Friday, 25 September 2015

Acid attacks in India – Its causes, solution and legal provisions

Acid attack, a vitriol attack or vitriolage, is a form of violent assault defined as the act of throwing acid or a similarly corrosive substance onto the body of another with the intention to disfigure, maim, torture, or kill. It never kills but devastates the sufferer’s life mentally, morally, physically and financially.
Acid attacks have a catastrophic effect on human flesh and vital organs. In most of these attacks, hydrochloric and sulphuric acid are used. These corrosive substances cause the skin tissue to melt. The bones of the victims become exposed and, sometimes, the acid dissolves the bones too. Furthermore, if acid enters the eyes of the victim during an attack, as is common in acid attack cases, it damages these vital organs permanently. Many acid attack survivors have lost one or both eyes. As a result of disfigurement and disability, the victims are permanently debilitated and are forced to give up their public lives, work and education.

Main causes are of acid attacks are:
1.  Family disputes; domestic violence; relationship conflicts
2.  Refusal of indecent proposals or unacceptable propositions
3.  Land or money disputes; business conflicts
4.  Vengefulness and status jealousy
5.  Suspicion of infidelity
6.  Theft or robbery
7.  Mistaken identity; accidental; collateral
8.  Sex crimes, rape, and sodomy

Law in India relating to acid attacks
The law relating to acid attacks was inserted in Indian Penal Code and Code of Criminal Procedure by The Criminal Law (Amendment) Act, 2013. Provisions inserted by it are:-

Section 326A of Indian Penal Code, 1860 - Voluntarily causing grievous hurt by use of acid, etc. -
Whoever causes permanent or partial damage or deformity to, or burns or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.

Section 326B of Indian Penal Code, 1860 -  Voluntarily throwing or attempting to throw acid - Whoever throws or attempts to throw acid on any person or attempts to administer acid to any person, or attempts to use any other means, with the intention of causing permanent or partial damage or deformity or burns or maiming or disfigurement or disability or grievous hurt to that person, shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.
Explanation 1 —For the purposes of section 326A and this section, “acid” includes any substance which has acidic or corrosive character or burning nature, that is capable of causing bodily injury leading to scars or disfigurement or temporary or permanent disability.
Explanation 2 — For the purposes of section 326A and this section, permanent or partial damage or deformity shall not be required to be irreversible.

Section 357B of Code of Criminal Procedure, 1973 - The compensation payable by the State Government under section 357A shall be in addition to the payment of fine to the victim under section 326A or section 376D of the Indian Penal Code.

Section 357C of Code of Criminal Procedure, 1973 - All hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, shall immediately, provide the first-aid or medical treatment, free of cost, to the victims of any offence covered under section 326A, 376, 376A, 376B, 376C, 376D or section 376E of the Indian Penal Code and shall immediately inform the police of such incident.
Also as per newly added seventh clause to section 100 of Indian Penal Code the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailant in case of an act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.

The Solution:
To eradicate acid violence, governments must address its root causes: gender inequality and discrimination, the availability of acid, and the impunity of perpetrators.
In furtherance of their duty to exercise due diligence to prevent acid violence, governments should:
1. Enact criminal laws that specifically address acid violence and effectively regulate the production, distribution, use, sale, and handling of acid;
2. Effectively enforce and implement laws designed to deter acid violence; and
3. Provide redress to victims, including compensation for healthcare costs.

Role of Companies: In furtherance of their emerging duty to exercise due diligence to minimize the negative human rights impacts of their activities, companies that produce, distribute, use, or otherwise handle acid should:
1. Assess the ways in which they can reduce the negative human rights impacts of their activities; and
2. Support industry and government efforts to regulate the safe-handling, storage, labeling, transfer, and disposal of acid by manufacturers, distributors, and other business and individual users of acid in order to deter the unauthorized use of acid.

Sunday, 20 September 2015

Constitution of the 21st Law Commission of India

Law Commission of India is an executive body established by an order of the Government of India. Its major function is to work for legal reform. Its membership primarily comprises legal experts, who are entrusted a mandate by the Government. The Commission is established for a fixed tenure and works as an advisory body to the Ministry of Law and Justice.

The Union Cabinet chaired by the Prime Minister Narendra Modi, has given its approval on the Constitution of the 21st Law Commission of India, for a period of three years w.e.f. 1 September 2015 to 31 August, 2018.

The 21st Law Commission will consist of:
  1. a full-time Chairperson;
  2. four full-time Members (including a Member-Secretary);
  3. Secretary, Department of Legal Affairs as ex officio Member;
  4. Secretary, Legislative Department as ex officio Member; and
  5. not more than five part-time Members.
The Commission was originally constituted in 1955 and is re-constituted every three years. The various Law Commissions have been able to make important contribution towards the progressive development and codification of laws of the country. Law Commissions have so far submitted 262 reports.
The term of the 20th Law Commission headed by former Delhi High Court Chief Justice A P Shah ended on 31 March 2015. Other prominent members of the commission included Justice Usha Mehra, Former Judge, Delhi High Court and Prof. (Dr.) Mool Chand Sharma, Former Vice-Chancellor, Central University of Haryana.
The task entrusted upon the Law Commission is to undertake research in law and review of existing laws in India for making reforms therein and enacting new legislations either on a reference made to it by the Central Government or suo-motu.
Commission also has to undertake studies and research for bringing reforms in the justice delivery systems for elimination of delay in procedures, speedy disposal of cases, reduction in cost of litigation etc.

The other functions of the Law Commission shall, inter-alia, include:

  1. identification of laws which are no longer relevant and recommending for the repeal of obsolete and unnecessary enactments;
  2. suggesting enactment of new legislations as may be necessary to implement the Directive Principles and to attain the objectives set out in the Preamble of the Constitution;
  3. considering and conveying to the Government its views on any subject relating to law and judicial administration that may be specifically referred to it by the Government through Ministry of Law and Justice (Department of Legal Affairs);
  4. considering the requests for providing research to any foreign countries as may be referred to it by the Government through Ministry of Law & Justice (Department of Legal Affairs);
  5. preparing and submitting to the Central Government, from time to time, reports on all issues, matters, studies and research undertaken by it and recommending in such reports for effective measures to be taken by the Union or any State; and
  6. performing such other functions as may be assigned to it by the Central Government from time to time.

Wednesday, 16 September 2015

Solitary Confinement in India

Solitary confinement is a form of imprisonment in which an inmate is isolated from any human contact, with the exception of members of prison staff.  In India, maximum period of solitary confinement is 3 months and it shall not exceed 14 days at a time. Relevant provisions of solitary confinement are sections 73 and 74 of Indian Penal Code, 1860.

Section 73. Solitary confinement
Whenever any person is convicted of an offence for which under this Code the Court has power to sentence him to rigorous imprisonment, the Court may, by its sentence, order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sen­tenced, not exceeding three months in the whole, according to the following scale, that is to say—
a time not exceeding one month if the term of imprisonment shall not exceed six months;
a time not exceeding two months if the term of imprisonment shall exceed six months and shall not exceed one year;
a time not exceeding three months if the term of imprisonment shall exceed one year.
Section 74. Limit of solitary confinement
In executing a sentence of solitary confinement, such confinement shall in no case exceed fourteen days at a time, with intervals between the periods of solitary confinement of not less duration than such periods: and when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such periods.
Landmark case laws
Unni Krishnan & Ors. v. State of Andhra Pradesh & Ors., 1993 SC
As per Supreme Court “Right against solitary confinement” is one of the rights that falls under Article 21 (Right to Life) of the Constitution.
Sunil Batra v. Delhi Administration, 1979 SC
Supreme Court held that solitary or single cell confinement prior to rejection of the mercy petition by the President is unconstitutional.

Constitutional arguments against solitary confinement
1. It violates the basic concept of human dignity
2. It denies basic human rights
3. It causes significant mental and physical pain and suffering
4. It is unnecessary in many cases
Arguments in favour of solitary confinement
1. It is necessary to prevent cases of suicides
2. It is an additional measure of protection of an inmate from other inmates
3. In cases of violations of prison regulations, it can be given to some extent

Sunday, 13 September 2015

Death penalty under Indian Penal Code


Death penalty is one of the five punishments that are recognized by the Indian Penal Code, 1860. As per section 53 of Indian Penal Code, following are the punishments:
(i)                  Death
(ii)                Imprisonment for life
(iii)               Other imprisonment (Simple or rigorous)
(iv)              Forfeiture of property
(v)                Fine
Provisions under Indian Penal Code where capital punishment can be given:

Section 121 - Waging, or attempting to wage war, or abetting waging of war, against the Government of India
Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine.

Section 132 - Abetment of mutiny, if mutiny is committed in consequence thereof
Whoever abets the committing of mutiny by an officer, soldier, sailor or airman in the Army, Navy or Air Force of the Government of India, shall, if mutiny be committed in consequence of that abetment, be punished with death or with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 194 - Giving or fabricating false evidence with intent to procure conviction of capital offence
Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which is capital by the law for the time being in force in India shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine;
if innocent person be thereby convicted and executed.— and if an innocent person be convicted and executed in consequence of such false evidence, the person who gives such false evidence shall be punished either with death or the punishment hereinbefore described.

Section 302 - Punishment for murder
Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.

*Section 303 - Punishment for murder by life-convict
Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death.
* Section 303 struck down by the Supreme Court in Mithu v. State of Punjab, AIR 1983 SC 473

Section 305 - Abetment of suicide of child or insane person
If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine.

Section 307 - Attempt to murder
Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life], or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.—When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.

1[Section 364A -  Kidnapping for ransom, etc.
Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organization or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine].
1. Ins. by Act 42 of 1993, sec. 2 (w.e.f. 22-5-1993).
*In Vikram Singh @ Vicky & Anr. V. Union of India, decided on 21-8-2015, Supreme Court upheld the constitutional validity of sec. 364A

Section 396 - Dacoity with murder
If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for term which may extend to ten years, and shall also be liable to fine.

1[Section 376A - Punishment for causing death or resulting in persistent vegetative state of victim
Whoever, commits an offence punishable under sub-section (1) or subsection (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.]
1. Subs. by Act 13 of 2013, sec. 9, for section 376A (w.e.f. 3-2-2013)

1[376E - Punishment for repeat offenders
Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 376D and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.’]
1. Ins. by Act 13 of 2013, sec. 9 (w.e.f. 3-2-2013)

Section 396 - Dacoity with murder

If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for term which may extend to ten years, and shall also be liable to fine.

Friday, 11 September 2015

Maintenance of parents and elderly people


When a child is born it is the duty of parents to take care of the child. On the same footing later on it is the duty of the children to take care of their parents. Preventive destitution in society is one of the major objectives of social legislation. Thus, section 125 of Code of Criminal Procedure, 1973 was enacted. It casts a duty upon children to maintain their parents. Code of Criminal Procedure is a secular law and applies on all persons irrespective of their religion.


Relevant provision of Code of Criminal Procedure is section 125(1)(d)
“If any person having sufficient means neglects or refuses to maintain-  his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.”

Important Judgments
1. Dr. Vijaya Manohar Arbat v. Kashirao Rajaram Sawai & anr., 1987 SC
Supreme Court held that “Daughter is also liable to pay maintenance to parents”.
2. Kirtikant D. Vadodaria v. State of Gujrat, 1996 SC
Supreme Court held that “Step-mother can claim maintenance”.
3. Baban @ Madhav Dagadu Dange v. Parvatibai Dagadu Dange, 1978 Bombay HC
Bombay HC held that “adoptive mother can claim maintenance”
4. Pandurang Bhaurao Dabhade v. Baburao Bhaurao Dabhade and another, 1980 Bombay HC
Bombay HC said that “fulfillment of parental obligation is not a pre-condition to claim maintenance”.

Hindu Adoptions and Maintenance Act, 1956
Section 20 of Hindu Adoptions and Maintenance Act, 1956 also puts a duty on children to maintain their aged and infirm parents. Under this section “parent” includes a childless step-mother. However this section applies on Hindus only and is not secular like Code of Criminal Procedure.

Maintenance and Welfare of Parents and Senior Citizens Act, 2007
However, section 125 of Code of Criminal Procedure is silent on maintenance of senior citizens as it only provides maintenance to parents. So this means that people who are childless and who despite having heirs to their property cannot seek refuge and remedy under Code of Criminal Procedure. Keeping in view this problem Government enacted Maintenance and Welfare of Parents and Senior Citizens Act, 2007. As per section 4 of this Act, a childless senior citizen can claim maintenance from the heirs of his property. This Act casts obligations on children to maintain their parents/grandparents and also the relative of the senior citizen to maintain such senior citizens. The main attraction of this Act is that there are provisions to protect the life and property of such persons. This Act also provides setting up of old age homes for providing maintenance to the indigent senior citizens and parents.

Conclusion

Taking care and providing maintenance to parents is not only a legal duty but also moral duty of the children. Apart from biological father and mother, now even adoptive mother and step-mother are also entitled to claim maintenance. The parliament and Courts are taking care of the rights of the parents and elderly people. It is evident from the recent judicial decisions that the Indian courts have been progressively liberal in deciding cases pertaining to maintenance. 

Wednesday, 9 September 2015

Current Scenario of Reservation in India.. Advantages & Disadvantages

"It is against the fundamental principles of humanity, it is against the dictates of reason that a man should, by reason of birth, be denied or given extra privileges" - Mahatma Gandhi

Reservation in a process of reserving a certain percentage of seats (vacancies) in government institutions for members of backward and under-represented communities (defined primarily by caste and tribe). Reservation is a form of quota-based affirmative action and is governed by constitutional laws, statutory laws, and local rules and regulations.

                                                                                                                         
                                                                                            
                                                                                                Commissions on reservation
Adhering to Article 340 of the Constitution of India, the First Backward Classes Commission was set up by a presidential order on 29 January 1953 under the chairmanship of Kaka Kalelkar. The commission was named as Kalelkar Commission. However, this report was rejected by the Central government on the ground that it had not applied any objective tests for identifying the Backward Class. Thus there was a need of second backward classes Commission. Then, Mandal Commission was established in India in 1979 by the Janata Party government under PM Morarji Desai with a mandate to "identify the socially or educationally backward”. It was headed by Indian parliamentarian B.P. Mandal. In 1980, the commission's report affirmed the affirmative action practice under Indian law whereby members of lower castes (known as Other Backward Classes (OBC), Scheduled Castes (SC) and Scheduled Tribes (ST)) were given exclusive access to a certain portion of government jobs and slots in public universities, and recommended changes to these quotas, increasing them by 27% to 50%. This report was highly criticized and resulted in massive protests all over the country with incidents of self-immolations also.

Constitutional Provisions
Article 15(4) and 16(4) of the Constitution enabled both the state and Central Governments to reserve seats in public services for the members of the SC and ST, thereby, enshrining impartiality of opportunity in matters of civic service.
Article 15(4) states that: “Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”
Article 16(4 ) states that: “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
Article 16(4 A) states that: “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. (Constitutional 77th Amendment, - Act, 1995).
Article 16 (4 B) states that: “Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year” (Constitutional 81st Amendment, - Act, 2000).

Important Judgments relating to reservation:
State of Madras v. Champakam Dorairajan (AIR 1951 SC 226) - Court pronounced that caste based reservations as per Communal Award violates Article 15(1).
In the cases of General Manager, S. Rly. v. Rangachari, AIR 1962 SC 36; State of Punjab v. Hiralal, 1970(3) SCC 567; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India; (1981) 1 SCC 246 it was held that Reservation of appointments or posts under Article 16(4) included promotions.
Indira Sawhney & Ors. v. Union of India. AIR 1993 SC 477 - Supreme Court upheld implementation of separate reservation for other backward classes in central government jobs.
S. Vinodkumar Vs. Union of India, 1996 6 SCC 580 held that relaxation of qualifying marks and standard of evaluation in matters of reservation in promotion was not permissible

Arguments against reservation
1) It is going to kill meritocracy, and hence will destroy India's growing image as a technology hub.
2) It is dividing India into caste lines which our freedom fighters and social reformers fought so hard to eliminate.
3) It is against the fundamental right to equality as safeguarded by the Constitution of India.
4) The benefits of reservation have been denied to really deserving people by the rich and powerful in their own classes.
5) Reservation is just a populist measure used by politicians for electoral gains.
6) As a consequence of legislating to provide reservations on the basis of religion, religious minorities in all government education institutions will be introduced which is contrary to the ideas of secularism, and is a form of anti-discrimination on the basis of religion.
7) Most of the times, only economically sound people from the so-called lower castes will make use of most of the reserved seats, thus counteracting the spirit of reservations.
8) The quality of the elite institutes may go down, because merit is severely being compromised by reserving seats for certain caste-based communities.
9) The reservation policy is creating huge unrest in the society. Providing quotas on the basis of caste and not on the basis of merit will deter the determination of many educated and deserving students of India.

Arguments in favor of Reservation
1) Reservation allows the backward classes a chance of improving their lives and status in society and getting meaningful employment.
2) Backward classes also get representation in various aspects of society and decision making, something that has been denied to them for a long time.

Conclusion:

Reservation must be given to the needy people. The rich persons in SC/ST community must not enjoy the fruits of reservation. The benefit of reservation must be given for first 2 children. Financially poor persons must be given priority. Now day’s politicians are playing a major role in reservation policy. The reservation policy was only for 10 years after the independence, for upliftment of SC and ST but till now it is continue and no one has taken any step to amend it or revise it or to change it. The reason behind this is the population of SC and ST in country. Nearly 33% voting is done by SC and ST so now if they make any change in the reservation policy against the SC and ST then they have to suffer a lot for the same. So they are not taking any steps against the reservation policy.