Thursday, 31 December 2015

Delhi Odd-Even Formula

The Delhi’s Odd-Even Formula was notified by Transport Department, Government of National Capital Territory of Delhi via Notification No. F. 3(218)/MRTS/Tpt./2015/302 dated 28/12/2015.
The Odd-Even formula will be in effect from 1st January, 2016 till 15th January, 2016.

Prohibitory/Restrictive measures:
The plying of non-transport four wheeled vehicles (Motor Cars etc.) having registration number ending with odd digit (1,3,5,7,9) shall be prohibited on even dates of the month (i.e. 2nd, 4th, 6th, 8th, 10th, 12th day and so on) and plying of the non-transport Vehicles having registration number ending with even digit (0,2,4,6,8) shall be prohibited on odd dates of the month (i.e. 1st, 3rd, 5th, 7th, 9th, 11th day and so on).
These restrictions shall also apply to the non-transport four wheeled vehicles bearing registration number of other states.
These restrictions shall be applicable from 8 AM to 8 PM of such dates.
These restrictions shall not be applicable on Sundays.

Fine in case of violation
Any violation shall attract a fine of Rs. 2000/- in accordance with the provisions of sub- section (1) of section 194 of the Motor Vehicles Act, 1988.

Compounding of the offence
In exercise of the powers conferred vide sub-section (1) of section 200 of the Motor Vehicles Act, 1988 the following officers are authorized to compound the aforementioned offence with the amount of Rupees 2000/-.
(a) Officers of the rank of Head Constable and above of Delhi Police.
(b) Officers of the rank of Head Constable and above of the Transport Department, GNCTD.
(c) Officers or authorities as authorized by Divisional Commissioner, Revenue Department, GNCTD

The following are exempted from the Odd-Even rule:
(i) Vehicles of the President of lndia;
(ii) Vehicles of the Vice President of lndia;
(iii) Vehicles of the Prime Minister of lndia;
(iv) Vehicles of Governors of States.
(v) Vehicles of Chief Justice of lndia.
(vi) Vehicle of the Speaker of Lok Sabha;
(vii) Vehicles of the Ministers of the Union;

(viii) Vehicles of the Leaders of Opposition in the Rajya Sabha and Lok Sabha;
(ix) Vehicles of Chief Ministers of States and Union Territories except Chief Minister, Government of National Capital Territory of Delhi;
(x) Vehicles of the Judges of Supreme Court of lndia;
(xi) Vehicle of the Deputy Chairman of Rajya Sabha ;
(xii) Vehicle of the Dy. Speaker of Lok Sabha;
(xiii) Vehicles of Lieutenant Governors of Union Territories;
(xiv) Vehicles of the Judges of Delhi High Court;
(xv) Vehicle of the Lokayukta;
(xvi) Emergency Vehicles i.e. Ambulance, Fire Brigade, Hospital, prison, Hearse vehicles;
(xvii) Enforcement vehicles i.e. vehicles of Police, Transport Department GNCTD, vehicles authorised by the Divisional Commissioner GNCTD, para military forces etc.;
(xviii) Vehicles bearing Ministry of Defence number plates;
(xix) Vehicles which are having a pilot/escort;
(xx) Vehicles of SPG protectees;
(xxi) Embassy Vehicles bearing CD numbers;
(xii) Compressed Natural Gas driven vehicles (these vehicles should prominently display sticker 'CNG Vehicle' on the front windscreen - issued by M/s lndraprastha Gas Ltd.), Electric vehicles, Hybrid vehicles;
(xxiii) vehicles being used for medical emergencies - (will be trust based);
(xxiv) Women only vehicles - including children of age upto 12 years travelling with them;

(xxv) Vehicles driven/occupied by handicapped persons.

Wednesday, 30 December 2015

Negotiable Instrument (Amendment) Act 2015

The Negotiable Instruments (Amendment) Act 2015 was give assent by the Hon’ble President onth December 2015 and was published in the Official Gazette on 29th December 2015. However, the Act has a retrospective effect and shall be deemed to have come into force on the 15th June 2015.
The main highlight of this Amendment is the insertion of sub-section (2) in section 142 of Negotiable Instruments Act, 1881

"(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,—
(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or
(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.
Explanation — For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account".

The Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) (2 Judges Bench) held that “the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said offence: (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice”. Thus if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done.

However, the K. Bhaskaran judgment was overruled by a 3 Judges Bench in the case of Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. (2014) which held that  a Complaint of Dishonour of Cheque can be filed only  to  the  Court  within  whose  local jurisdiction the offence was committed, which  in  the  present  context  is where the cheque is dishonoured by the bank on which it is drawn. The Court clarified that the Complainant is statutorily bound to comply with Section 177 etc. of the CrPC and therefore the place or situs where the Section 138 Complaint is to be filed is not of his choosing.

The present 2015 amendment makes changes in provisions relating to the territorial jurisdiction for filing Cheque dishonour cases in the Negotiable Instrument Act. As per the 2015 Amendment the offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction—

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or
(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Tuesday, 29 December 2015

Hon’ble Justice Vikramajit Sen

Justice Vikramajit Sen was born on 31st December, 1950.

He was appointed as a judge of the Supreme Court of India on 24th December 2012 and he will retire on 30th December 2015.

Academics and Practicing Career
Attended St. Xavier's School, Delhi and passed the ISC in the First Division.
Graduated from St. Stephen's College with Honours in History.
Attained First Division in LL.B. from Faculty of Laws, Delhi University, and was awarded the First Prize in Moot Court and Silver Medal in Labour Laws.
Captained Faculty Teams in Basketball and Tennis and was chosen Sports Secretary.
Practiced in all the Courts in Delhi, although primarily in the High Court of Delhi and handled civil, arbitration and commercial disputes. He had a special interest and consultancy on minority rights.

As a Judge of High Court and Supreme Court
Justice Vikramajit Sen was appointed as an Additional Judge of the Delhi High Court on 7th July 1999 and was appointed as a permanent Judge on 30 October 2000.
On 12th September 2011 he was transferred to Karnataka High Court as an acting Chief Justice and subsequently on 24th December 2011, he assumed office as Chief Justice of the Karnataka High Court.
On 24th December 2012, he was elevated and appointed as a judge at the Supreme Court of India.

Other Recognitions
Member of the Malta Judicial Conference under the auspices of the Hague Convention

Addressed the South Asia Forum for Infrastructure Regulation Workshop organized by Bangladesh Telecommunication Regulatory Commission during August 3-4, 2002

Invited by United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP) to the Regional Expert Conference on “Harmonized Development of Legal and Regulatory Systems for E-commerce in Asia and the Pacific: Current Challenges and Capacity Building Needs” at Bangkok, Thailand from July 7-9, 2004

Participated in the 'Global Intellectual Property Academy (GIPA) Session on enforcement of Intellectual Property Rights' from 18th to 21st September 2007 at Alexandria, Virginia, organized by United States Patent and Trademark Office (USPTO)

Invited by the Lord Chancellor of the United Kingdom to the opening of Machaelmas Sittings on 1st October 2007

Sessions Chairman of the Third Malta Judicial Conference on Cross-frontier Family Law Issues from 22nd to 29th March 2009 organized in Malta by the Hague Conference on Private International Law.

Addressed the 'International Family Justice and Judicial Conference for Common Law and Commonwealth Jurisdiction', held from 4th to 7th August 2009 at Cumberland Lodge, Windsor, England

Member of International Association of Family Judges

Addressed “International Judicial Conference on Cross-Border Family Relocation” held in Washington D.C. from 23-25 March 2010

Addressed the '3rd Meeting of the Working Party on Mediation in the Context of the Malta Conference' held on 11th & 12th May 2010 at Gatineau, Canada.

As a Member of the Planning Committee of the Common Law-Commonwealth Conference 2009 addressed the Conference in Hyderabad in February 2011.

Co-Moderator in the Conference on Mediation organized in association with Hong Kong Mediation Council and Hong Kong International Arbitration Centre.

First Chairperson of Delhi High Court Arbitration Centre and in this capacity was involved in its establishment as well as its operation.

Member, National Legal Services Authority and Executive Chairman, Delhi Legal Services Authority. 

Member, Indian Society of International Law. 

Member, India International Law Foundation, New Delhi.

Landmark Judgments
Dashrath Rupsingh Rathod v. State of Maharashtra & Anr., 2014 Supreme Court - Section 138 of NI Act cases (Dis-honour of Cheque) can be filed only to the Court within whose local jurisdiction, the offence was Committed; i.e., where the cheque is dishonoured by the bank on which it is drawn.

Roxann Sharma v. Arun Sharma, 2015 Supreme Court - Judgment dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes

Led a Bench which uphold right of live-in partner to claim maintenance [2015 Supreme Court]

K. Srinivas v. K. Sunita, 2015 Supreme Court – Judgment that filing a false criminal complaint by either spouse would constitute matrimonial cruelty and entitle the other spouse to claim a divorce

Monday, 28 December 2015

Armed Conflict is a contested incompatibility

Armed violence can be described as: “the intentional use of illegitimate force (actual or threatened) with arms or explosives, against a person, group, community or state, which undermines people centred security and/or sustainable development.”

The International Criminal Tribunal for the former Yugoslavia (ICTY) proposed a general definition of international armed conflict. In the Tadic case, the Tribunal stated that "an armed conflict exists whenever there is a resort to armed force between States" [ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995, Para 70].

An armed conflict is a contested incompatibility which concerns government and/or territory where the use of armed force between two parties, of which at least one is the government of a state, results in at least 25 battle-related deaths.[Wallensteen, Peter, and Margareta Sollenberg, Armed Conflict and Regional Conflict Complexes, 1989-97, Journal of Peace Research, vol. 35, no. 5, 1998, pp.621-634; The Conflict Data Project, Department of Peace and Conflict Research, Uppsala University, Sweden]

The separate elements of the definition are operationalised as follows:
(1) Use of armed force: use of arms in order to promote the parties’ general position in the conflict, resulting in deaths. Arms: any material means, e.g. manufactured weapons but also sticks, stones, fire, water, etc.
(2) 25 deaths: a minimum of 25 battle-related deaths per year and per incompatibility.
(3) Party: a government of a state or any opposition organisation or alliance of opposition organisations.
·         Government: the party controlling the capital of the state.
·         Opposition organisation: any non-governmental group of people having announced a name for their group and using armed force.
(4) State: a state is
·         an internationally recognized sovereign government controlling a specified territory, or
·         an internationally unrecognised government controlling a specified territory whose sovereignty is not disputed by another internationally recognised sovereign government previously controlling the same territory.
(5) Incompatibility concerning government and/or territory the incompatibility, as stated by the parties, must concern government and/or territory.

·         Incompatibility: the stated generally incompatible positions.
·         Incompatibility concerning government: incompatibility concerning type of political system, the replacement of the central government or the change of its composition.
·         Incompatibility concerning territory: incompatibility concerning the status of a territory, e.g. the change of the state in control of a certain territory (interstate conflict), secession or autonomy (intrastate conflict).

According to D. Schindler, "the existence of an armed conflict within the meaning of Article 2 common to the Geneva Conventions can always be assumed when parts of the armed forces of two States clash with each other. […] Any kind of use of arms between two States brings the Conventions into effect”.

Terms such as ‘civil wars’ and ‘ethnic conflict’ quickly came into use in the 1990s as shorthand descriptors for the armed conflicts in Africa, Asia and Europe. Such terms reinforced the common view that these were mainly intra-state affairs that were triggered and fuelled by virulent ethno-nationalism. However, in most cases, these conflicts involved regional actors and trans-border activities, and were driven by a mix of factors and not simply ethnic difference.

Saturday, 26 December 2015

Advisory Jurisdiction of the Supreme Court

The Supreme Court has original, appellate and advisory jurisdiction. Its advisory jurisdiction is provided under article 143 of the Constitution. Article 143 of the Constitution of India deals with Power of President to consult Supreme Court. Article 143 reads as:

                         “(1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.

(2) The President may, notwithstanding anything in the proviso to article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.”

The Constitution (Article 143) authorises the president to seek the opinion of the Supreme Court in the two categories of matters:

(a) On any question of law or fact of public importance which has arisen or which is likely to arise.
(b) On any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanad or other similar instruments.

In the first case, the Supreme Court may tender or may refuse to tender its opinion, to the president.  But, in the second case, the Supreme Court 'must' tender its opinion to the president.
In both the cases, the opinion expressed by the Supreme Court is only advisory and not a judicial pronouncement. Hence, it is not binding on the president; he may follow or may not follow the opinion. However, it facilitates the government to have an authoritative legal opinion on a matter to be decided by it. So far, the president has made fourteen references to the Supreme Court under its advisory jurisdiction (also known as consultative jurisdiction).

The Supreme Court may decline to give its opinion under Article 143 in cases it does not consider proper or not amenable to such exercise. It was held by the Supreme Court in M. Ismail Faruqui v. Union of India (AIR 1995 SC 605) that in such a case, reasons must be indicated. In Ismail Faruqui case, the five judge bench of the Supreme Court held that the Presidential reference seeking the Supreme Court’s opinion on whether a temple originally existed at the site where the Babri Masjid subsequently stood was superfluous and unnecessary and opposed to secularism and favoured one religious community and therefore, does not required to be answered.

The first reference under Article 143 was made in the Delhi Laws case (1951). In Delhi Laws Act case, the Court considered the validity of the Act with regard to delegated legislation.

References made under article 143 -
1.       In re Delhi Laws Act in 1951
2.       In re Kerala Education Bill in 1958
3.       In re Berubari Union in 1960,
4.       In re Sea Customs Act in 1963
5.       In re Keshav Singh's case relating to the privileges of the Legislature in 1964
6.       In re Presidential Election in 1974
7.       In re Special Courts Bill in 1978
8.       In re Jammu and Kashmir Resettlement Act in 1982
9.       In re Cauvery Water Disputes Tribunal in 1992

10.   Re: Rama Janma Bhumi case in 1993, consultation process to be adopted by the chief justice of India in 1998, legislative competence of the Centre and States on the subject of natural gas and liquefied natural gas in 2001,

11.   Re: the constitutional validity of the Election Commission's decision on deferring the Gujarat Assembly Elections in 2002

12.   In re Punjab Termination of Agreements Act in 2004

Thursday, 24 December 2015

International Committee of the Red Cross

The International Committee of the Red Cross (ICRC) is a humanitarian institution based in Geneva, Switzerland. The ICRC is part of the International Red Cross and Red Crescent Movement along with the International Federation of Red Cross and Red Crescent Societies (IFRC) and 190 National Societies. It is the oldest and most honoured organization within the Movement and one of the most widely recognized organizations in the world, having won three Nobel Peace Prizes in 1917, 1944, and 1963.

The official mission statement of ICRC says that: "The International Committee of the Red Cross (ICRC) is an impartial, neutral, and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of war and internal violence and to provide them with assistance." It also directs and coordinates international relief and works to promote and strengthen humanitarian law and universal humanitarian principles. The core tasks of the Committee, which are derived from the Geneva Conventions and its own statutes are:

1.      to monitor compliance of warring parties with the Geneva Conventions
2.      to organize nursing and care for those who are wounded on the battlefield
3.      to supervise the treatment of prisoners of war and make confidential interventions with detaining authorities

4.      to help with the search for missing persons in an armed conflict (tracing service)
5.      to organize protection and care for civil populations
6.      to act as a neutral intermediary between warring parties

The ICRC drew up seven fundamental principles in 1965 that were adopted by the entire Red Cross Movement. They are humanity, impartiality, neutrality, independence, volunteerism, unity, and universality.
ICRC operations are generally based on International Humanitarian Law (IHL), the four Geneva Conventions of 1949, their two Additional Protocols of 1977 and Additional Protocol III of 2005, the Statutes of the International Red Cross and Red Crescent Movement, and the resolutions of the International Conferences of the Red Cross and Red Crescent.

International Humanitarian Law (IHL), Treaties and Customary Law International Humanitarian Law is a set of rules that come into effect in armed conflicts. It aims to minimize the harms of an armed conflict by imposing obligations and duties to those who participate in armed conflicts. IHL mainly deals with two parts, the protection of persons who are not, or no longer taking part in fighting and restrictions on the means and methods of warfare such as weapons and tactics. IHL is founded upon Geneva conventions which were first signed in 1864 by 16 countries. 

Traditions and Customs had governed the conduct of war until then, which varied depending on the location and time. The First Geneva Convention of 1949 covers the protection for the wounded and sick of armed conflict on land. The Second Geneva Convention asks for the protection and care for the wounded, sick and shipwrecked of armed conflict at sea. The Third Geneva Convention emphasizes the treatment of prisoners of war. The Fourth Geneva Convention concerns the protection of civilians in time of war. In addition, there are many more body of Customary International Laws (CIL) that come into effect when necessary.

Wednesday, 23 December 2015

Payment of Bonus (Amendment) Bill, 2015

The Payment of Bonus (Amendment) Bill, 2015 was introduced in Lok Sabha by the Minister of State for Labour and Employment, Mr. Bandaru Dattatreya, on December 7, 2015.  The Bill seeks to amend the Payment of Bonus Act, 1965. The Bill was passed by Lok Sabha on December 22, 2015 and was subsequently passed by the Rajya Sabha on the very next day, i.e., December 23, 2015

The Payment of Bonus Act, 1965 (the Act) was enacted with a view to provide for the payment of bonus to persons employed in certain establishments on the basis of profits or on the basis of production or productivity and for matters connected therewith. Thereafter, the Act was amended several times and last amended in the year 2007.

The Payment of Bonus Act, 1965 provides for the annual payment of bonus to employees of certain establishments (including factories and establishments employing 20 or more persons).  Under the Act, bonus is calculated on the basis of the employee’s salary and the profits of the establishment.

Highlights of the 2015 Bill
Employees eligible for bonus: The Act mandates payment of bonus to employees’ whose salary or wage is up to Rs 10,000 per month.  The Bill seeks to increase this eligibility limit to Rs 21,000 per month.

Calculation of bonus: The Act provides that the bonus payable to an employee will be in proportion to his or her salary or wage.  However, if an employee’s salary is more than Rs 3,500 per month, for the purposes of calculation of bonus, the salary will be assumed to be Rs 3,500 per month.  The Bill seeks to raise this calculation ceiling to Rs 7,000 per month or the minimum wage notified for the employment under the Minimum Wages Act, 1948 (whichever is higher).

Prior publication of rules: The Act provides that the central government may make rules to implement its provisions.  The Bill seeks to mandate prior publication of such rules in the Official Gazette to allow for more public consultation.

Retrospective effect: The Bill will have retrospective effect and will come into force from April 1, 2015.

Tuesday, 22 December 2015

Original Jurisdiction of the Supreme Court

The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original jurisdiction extends to any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends. Article 131 of the Constitution of India deals with original jurisdiction of the Supreme Court. Article 131 states that

               “Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute—
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more other States on the other; or
(c) between two or more States,
if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.”

In addition, Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them. The Supreme Court has been conferred with power to direct transfer of any civil or criminal case from one State High Court to another State High Court or from a Court subordinate to another State High Court. 

The Supreme Court, if satisfied that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial questions of general importance, may withdraw a case or cases pending before the High Court or High Courts and dispose of all such cases itself. Under the Arbitration and Conciliation Act, 1996, International Commercial Arbitration can also be initiated in the Supreme Court.

Juvenile Justice (Care & Protection of Children) Bill, 2014

The Juvenile Justice (Care and Protection of Children) Bill, 2014 was introduced in Lok Sabha on
August 12, 2014 by the Minister of Women and Child Development, Ms. Maneka Gandhi, to address crimes committed by juveniles, children in need of protection, their rehabilitation and adoption processes, etc. The Bill was referred to the Standing Committee on Human Resource Development (Chairperson: Dr. Satyanarayan Jatiya) on September 22, 2014. The Committee submitted its report on February 25, 2015. The Bill was passed by Lok Sabha on May 7, 2015.

A juvenile or child is a person less than 18 years of age. Under Section 82 of the Indian Penal Code, 1860, the minimum age at which any person can be charged for a crime is seven years. The Juvenile Justice (Care and Protection of Children) Act, 2000 addresses children who are in conflict with law and children in need of care and protection. The Act was brought in to adhere to the United Nations Convention on the Rights of the Child (UNCRC) which was ratified by India in 1992. As a signatory, India is required to undertake all appropriate measures to ensure the rights of children with regard to juvenile justice, care and protection, adoption, etc.

The Bill replaces the Juvenile Justice (Care and Protection of Children) Act, 2000. It addresses children in conflict with law and children in need of care and protection. The Bill permits juveniles between the ages of 16-18 years to be tried as adults for heinous offences. Also, any 16-18 year old, who commits a lesser, i.e., serious offence, may be tried as an adult only if he is apprehended after the age of 21 years.

Main Highlights
The Bill states that 16-18 year old juvenile offenders may be tried as adults in certain cases. The law needs to deter juveniles from committing heinous crimes and safeguard the rights of victims. For crimes like rape and murder it is hard to conceive that the juvenile is not aware of the consequences.
Child Welfare Committees (CWCs) will be constituted in each district to deal with children in need of care and protection. They will be composed of a chairperson and four other members who shall be experts on matters relating to children. At least one of the four members will be a woman.

A child who is found to be in need of care and protection shall be brought before a CWC within 24 hours. Subsequently, a Social Investigation Report is required to be prepared within 15 days. After assessing the report, the CWC may recommend that the child be sent to a children’s home or another facility for long term or temporary care, or declare the child as free for adoption or foster care.

The Central Adoption Resource Agency will frame regulations on adoption. These regulations will be implemented by state and district agencies. Prospective adoptive parents should be physically and financially sound. A single or divorced person may adopt a child. A single male may not adopt a girl child. The Bill also provides for inter-country adoption.

Institutions for child care having a valid registration under the 2000 Act will continue to be recognized. Other institutions are required to be registered within six months of this Bill coming into force. The registration is valid for five years and needs to be renewed. Inspection committees will inspect these institutions and registration may be cancelled if they do not meet the prescribed criteria.

Sunday, 20 December 2015

Protection against ex post facto law

An ex post facto law (Latin for "from after the action" or "after the facts") is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize actions that were legal when committed; it may aggravate a crime by bringing it into a more severe category than it was in when it was committed; it may change the punishment prescribed for a crime, as by adding new penalties or extending sentences; or it may alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed.

Clause (1) of Article 20 of the Constitution of India says that “no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Article 11, para 2 of the Universal Declaration of Human Rights, 1948 provides freedom from ex-post facto laws.

An ex post facto law is a law which imposes penalties retrospectively, i.e., on acts already done and increases the penalty for such acts. The American Constitution also contains a similar provision prohibiting ex post facto laws both by the Central and the State Legislatures. If an act is not an offence at the date of its commission it cannot be an offence at the date subsequent to its commission. The protection afforded by clause (1) of Article 20 of the Indian Constitution is available only against conviction or sentence for a criminal offence under ex post facto law and not against the trial.

The protection of clause (1) of Article 20 cannot be claimed in case of preventive detention, or demanding security from a person. The prohibition is just for conviction and sentence only and not for prosecution and trial under a retrospective law. So, a trial under a procedure different from what it was at the time of the commission of the offence or by a special court constituted after the commission of the offence cannot ipso facto be held unconstitutional. The second part of clause (1) protects a person from ‘a penalty greater than that which he might have been subjected to at the time of the commission of the offence.’

In Kedar Nath v. State of West Bengal [AIR 1953 SC 404], the accused committed an offence in 1947, which under the Act then in force was punishable by imprisonment or fine or both. The Act was amended in 1949 which enhanced the punishment for the same offence by an additional fine equivalent to the amount of money procured by the accused through the offence. 

The Supreme Court held that the enhanced punishment could not be applicable to the act committed by the accused in 1947 and hence, set aside the additional fine imposed by the amended Act. In the criminal trial, the accused can take advantage of the beneficial provisions of the ex-post facto law. The rule of beneficial construction requires that ex post facto law should be applied to mitigate the rigorous (reducing the sentence) of the previous law on the same subject. Such a law is not affected by Article 20(1) of the Constitution.

Friday, 18 December 2015

Social Justice

Etymologically the English word “Justice” derives from the Latin word “Jus” meaning righteousness
or equity. Greek word for justice is ‘Just’ has as many senses as the English word ‘Right’.
While talking about the meaning of social justice, we have to talk about equality, impartiality, liberty, fairness and eradication of poverty, gender, caste and color discrimination. Thus the study on social justice has various meanings and these meanings described through many dimensions. It differs from society to society. But every country should not undermine the teachings of love and compassion, liberty and fraternity, plurality and co-existence of all inhabitants to which our religious scriptures understand essential. It is very difficult to consider the meaning of social justice in nutshell, but the various meanings of social justice have been considered as under:

1.       Intellectually it means the acceptance of every human being as he/she is deserved.

2.       In economic terms the meaning of social justice is the equal distribution of material goods. This term has been the interpretation of social justice in western civilizations from the days of the Bible to that of Marx. This means as Gandhi says, “We should wipe the tears from the face of poorest in the land” this is the Indian attitude regarding economics justice.

3.       In practical or political terms social justice means bringing together the fierce and meek, economically rich and poor, socially and politically high and low on equal food so far as governmental and non-governmental treatment is concerned.

4.       In the present context of India social justice has come to mean improving the lot of downtrodden and weaker sections of the community improving untouchability and the abolishing of social evils.

5.       In broader-sense social justice means equality, liberty and fraternity.

6.       The spiritual dimension of social justice has been enumerated in the Bhagavad-Gita when it says that learned Brahmins, cows, elephants, dogs and chandals should all be treated as equally.

7.       The theological dimension of social justice is: according to the Webster’s Comprehensive Dictionary One of God’s attributes by virtues of which he will equal laws and make just awards.

8.       According to Oxford Dictionary the observance of the divine law, righteousness, states of being righteous or before God.

9.       Meaning of social justice from peace point of view: According to Oxford Dictionary an inferior magistrate appointed to preserve the peace in a country, town or other district and discharge other local magisterial functions.

10.   According to Webster’s Comprehensive Dictionary an inferior magistrate elected or appointed to prevent breaches of the peace within a country or township; to punish violators of the law, and to discharge various other local magisterial duties.

11.   Meaning of social justice in administrative sense is in this sense the administrator of laws task to make the forms and process of justice effective.

No single aspect of social justice can explain its meaning in complete sense. So, all the different aspects of social justice may represent the complete meaning of the term social justice. The above mentioned meanings such as the acceptance of everybody, distribution of marital, for earning to fulfill basic needs, give due respect and equal rights into the eyes of politics and law, provide equality, liberty and fraternity to all, treating every living creature equally, to punish violators of the law, the observance of the divine law, righteousness and before God, the task administrator to make the form of laws and process of justice effective and redeeming poverty, discrimination, inequalities, injustice and social evils is a meaning of the social justice. Social justice is a way of treating everybody with respect and love. Social justice is the end of law. In a just society where there to gives due respect and dignified life to everybody there is the end of law because everything going into a true systematic process. Social justice is the formation of sound, prestigious and meaningful life as well as society. Social justice provides a brave kind of life style. Social justice is generally a reflection of the principles of humanitarian equality and solidarity-principles that are based off of an understanding that values human rights and recognizes the self-worth of an individual. 

Thursday, 17 December 2015

Human Rights Education

No single definition for human rights education will serve the many ways in which people young and
old come to understand, practise and value their rights and respect the rights of others. The Council of Europe’s Human Rights Education Youth Programme defines humanrights education as:
educational programmes and activities that focus on promoting equality in human dignity, in conjunction with programmes such as those promoting intercultural learning, participation and empowerment of minorities.

The telling phrase in this definition is “in conjunction”, for human rights education is rarely undertaken outside of a specific context, ideally based on the needs, preferences, abilities and desires of the learners. The key to defining human rights education is its purpose, for no matter what the methodology or context, its aim is always the development of a culture of human rights. The essential elements of such a culture can provide general objectives for human rights education:

ü  to strengthen respect for human rights and fundamental freedoms
ü  to value human dignity and develop individual self-respect and respect for others
ü  to develop attitudes and behaviours that will lead to respect for the rights of others
ü  to ensure genuine gender equality and equal opportunities for women and men in all spheres
ü  to promote respect, understanding and appreciation of diversity, particularly towards different national, ethnic, religious, linguistic and other minorities and communities
ü  to empower people towards more active citizenship
ü  to promote democracy, development, social justice, communal harmony, solidarity and friendship among people and nations
ü  to further the activities of international institutions aimed at the creation of a culture of peace, based upon universal values of human rights, international understanding, tolerance and nonviolence.

Human rights education for children
Childhood is the ideal time to begin lifelong learning about and for human rights. And the far reaching objectives of general human rights education can be interpreted to fit the world of the young child in more concrete terms of personal experience in the community, in the family and in the personal relationships the child encounters everyday with adults and other children. Human right learning seeks to foster feelings of confidence and social tolerance, the fundamental bases for the whole culture of human rights:

ü  to value self and others
ü  to recognize and respect human rights in everyday life
ü  to understand one’s own basic rights and be able to articulate them
ü  to appreciate and respect differences
ü  to acquire attitudes to address conflicts in non-violent ways that respect the rights of others
ü  to develop children’s confidence in their ability to take action and their skills to defend and promote human rights.

Although they are at the beginning of their formal education, children possess a wealth of knowledge about their world and the people in it. As far as possible, human rights learning should connect with and enlighten what children already know. For example, although they may not use words like justice, equality or discrimination, by the age of seven or eight most children have a strong sense of what is ‘fair’.

Tuesday, 15 December 2015

Sovereignty and the origin of law’s authority

Sovereignty is the location of absolute power in the state. It is both a legal and a political concept. As a legal concept, sovereignty is concerned with the authority of the institutions of the state to make laws. As a political concept, sovereignty concerns the capacity to generate and exercise political power. 

Public law is concerned with both aspects of sovereignty. If the focus is purely on the legal conception, public law will be unable to determine the practical capacity of the institutions of government purporting to enforce laws. For example, an elected government may not have the power to enforce laws if the government has been deposed in a coup. 

If the focus is only on the political conception, public law will not be able to differentiate between legitimate and illegitimate exercises of power under a particular constitutional system. For example, there needs to be a body (such as a court) to test the legitimacy of a new government purporting to exercise power in a state against criteria established in a constitutional document.

A key public law question is how political sovereignty is secured in a state. The legitimacy of a state’s law depends on how the state was formed – through the agreement of the people to form it, through a voluntary handing over of power from one ruler to another, or through an original and unquestionable force. For the French philosopher, Jacques Derrida (1930–2004), it is an original act of force – a political act – that institutes the law. Derrida claimed that violence is at the origin of all law, and that therefore the legitimacy of the law is always in question and it requires constant reassertion and justification to maintain its legitimacy.

An important part of the evolution of government was the separation of church and state. Prior to the formation of modern states, religion provided the public law for many states. European states either aligned themselves with the Catholic Church in Rome or established themselves in opposition to it. Either way, the laws of God and the laws of the state existed together. Human law was derived from divine law through the correct application of reason. Kings expounded the human law, known as natural law, and subjects were bound to follow it. The church was highly influential in affairs of the state – it dictated what was in the common good and determined what were appropriate beliefs. With the emergence of popular sovereignty – that is, rule by the people – church and state became separated. Once the people or their representatives were the highest authority, it was their will that reflected the public good and determined the public law.

The authority of government in most modern states is now premised, at least in theory, on an agreement of its people to institute a binding constitution that allocates power to governing institutions. But the agreement of the people remains forever contingent. Legal sovereignty only secures law-making power in governing institutions to the extent that political support for the constitution remains.

The German political theorist Carl Schmitt argued that power cannot simply be traced to an origin. Instead, he put forward a thesis that the source of true power is revealed at the moment of its exercise in a time of crisis. In other words, the mark of sovereignty is precisely the power to make decisions outside (or create exceptions to) the regular law. 

As Schmitt put it, ‘sovereign is he who decides on the exception’. There is a tendency in public law to assert that all problems of power are resolvable within the law. This is evident in the focus of public law texts, such as this one, on the lawful limits on executive power. But as Schmitt recognised, the law cannot deal with exceptional power which, by definition, is exercised outside the law. Schmitt’s analysis of the ultimate source of power itself contains a paradox. Rulers exercising exceptional power may demonstrate their sovereignty, but the very exercise of sovereign power outside the law will soon undermine public support for their legitimacy, highlighting once again that legal and political sovereignty cannot be sensibly separated and must both be considered in the study of public law.

Sunday, 13 December 2015

Emphasis on Empowerment in Public Law

There are several reasons, both principled and strategic, for emphasizing empowerment in addition to
the traditional emphasis on control in public law.

First, emphasizing the positive role of government leads to a focus on the theoretical justification for the state and its laws. If it is accepted that government has a positive role in upholding the common good, then constraints on government cannot be simply accepted, they must be justified explicitly. This is the idea behind political constitutionalism, which suggests that the constraints on government must predominantly be found in the political system. 

The most fundamental safeguards to maintain the state lie in empowering citizens in their choice of representatives. If the system of choosing the government is truly democratic and representative, then a government so chosen is empowered to pursue the objectives for which it was elected, and there is little scope for courts to question the exercise of power in the fulfillment of the government’s mandate from the people. Throughout this book, there are examples of governments exercising power and the courts being asked to review this exercise of power. 

To maintain national security, advance human rights, or develop a just and coherent Indigenous policy, the people turn to the government for leadership, while simultaneously turning to the courts to constrain the bounds of this government power, or even to require government action where none is forthcoming. As a result, there is an evident tension between empowerment and constraint in the exercise of judicial review.

Second, an emphasis on empowerment turns the focus to the most powerful institution of government in the state, the Executive. Despite its central role in government, executive power is the least clearly defined of the powers of the three branches of government. While administrative law has increased the discussion of the Executive in the law, its focus is on control of the Executive, rather than the depth and the breadth of its power.

Third, key public law doctrines – federalism, separation of powers, and responsible and representative government – are traditionally discussed narrowly as mechanisms of control. A focus on public law as providing for the common good through empowerment as well as constraint allows a broader consideration of these doctrines. Inherent in the separation of powers, for example, can be seen not only a mechanism of constraint, but also a positive allocation of power to promote the common good. And federalism is not only a means for dividing and thereby limiting power, but also a positive way to promote diversity and experimentation within the Commonwealth. We believe that a positive, facilitative role of public law is inherent in its principles, and must not be obscured by placing too heavy a focus on constraint for its own sake.

                               Constraint of government, however, remains a crucial theme in public law. The modern state’s enhanced capacity to govern has included an unprecedented level of economic and social power. States fund and manage large scale, well-organized police and armed forces. Governments in stable democracies have little fear of alternative power bases within the state threatening their supremacy. They are, then, free to govern in the knowledge of their superior strength. The constraints on this power to govern must, therefore, come from constraints on the legal exercise of powers within the system of public law.