque, but the cheque is dishonored due to insufficient funds.

The twist in this scenario is that the contract was entered into by the husband, who represents Party X, but the cheque was signed and issued by the wife, making her the drawer of the cheque.

The question here is: Who bears the liability in this case? Is it the husband, with whom the contract was made, or the wife, who issued the cheque?

For that issue we have to delve into a little bit of Jurisprudence.

Jurisprudence on the Matter

The jurisprudence regarding cheque bounce cases indicates that such matters are treated as criminal offenses under Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act). Given that it is a criminal offense, the concept of vicarious liability does not typically apply. In simple terms, no one can be held liable for an act committed by another unless specifically provided for by law. Therefore, the drawer of the cheque is prima facie liable for its dishonor.

Conflict Between Section 138 and Section 141 of the N.I. Act

The case Aparna A. Shah vs. M/s Sheth Developers Pvt. Ltd. & Anr.  specifically dealt with this issue. To properly understand the nuances, it is essential to examine the interaction between Section 138 and Section 141 of the N.I. Act.

Section 138 of the Negotiable Instruments Act, 1881

Section 138 defines the offense of dishonor of cheques due to insufficiency of funds or other reasons and imposes criminal liability on the drawer. The key elements of this provision are:

  1. The cheque must be drawn on an account maintained by the drawer.
  2. The cheque must be issued to discharge a legally enforceable debt or liability.
  3. The cheque is dishonored due to insufficient funds or because the amount exceeds the arrangement made with the bank.
  4. A notice demanding payment must be sent to the drawer within 30 days of the dishonor.
  5. The drawer has 15 days from the receipt of the notice to make the payment.

If these conditions are met, the drawer of the cheque is liable for prosecution under Section 138, with punishments including imprisonment for up to two years, a fine up to twice the cheque amount, or both.

Section 141 of the Negotiable Instruments Act, 1881

Section 141 extends liability for offenses under Section 138 to companies and their officers responsible for the conduct of the business. The provision clarifies that, in the case of a company, both the company and any person in charge of its affairs at the time the offense was committed are deemed guilty and liable for prosecution.

However, the question arises whether this provision can be extended to joint account holders who did not sign the cheque but were part of the account from which the dishonored cheque was issued.

The Supreme Court’s Ruling in Aparna A. Shah vs. M/s Sheth Developers Pvt. Ltd. & Anr.

In its judgment, the Supreme Court, led by Justice P. Sathasivam, made several key observations on the applicability of Section 138 in cases involving joint accounts:

1. Strict Interpretation of Penal Laws:

The Court emphasized that criminal liability under Section 138 can only be fastened to the drawer of the cheque. The provision must be strictly construed, meaning that liability cannot be extended to a non-drawer, even if they are a joint account holder.

2. Non-Applicability of Vicarious Liability:

Vicarious liability, as provided under Section 141 of the N.I. Act, applies only in cases involving companies and their officers. It cannot be applied to joint account holders under Section 138 unless the person is a signatory to the cheque. In essence, criminal liability cannot be imposed on a person for the actions of another unless explicitly provided for by law.

3. Prosecution of Non-Signatories:

The Court held that in cases where cheques are issued from a joint account, only the person who signed the cheque can be prosecuted under Section 138. This means that even if Aparna was a joint account holder, since she did not sign the cheque, she could not be prosecuted.

4. Judicial Precedents:

The Court referred to previous decisions, including Jugesh Sehgal vs. Shamsher Singh Gogi and S.K. Alagh vs. State of Uttar Pradesh, which reiterated that only the drawer of a cheque can be held liable under Section 138. These cases reinforced the principle that criminal liability under the N.I. Act is strictly confined to the drawer of the cheque.

5. Rejection of the Argument on Association of Individuals:

The respondents in the case argued that Aparna and her husband should be treated as an "association of individuals" under Section 141 of the N.I. Act, thereby making Aparna liable. However, the Court rejected this argument, clarifying that the term "association of individuals" as used in Section 141 applies only to companies or firms and not to joint account holders.

Conclusion of the Judgment

The Supreme Court allowed the appeal and quashed the criminal proceedings against Aparna. It held that under Section 138, only the drawer of the cheque can be prosecuted, and in cases involving joint accounts, a non-signatory joint account holder cannot be held liable unless they have signed the cheque.

In conclusion, the case of Aparna A. Shah vs. M/s Sheth Developers Pvt. Ltd. & Anr. provides a comprehensive legal precedent for understanding liability in cheque bounce cases, especially where multiple individuals are involved in joint accounts or transactions. The ruling ensures that only the actual signatories of dishonored cheques can be prosecuted under Section 138 of the N.I. Act, safeguarding others from undue criminal liability.


Tuesday, September 3, 2024

Laws Relating to Live-in Relationship in India

 

Live-in Relationship Couple in India - The Legal Grindset

Live-in relationships are already a controversial topic in India, sparking debate between old India and new India. The new generation seems to support this, while the old generation not only opposes it but also sees it as a very inferior or degenerate way of life. However, the law in India has an interesting take on this subject. The judiciary in India has gone a step further and added the concept of alimony in live-in relationships.

Development of Judicial Precedents relating to Live-in Relationships

The question of live-in relationships may be new in India, but foreign courts have been dealing with this subject for a long time. However, those interpretations cannot be used in the Indian context as personal laws in India govern such provisions.

One of the very famous cases in Common Law relating to live-in relationships is Louisa Adelaide Piers & Florence A.M. De Kerriguen v. Sir Henry Samuel Piers [(1849) II HLC 331], in which the House of Lords held that the law will presume in favour of marriage, and such presumption could only be rebutted by strong and satisfactory evidence.

Then, in the case Lieutenant C.W. Campbell v. John A.G. Campbell [(1867) Law Rep. 2 HL 269], also known as the Breadalbane case, the House of Lords held that cohabitation, with the required repute as husband and wife, was proof that the parties had mutually contracted the matrimonial relation between themselves. A relationship that may be adulterous at the beginning may become matrimonial by consent.

Following the precedent of English Common Law, the Supreme Court in India also supported a similar view in the case Gokal Chand v. Parvin Kumari [AIR 1952 SC 231].

The above interpretations are clear on the presumption of marriage; therefore, the concept of alimony should be applicable even if the marriage is not valid, as per family law. This is the exact reason the Supreme Court of India has supported alimony in live-in relationships. Sir James Fitz Stephen, a legal member of the Viceroy's Council and the man who piloted the Criminal Procedure Code, stated the view of Section 125, which is maintenance, describing the object of Section 125 of the Code (it was Section 536 in the 1872 Code) as a mode of preventing vagrancy or at least preventing its consequences.

Thus, the Supreme Court of India, in the case Chanmuniya vs Virendra Kumar Singh Kushwaha & Anr on 7 October 2010, held that where a man lived with a woman for a long time, even though they may not have undergone the legal necessities of a valid marriage, he should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent.

The Supreme Court, in the case D. Velusamy vs D. Patchaiammal on 21 October 2010, went a step further and provided guidelines on the presumption of marriage following these principles. The Court held that a `relationship in the nature of marriage' is akin to a common-law marriage. Common-law marriages require that, although not being formally married:

  • The couple must hold themselves out to society as being akin to spouses.
  • They must be of legal age to marry.
  • They must be otherwise qualified to enter into a legal marriage, including being unmarried.
  • They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

Then, in the case Indra Sarma vs V.K.V. Sarma on 26 November 2013, the Hon'ble Supreme Court held that a live-in or marriage-like relationship is neither a crime nor a sin, though it is socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal. In this case, the Court considered the view of live-in relationships as they are described in society, not as a "Presumption of Marriage" in common law. This is why this judgement discussed in detail every other aspect of live-in relationships.

An interesting view in this regard was taken by America. In the case of Marvin v. Marvin [(1976) 18 Cal.3d 660], in the context of the case, a new expression of  'palimony' was coined, which is a combination of 'pal' and `alimony', by the famous divorce lawyer in the said case, Mr. Marvin Mitchelson. However, American courts have allowed the concept of enforcing contracts in marriage, which is why "Pre-Nuptial" Agreements are legal in America.

Personal Opinion

Many of my friends, when they read the news where a large amount was decided by the court to grant alimony to the wife, say that they will not be marrying. At best, they will be living in live-in relationships. Well, my friends, you cannot escape, as you will still have to pay alimony based on the above judicial interpretations. The law in India is very chappy and venomous for men, as the court has taken the view of vagrancy in marriage to grant alimony, and that is why men always have to pay.

However, there is a very rare chance that wives generally leave their husbands and ask for alimony, but there are chances nevertheless. You cannot escape paying alimony if your wife decides to leave you. I think that is very unfair, as men are the real losers here, as women only have the right to stay in a relationship, and if they don't, they are still entitled to alimony. Men may have choices, but women always have the options, and that is why men become the sore losers in divorces.

I think the court must at least decide a reasonable time for which a live-in relationship will be presumed to be a marriage, but since there isn't, we are just dependent on the definition of "reasonable time." What a time to live as a man.

Sunday, September 1, 2024

A Case for Armed Forces (Special Powers) Act

Armed Forces (Special Powers) Act

When it comes to the Armed Forces (Special Powers) Act, or AFSPA, opinions are as polarized as they come. While I resonate with the sentiment that national integrity must be preserved at all costs, I stand firmly against the existence of AFSPA. The reasons are many, and I'm ready to lay them out. But before diving into my case, let's first understand the perspectives of both its supporters and detractors—those who view AFSPA as a necessary shield and those who see it as a violation of fundamental rights.. 

People Who Support AFSPA

The Government is the main supporter of this Act. Since it was enacted in 1958, nearly every Government in India and all its Prime Ministers have utilized this Act to uphold the national integrity of India. The Law Commission, under Justice Jeevan Reddy, proposed a review of this legislation, but those recommendations were rejected by the Government. The Government had to reject that report because it cannot afford to repeal the Act.

People Who Oppose AFSPA

My understanding of the opposition to AFSPA has developed from a document by Amnesty International titled Briefing on the Armed Forces (Special Powers) Act, 1958. The article discusses how the Act causes violations of International Human Rights Law, including:

  • Violation of the Right to Life
  • Violation of the Right to Liberty and Security of a Person
  • Torture, Ill-treatment, and Disappearances
  • Violation of the Right to Remedy

They argue that the Indian Army violates provisions of the International Covenant on Civil and Political Rights, to which India is a signatory. The report also highlights alleged abductions and killings of civilians in areas where this Act is applicable.

The Ideal Situation

The ideal situation for India would be one where there is no violence that could threaten the country's territorial integrity. However, the reality is that militancy exists in these areas, posing a potential threat. Those who oppose AFSPA should propose a plan that repeals the Act while also addressing the militancy problem. "Talks" are not a sufficient solution, as the Home Ministry has already been in dialogue with militants, and many have surrendered. However, this process will take time.

Personal Opinion

I believe that AFSPA should not exist, as there should be no violence in any part of the country. However, if violence does occur, the police should handle it immediately. The Armed Forces are like the sword of the country, and using them to curb violence in any part of India is akin to cutting vegetables with that same sword. The police in our states should be capable enough to deal with any challenges faced by the state. Unfortunately, the police in India are in a pathetic condition and severely underfunded, but I will leave that topic for another blog. Returning to my point, if we want to stop violence, we must first ensure that those who are not fighting the state are protected. We cannot allow any individual to undermine the credibility of Indian institutions, as reports like the one by Amnesty International do. It is not the Army's job to police; that responsibility lies with the police. The Indian Army is often tasked with jobs it should not be doing. As the quote from General Patton in the picture states, "I am a soldier, I fight where I am told, and I win where I fight." The Army has no choice but to use force to control the situation.

Wednesday, August 14, 2024

Grant of Bail for Accused in "Anti-National" Activities


See the above case? The case we will see today is the same case and the "ex-cop" is the appellant in the case. You can find the case reported here https://www.indiatoday.in/india/story/patana-terror-module-busted-pm-modi-target-india-islamic-nation-2047-pfi-1975412-2022-07-14

It's a familiar scenario: a few accused are charged under sections of the Indian Penal Code (IPC) and the Unlawful Activities (Prevention) Act (UAPA) for criminal conspiracy. The prosecution either fails to produce sufficient evidence to prove the charges or implicates individuals with only remote connections to the case. The Special Court or Trial Court rejects the bail of the accused, which is then challenged in a High Court and rejected again. Eventually, the order is challenged in the Supreme Court, which grants bail subject to certain conditions. This cycle seems endless, with few steps taken to improve the quality of prosecution in framing charges and producing evidence.

Notably, in these cases, the prosecutor is often the National Investigation Agency (NIA), which has a conviction rate of over 90%, an impressive figure. This raises an important question: Is the quality of public prosecutors generally poor, or is it the state's obsession with framing individuals that leads to charges that cannot be proven? This is a topic for another discussion. Now, let's return to the case at hand.

Facts of the Case

The case revolves around a man named Jalaluddin Khan, who owns a property called Ahmad Palace in Patna, Bihar, registered in his wife's name. The first floor of this property was allegedly used by the main accused in the original suit to further the agenda of the Popular Front of India (PFI). Police, acting on information that certain individuals were attempting to sabotage the Prime Minister's visit to the state, raided the property. During the raid, the police found objectionable documents, including "India 2047 Towards Rule of Islamic India."

The case involves three protected witnesses, one of whom claims that after Nupur Sharma's remarks on Prophet Mohammad, directions were given to trained PFI cadres to attack and kill selected targets involved in making derogatory remarks against Islam. It is important to note that the appellant was a former police constable. The charges against him include offences punishable under Sections 121, 121A, and 122 of the IPC, and Sections 13, 18, 18A, and 20 of the UAPA, which deal with terrorism charges.

Issues to Ascertain

  1. Was the accused really a facilitator?
  2. Is the accused entitled to bail?

Analysis of the Issues

Issue 1: Was the Accused a Facilitator?

To prove the charges, the prosecution presented several documents, including CCTV footage. However, the evidence was deemed insufficient, as it merely showed a normal contractual relationship between two parties, such as payment details and a rent agreement. The court observed that the prosecution's claim that the appellant attended a meeting only discussed the conditions of Muslims in India and education within the community. The prosecution also produced CCTV footage showing the appellant removing some objects before the raid, suggesting his involvement in the conspiracy, but the court found this evidence unconvincing.

Issue 2: Is the Accused Entitled to Bail?

The court relied on the judgment in National Investigation Agency v. Zahoor Ahmad Shah Watali, which established guidelines for courts to follow when applying bail limitations under the UAPA. The key points of this judgment include:

  • Prima Facie True: The materials must show the accused's involvement in the offence, sufficient to establish a chain of facts unless contradicted by other evidence.
  • Degree of Satisfaction at Different Stages: After charges are framed, the court must presume a strong suspicion based on the materials presented. The accused must prove that the materials do not make out reasonable grounds for believing the accusation to be prima facie true.
  • Reasoning and Evidence Evaluation: The court must record a finding based on broad probabilities regarding the accused's involvement, without detailed examination of evidence.
  • Material Analysis: The court must consider the totality of the material presented, not individual pieces of evidence.
  • Admissibility of Documents: The court must take documents as they are, without questioning their admissibility at this stage.

The court also referenced the judgment in Thwaha Fasal v. Union of India, which stated that the court must consider whether there are reasonable grounds to believe that the accusation against the accused is prima facie true. If no such grounds exist, the accused is entitled to bail. The court is not expected to hold a mini-trial or examine the merits of the evidence at this stage.

Court's Observation and Conclusion

After applying the reasoning from the above cases and reviewing the evidence, the court noted that there was no allegation in the charge sheet that the appellant was a member of any terrorist gang. The court also observed that the Special Court and High Court did not objectively consider the material in the charge sheet, focusing more on the activities of PFI rather than the appellant's case. The court emphasized that when a case for bail is made, the courts should grant bail without hesitation, in accordance with the law. Denying bail in deserving cases would violate the rights guaranteed under Article 21 of the Constitution.

Thus, the court granted bail to the appellant, allowing the Special Court to set the conditions of bail.

Personal Opinion

In this case, it was established that the appellant knew the other accused were working for PFI. However, at that time, PFI was not designated as a terrorist organization, allowing the appellant to escape liability. This highlights the failure of lawmakers to ban PFI earlier and the prosecution's failure to present strong evidence. In my opinion, the appellant was granted bail primarily because PFI had not been designated as a terrorist organization at the time.

Thursday, August 8, 2024

Torts vs Criminal Liability

Wojak Judge - The Legal Grindset

Recently, I got an opportunity to work on a criminal case, and I was very excited about it. However, after going through the facts of the case, my excitement vanished as I found that it was not a criminal case but a case involving the Law of Torts.

Facts of the Case

In this case, there was a gardener and an employer. The employer here is not the owner of an establishment but a dweller in a regular house with a garden. The gardener is not a registered employee and is actually a daily wage laborer. If we were to ask the gardener, he couldn't produce an employment letter as this sector itself is not regulated. Blue-collar workers are not regulated, and that is the reason why most of them cannot prove their employment status.

Anyways, the case started after the employer asked the gardener to climb up a jackfruit tree and pluck some fruits. While doing that task, the gardener fell down, succumbed to his injuries, and died. Now, a well-wisher of the gardener wrote a letter to the magistrate, and the magistrate, under Section 200 of the CrPC, registered a criminal complaint and directed the police to register an FIR. Since crimes under the IPC are considered crimes against the state, the state becomes the prosecutor, and the Public Prosecutor in this case filed charges under Section 304 of the IPC, which deals with culpable homicide not amounting to murder, and Section 34 of the IPC, which deals with acts done by several persons in furtherance of common intention. Both the husband and wife were made the accused in this case.

Issues

The primary issue I found applicable in this case is that it is not a criminal case at all. I feel this is a case involving torts. I feel that the Public Prosecutor has failed in his job to file the relevant sections. This would actually become a criminal case if the employers did not pay any compensation as per the Employees' Compensation Act.

Why This Is Not a Criminal Case?

This is not a criminal case because the fundamentals of any criminal case require that the actus reus, mens rea, and causal links between the crime and the accused on trial must be proven. The actus reus is there, which is already a matter of dispute, but mens rea is not present, as there is literally no interest of the employer to kill an employee by making him pluck a jackfruit. But for the sake of this case, let us give some benefit of the doubt.

Why This Is a Torts Case?

In my argument, I believe this is a torts case because it checks all the boxes of the essentials of a tort. Tort generally means civil wrongdoings, but actually, it is a case arising not due to someone's fault but due to some twist in the tale. The remedies available in torts are due to the principle of "Ubi jus ibi remedium."

I am focused on the point that this is a torts case due to the following reasons:

  • The prosecution will not be able to prove the case.
  • As advocates, our responsibility is to assist the courts, and I believe it is in the best interest of both aggrieved and accused parties that the case is settled by providing a remedy.
  • It is of no use for the employer to go to prison. I believe true justice lies in getting the remedy to the victim. And as stated by the Supreme Court in the case Naresh Kumar & Anr. vs. State of Karnataka & Anr., the Court stated that the High Court must not hesitate in quashing such criminal proceedings which are essentially of a civil nature. Tort, being a case of a civil nature, should also be tried separately.

How the Prosecutor Can Use the Provisions of the Employees' Compensation Act

The prosecutor could have instead relied on the provisions of the Employees' Compensation Act to seek justice for the deceased gardener. Under this Act, the employer is liable to pay compensation to the employee's family in cases of death or injury during the course of employment. Given that the gardener was carrying out the employer's instructions at the time of the accident, the employer would be responsible for compensating the gardener's family.

The prosecutor could have filed for the compensation under the Act, ensuring that the family receives the financial remedy they deserve. This approach aligns more closely with the principles of justice, as it focuses on providing relief to the victim's family rather than pursuing criminal charges that are difficult to substantiate.

Personal Opinion

I believe we must not romanticize giving criminal punishment over any issue. The main objective of an advocate is to assist the court and that include a Public Prosecutor. If there is a violation of right, the remedy shall be given to the aggrieved but giving a criminal punishment does the aggrieved get any remedy? criminal punishment shall only be given when there is no other alternate remedy available.


Tuesday, August 6, 2024

Why Marvel and DC Don’t Sue Each Other Despite Similar Characters?

 

As a kid I used to wonder, Why Marvel and DC, the two comic book giants don’t constantly sue each other for copyright infringement, especially when some of their characters seem so similar. Take Deadpool and Deathstroke, for example. Both are skilled with guns and swords, have healing powers, and wear similar costumes. The main difference is their personalities: Deadpool is chatty and funny, while Deathstroke is serious and morally complex. Similarly, characters like Hulk and Solomon Grundy share many traits. If we as viewers can spot these similarities, why don’t Marvel and DC file lawsuits over them?

The Idea-Expression Dichotomy

One key reason is the idea-expression difference in copyright law. This principle says that while copyright protects the way ideas are expressed, it doesn’t protect the ideas themselves. In superhero comics, common ideas like super strength or healing abilities can’t be protected. However, the specific way these ideas are shown—through character design, storylines, and dialogue—can be protected.

For example, while Deadpool and Deathstroke are both mercenaries with similar abilities, they are expressed differently. Deadpool’s humor and antics set him apart from Deathstroke’s serious and gritty character. Because of these differences in expression, straightforward copyright claims are hard to make.

Originality and Substantial Similarity

To win a copyright infringement lawsuit, a plaintiff must prove that their work is original and substantially similar to the allegedly infringing work. Marvel and DC characters, even if they share common superhero traits, usually have unique attributes that ensure their originality. Hulk and Solomon Grundy might both be big, green, and super-strong, but their origins, motivations, and story arcs are different enough to avoid substantial similarity claims.

Fair Use Doctrine

Another important part of copyright law is the fair use doctrine, which allows limited use of copyrighted material without permission for purposes like criticism and parody. Marvel and DC have sometimes parodied each other’s characters, which is generally considered fair use. For instance, Marvel’s Deadpool is often seen as a parody of DC’s Deathstroke, highlighting certain traits for comedic effect.

Conclusion

While characters like Deadpool and Deathstroke, or Hulk and Solomon Grundy, might seem too similar to be coincidental, the principles of copyright law explain why Marvel and DC don’t constantly sue each other. The idea-expression difference, requirements for originality and substantial similarity, and the fair use doctrine provide a legal framework that allows both companies to create characters with shared traits without infringing on each other’s copyrights. This way, both Marvel and DC can continue to coexist and thrive in the comic book industry.

Friday, August 2, 2024

Prison Visit

Prison visit in Bangalore Central Prison - The Legal Grindset

So, we visited the Central Prison in Bangalore on 24th July 2024. The reason I'm writing about this now is that, at first, I did not think I would be documenting the prison trip, but few thoughts came to my mind, so I'm putting them right here. First of all, this was a one-of-a-kind trip where we went to prison without doing anything against the law, and I intend to keep it that way in the future as well. The prison literally shocked us. There's no doubt that prison is a very different kind of place, yet it is just like a normal public place in India.

If we were to compare the prison with the rest of Bangalore, we could easily say it was not as good as Malleshwaram, but I can bet my life that it was at least a hundred times better than areas like Cottonpete and Chikpete. I think that with strict compliance, we can actually make India a little cleaner and better. The only difference between Cottonpete and the Central Prison is that in Cottonpete, people have been given liberty, while the prisoners have limited liberty. This seems like a hard pill to swallow, but prison literally seems like a better option than living in some areas of India.

What was most striking in the prison visit was how similar it was to a school or an educational institute in India. The similarities include a large area enclosed in a compound with a fence, hostel-like prison cells, strict timings for everything, and finally, teachers and jailors who go on to beat anyone without any reason.

Reform in prisons in India is a joke. It seemed like all the undertrials in the prison will go out and commit crimes again. The undertrials showed peculiar behavior; to me, it seemed like they were really enjoying their time in prison, and all of them had a kind of pride in being there. Group fights and skirmishes were common in the undertrial area, and generally, it was very chaotic.

The situation in the convict area was completely different. All the convicts showed patience and gentlemanly behavior. They were quiet and cooperative. There were no skirmishes in the convict area, and almost all of them were busy doing some work and ignored the visitors. Undertrials, on the other hand, were staring at the visitors. Some of the undertrials seemed more interested in boys than girls too.

One thing common among all the prisoners was that they were very intimidating. Almost all of them were stunted in height. They were usually short and skinny. I would say they were smaller in physical stature compared to the average in India, as poverty can be one of the main reasons most of them are in prison anyway. But still, they were very intimidating. Just looking at them, I knew that I couldn't take them on one-on-one despite having a better build than most of them. It felt like they had eyes made of stone locked on us, and their pointy, thin fingers seemed like they could pierce a man's flesh easily. Observing them, I felt that I could easily distinguish a criminal from an ordinary man without a trial. The prison visit literally changed my worldview. On one hand, I think that prison is better than living in poverty in India, but if we see it the other way, it is a hell for people who are rich and middle class. We were not able to see the VIP prison cells, so we cannot comment on what the conditions were like there, but the ordinary prison seems like a third-grade government school or college. People who can survive such schools or colleges will love prison.

The State of Punjab and Ors Vs Davinder Singh: Revisiting the Policy of Reservations in India

Reservations in India is perhaps the most controversial topic. A mere mention of the removal or change in this policy is enough to cause riots. This kind of reaction is expected as, except for the General Category, all the classes of people are reserved in India. We don't have the government data regarding the caste-wise population of India, but there are various surveys done to find the details of caste-wise population in India. The most prominent of these surveys is the Pew Research, where the majority of Indians claimed that they were from the lower castes, that is SC/ST or OBC. In a country where the majority are of the lower caste, it is just common sense that it becomes a major topic for politics, and majority appeasement becomes the standard.

History of Reservations in India

Reservations were introduced in India as an affirmative action to support the marginalized or backward communities in India. Initially, only people belonging to SC and ST were given reservations. However, after the VP Singh-led government decided to implement the Mandal Commission, OBCs were also brought under the reservations, changing the nature of politics in India. Post-implementation of the Mandal Commission, India has become more divided by caste, and we have seen the rise of caste leaders such as Lalu Yadav, Mulayam Singh Yadav, and Mayawati as a phenomenon.

Current Situation

Like everything in India, we were not able to achieve the targets for which the reservations were brought. Every time there is a new vacancy, some new policy of the state government is brought to action, which is then challenged in court, leading to endless litigations. This results in delays in the recruitment process, and many seats remain vacant, burdening the government and blunting the efficiency of the administration. The results of this inefficiency are evident in our daily interactions with government offices. One such policy of the governments is to subclassify the reserved communities, and it is over this issue that the Supreme Court passed a landmark judgment on 1st August 2024.

The State of Punjab and Ors Vs Davinder Singh

Background

The issue in this case arises when the State Legislature of Punjab enacted the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act 2006. Section 4(5) of this act provides for 50% reservation in direct recruitment of Scheduled Castes, but priority is to be given to Mazhabi Sikhs or Balmikis as the first preference. This section of the Act was challenged.

Constitutional Provisions Applicable

Article 14 provides for equality before law to all citizens, while Article 15(1) states that the State should not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them. However, under Article 15(4), the state has the power to make special provisions for the advancement of any socially and educationally backward classes of citizens. Further, Article 16 deals with equality of opportunity in matters of public employment. Article 341 gives the President the power to notify the castes, races, or tribes which shall be deemed to be Scheduled Castes, and Article 342 does the same for Scheduled Tribes.

Precedent Set

In the case EV Chinniah v. State of Andhra Pradesh, the same issue of the subcategorization of the Scheduled Castes and Scheduled Tribes was discussed and held as unconstitutional, as these groups form a singular group. Based on this decision, the Punjab and Haryana High Court declared the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act 2006 as unconstitutional. The State then challenged the order of the Punjab and Haryana High Court by relying on the 9-judge bench decision in the case Indra Sawhney v. Union of India. In Indra Sawhney v. Union of India, it was held that the backward classes could be divided into the ‘more backward’ and ‘backward’, depending on inter-se backwardness. Further, the Supreme Court relied on various judgments such as State of Kerala v. NM Thomas and Jarnail Singh v. Lachhmi Narain Gupta.

Judgment

The Hon'ble judges, relying on the statistics, noted that deprived and marginalized persons have not been able to achieve the benefit of reservation. The Hon'ble judge further noted that the government has used caste as the basis for upliftment rather than identifying the class of people based on vocation or their social and economic conditions who actually require help to be promoted to the level of the forward class. The experience shows that the better-off among the backward classes take up most of the reserved vacancies/seats, leaving the most backward with nothing in their hands.

This situation was illustrated using an example of three students, A, B, and C. Both A and B come from well-to-do families with similar status, family background, education, and financial capacity. A, a general category candidate, qualifies for admission on merit, whereas B, from a backward class, qualifies for admission in the reserved category. Student C, also from a backward class but without the same advantages, remains unsuccessful. Repeatedly, backward class candidates with similar advantages to A and B qualify, leaving the most backward behind.

The Supreme Court relied on Hindu scriptures such as Skanda Purana and Bhagwat Gita to assert that ancient India was a casteless society. The court observed that reservation is a facility, but its execution revives casteism. Quoting Nani Palkhiwala, the court stated that:

"The basic structure of the Constitution envisages a cohesive, unified, casteless society. By breathing new life into casteism, the judgment fractures the nation and disregards the basic structure of the Constitution. The decision would revitalise casteism, cleave the nation into two – forward and backward - and open new vistas for internecine conflicts and fissiparous forces, and make backwardness a vested interest. It will undo whatever has been achieved since independence towards creating a unified, integrated nation. The majority judgments will revive casteism which the Constitution emphatically intended to end; and the pre-independence tragedy would be re-enacted with the roles reversed – the erstwhile underprivileged would now become the privileged."

The Supreme Court also quoted the views of Jawaharlal Nehru:

"I want my country to be a first-class country in everything. The moment we encourage the second-rate, we are lost. The only real way to help a backward group is to give opportunities for good education, including technical education, which is becoming more important. Everything else is a provision of crutches which do not add to the strength or health of the body."

Based on these views, the Supreme Court concluded that sub-classification of the scheduled castes is constitutionally permissible. The policy of reservation, as enshrined under the Constitution and by its various amendments, requires a fresh re-look and the development of other methods for helping and uplifting the depressed class or the downtrodden. Periodical exercises should exclude those who, after taking advantage of reservation, have reached parity with the general category. The court favored adding the concept of "creamy layer" to the SC and ST population, suggesting that those who have availed reservations once should not be granted the same again, as it deprives other underprivileged individuals.

Personal Opinion

I never thought that I would agree with any judgment in toto, but this judgment is so well reasoned and written that I must admit I agree entirely. These are issues that we are not generally allowed to discuss, as even mentioning them can result in being labeled "anti-dalit," as the Hon'ble Judges have also observed. Ultimately, give a man a fish, and you feed him for a day; teach a man to fish, and you feed him for a lifetime. Giving reservations is like giving that fish, but without skills, the man never learns. The government should explore other ways to help the downtrodden, but instead, they are satisfied with the votes they receive.

Conclusion

The issue of reservations in India remains deeply complex and contentious. While the original intent was to uplift marginalized communities, the implementation and evolution of these policies have led to significant political and social challenges. The Supreme Court's recent judgment highlights the need for a nuanced approach to reservations, recognizing the disparities within the backward classes themselves. The concept of "creamy layer" within the SC and ST populations and the periodic review of reservation policies may be necessary steps to ensure that the benefits reach those truly in need.

The judgment calls for a reassessment of how reservations are administered, suggesting that a focus on education and skill development might be more effective in achieving the goal of social equality. This approach aligns with the vision of a casteless, unified society as envisaged by the framers of the Constitution. As India continues to navigate these complex issues, it is crucial that policies evolve to reflect the changing socio-economic realities, ensuring that the principles of justice and equality are upheld for all citizens.

Wednesday, July 31, 2024

Rejection of Plaint due to Lack of Jurisdiction

Rejection of a plaint is a critical argument often raised by the defense under Order VII Rule 11 of the Civil Procedure Code (CPC). This ground is frequently invoked in written statements, with the primary prayer often being the rejection of the plaint. While seemingly straightforward, the procedural intricacies involved are essential to understand in the context of litigation.

Jurisdictional Grounds for Rejection of Plaint

A lack of jurisdiction is a valid ground for the rejection of a plaint. However, questions arise about the implications of such a rejection. It is commonly assumed that a fresh suit will be filed in a court with proper jurisdiction. But what about the orders issued by the court lacking jurisdiction? Even if a judgment passed by a court is erroneous, it is binding. So, does the same apply to interim orders issued by a court lacking jurisdiction?

Case Law Analysis

  1. Sri. K.Somanath Nayak vs Sri. D.Veerendra Heggade (5 May 2022, Karnataka High Court)

    The Karnataka High Court addressed interim orders in cases where a court's jurisdiction is questioned. The court ruled that while an objection to jurisdiction must be resolved promptly, the court is not instantly disabled from passing interim orders. Such orders are effective until the court decides it lacks jurisdiction. These orders are subject to modification or vacating once the court determines it has no jurisdiction. For example, if a party is dispossessed from the property by a receiver, the court must restore the party to their original position if it later determines it lacks jurisdiction. However, violations of these interim orders before the jurisdictional decision can still be punished. The relevant para of the judgment states:

    "…where an objection to jurisdiction of a civil court is raised to entertain a suit and to pass any interim orders therein, the Court should decide the question of jurisdiction in the first instance but that does not mean that pending the decision on the question of jurisdiction, the Court has no jurisdiction to pass interim orders as may be called for in the facts and circumstances of the case. A mere objection to jurisdiction does not instantly disable the court from passing any interim orders. It can yet pass appropriate orders. At the same time, it should also decide the question of jurisdiction at the earliest possible time. The interim orders so passed are orders within jurisdiction when passed and effective till the court decides that it has no jurisdiction to entertain the suit. These interim orders undoubtedly come to an end with the decision that this Court had no jurisdiction. It is open to the court to modify these orders while holding that it has no jurisdiction to try the suit. Indeed, in certain situations, it would be its duty to modify such orders or make appropriate directions. For example, take a case where a party has been dispossessed from the suit property by appointing a receiver or otherwise; in such a case, the court should, while holding that it has no jurisdiction to entertain the suit, must put back the party in the position he was on the date of suit. But this power or obligation has nothing to do with the proposition that while in force, these orders have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff provided the violation is committed before the decision of the court on the question of Jurisdiction."

  2. Suresh Vijayavargiya vs Ashok Kumar (Madhya Pradesh High Court)

    The Madhya Pradesh High Court ruled that interim orders issued by a court lacking jurisdiction would stand vacated following the rejection of the plaint. The matter was remanded to the appropriate trial court to proceed according to the law.

  3. M/S Exl Careers and Another vs Frankfinn Aviation Service Private Limited (Supreme Court)

    The Supreme Court elaborated on the consequences of rejecting a plaint, stating that the matter should be heard de novo, or from the beginning, after the plaint's rejection. This ruling underscores that a fresh start is necessary when a plaint is rejected due to jurisdictional issues.

Conclusion

The procedural law surrounding the rejection of a plaint and subsequent orders is complex and varies based on the court's findings on jurisdiction. Interim orders passed by a court lacking jurisdiction are not permanently binding and can be vacated or modified. Understanding these nuances is crucial for navigating litigation effectively and ensuring compliance with jurisdictional requirements. Further development in this area will be updated in upcoming blogs.

Tuesday, July 30, 2024

Cold Start Doctrine: A Cold Start with a Cold Heart

 

The Cold Start Doctrine is a concept formulated by the Indian Army, although they officially deny its existence. This doctrine is an offensive strategy against Pakistan, yet it is reasonable to believe that the Indian Army, like any army, always prepares for contingencies and plans to counter potential threats.

Essence of the Doctrine

The core idea of the doctrine is that in the event of a conflict with Pakistan, there is always the risk of nuclear fallout, which would be detrimental to both countries. However, the threat from Pakistan must be addressed regardless. If war occurs, the Indian Army, with the assistance of other armed forces, will mobilize and launch attacks on all fronts. Pakistan would be overwhelmed due to India's larger size and might. In such a situation, the Indian Army can disarm Pakistan before it resorts to using its nuclear arsenal. This summarizes the Cold Start Doctrine: a cold start with a cold heart.

Applying the Doctrine in Legal Defense

I have observed that many advocates, especially in defense cases, use a similar strategy. It is well-known that trials in India are not expeditious and are often messy affairs. Considering these factors, the best-case scenario for the defense is the rejection of the suit. Rejection can be achieved through various methods such as compromise, mediation, arbitration, or conciliation. However, if all these methods fail, we should adopt the Cold Start Doctrine approach: a cold start with a cold heart. The phrase itself is so catchy that I might follow it for its appeal alone.

Monday, July 29, 2024

Lessons from Robert Clive


The gentleman in the image is Robert Clive, a pivotal figure in establishing the East India Company’s rule in India. Clive served as the Governor of Bengal from 1757-60 and again from 1765-67. We often become emotional over colonialism and blame our former kings for India's fall to the British. Many cite Prithvi Raj Chauhan’s decision to pardon Mohammad Ghori, which allegedly opened the floodgates for Islamic invasions in the subcontinent—an entirely separate topic for another blog. Learning from past mistakes is crucial for growth, yet our elites have repeatedly failed to do so. We continue to be governed by the same laws and methods, with distinct shortcomings in various areas.

The Battle of Plassey

When discussing the Battle of Plassey, the narrative often focuses on British cunningness in leveraging Mir Jafar and Siraj Ud Daulah. However, we must consider the perspective of Robert Clive himself. Clive’s success stemmed from his army’s superior discipline, armament, and crucially, better pay. Historians agree that these factors played a significant role in his victories.

In contrast, when the British defeated the Marathas, they discovered vast amounts of wealth in the Maratha camps. Despite having substantial resources, Maratha leaders failed to adequately pay their soldiers, leading to low morale and inefficiency.

"After their victory over the Marathas, the British found vast amounts of cash and treasure in the Maratha camps, which highlighted the fact that, despite having substantial resources, the Maratha leaders had failed to pay their soldiers properly."

— Pramod K. Nayar, The Great Uprising: India, 1857

Economic Disparities: Then and Now

This disparity highlights a persistent issue: the neglect of workers' remuneration. The British respected and compensated their soldiers, contributing to their military success. Today, a similar neglect persists in India. Many workers feel underpaid relative to their labor, a situation exacerbated by poverty, which forces employees to accept any available job.

Case Study: The Hinduja Family

A recent example is the Hinduja family’s conviction in Switzerland for exploiting domestic workers. Employees worked up to 18 hours a day with minimal vacation and received less than one-tenth of the legally mandated pay. Imagine getting paid 1/10th the payment mandated without dignity. This exploitation reflects a broader issue of worker mistreatment and inadequate compensation. Members from Hinduja family got convicted because the matter was in Switzerland, in India I have reasons to believe that many such cases are left buried. 

The Exploitation in Legal Field

In the legal field, exploitation manifests in unpaid internships, with some firms even charging interns for basic necessities. The rationale is that interns are there to learn, but this often leads to harassment under the guise of training. Personally, I have  don't have such experience but I have dodged few bullets in initial interviews itself, but not everyone is as fortunate.

Conclusion

Fair compensation is not just a moral duty but a practical necessity for quality output. Employers who invest in their employees' welfare see better results and fewer complications. The historical lesson from Robert Clive’s victories is clear: respecting and adequately compensating workers leads to success. With great power comes great responsibility, and those in positions of authority must prioritize fair treatment and remuneration of their workforce to foster growth and avoid unnecessary troubles.

Problem with Reforms in India

To simply put, you cannot push for reforms in India. "But, India has seen many reforms since independence, how can we say that reforms ...