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There are three things which are interrelated to each other for their calculation
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Mob Lynching, even though is a new glossary in Indian scenario, but has been coming from time to time through the world society for centuries. in India cow is considered a sacred and a holy animal and is worshipped at various places and to kill which is considered a sin. Most of the states have enacted laws to prohibit slaughter of cows. There have been many incidents about mob lynching in India. Considering the year 2017, In the first six months, 18 cow-terror attacks were reported which is 75% of the 2016 figure according to a report by IndiaSpend. The majority of the animals related mob assaults were accounted highest in states like Uttar Pradesh, Karnataka, Haryana, Gujrat, Delhi, Rajasthan and Madhya Pradesh.
Throwing some light on the laws that exists for mob lynching but however there is no present codified law against lynching in India as such, however, Sub Section (a) of Section 223 of the Criminal Procedure Code, 1973 contains the provision for persons being charged for an offense jointly when they are accused for a similar offense committed over the span of a same transaction which is relevant on at least two individuals.
Presently there is no special provision or law to punish mob lynching or hate violence in India but there are some other provisions related to such violence. The Code of Criminal Procedure (CrPC) under Section 223(a) provides that the mob involved in same offence in the same act can be tried together. The Indian Penal Code (IPC), 1860 also has some proximate sections related to hate speech and hate crimes under Sections 153A (promoting enmity between various groups on grounds of religion, race, place of birth, residence, language and so forth and doing acts biased for upkeep of harmony), 153B (imputation, assertions biased to national integration), 505(statements conducing to public mischief) but as seen in majority of the cases, these sections weren’t imposed upon the perpetrators and only sections against individuals such as Section 302(punishment for murder), 307(attempt to murder), 323(punishment for causing hurt), 325(punishment for causing grievous hurt) etc. are applied because of which the crime is seen as a n offence against individual and not the community. Such an approach is not justified as incidents like mob lynching are seen from communal lenses and are usually targeted against a certain minority, caste, religion, gender etc. and is a matter of public order and not merely an offence against a person. The offence of lynching usually takes place as an organized hate crime against a community so it must be considered as a heinous offence.
Looking at the statistical data of the year 2017, In the first six months of 2017, 18 cow-terror attacks were reported which is 75% of the 2016 figure’ according to a report by IndiaSpend. Most of the cow-related mob attacks were reported highest in states like Uttar Pradesh, Karnataka, Haryana, Gujrat, Delhi, Rajasthan and Madhya Pradesh.
There is no present codified law against lynching in India as such, in any case, Sub Section (a) of Section 223 of the Criminal Procedure Code, 1973 contains the provision for persons being charged for an offense jointly when they are accused of the same offence committed in the course of the same transaction which is applicable on two or more people.
Due to increasing number of incidents of mob lynching in India, a three-judge Bench led by Hon’ble Chief Justice of India, Dipak Mishra condemned recent incidents of lynching and mob attacks against Dalits and minority community citizens of the nation on 17th July 2018 and asked the Parliament to pass a law considering lynching as an offence independently and decide punishment regarding the same.
In 2018, the Supreme Court condemned the increasing number of incidents of mob lynching across the country, calling them “horrendous acts of mobocracy” and had then asked Parliament to make lynching a separate offence.
Due to increasing number of incidents of mob lynching in the country the Supreme Court had directed the Centre to draft a new legislation to effectively deal with incidents of mob lynching. It had moreover energized the central and state governments to take preventive measures to control the spread of fake messages via web-based networking media stages, which can induce a mob to lynch.
The central government has set up two high-level committees to suggest ways and legal framework to effectively deal with incidents of mob violence and lynching. It was formed in 2018 and one of the committees is being headed by Union Home Minister Rajnath Singh (now headed by the present home minister Amit Shah) and the other by Union Home Secretary Rajiv Gauba. The secretaries of the justice, legal affairs, legislative, and social justice and empowerment departments are members of the committee.
The government is also setting up a Group of Ministers (GoM) to deliberate into the recommendations of the high-level committee. It would comprise of would constitute of minister of external affairs, minister of road transport highways and shipping, minister of water resources, minister of rural development, minister of law and justice, and minister of social justice and empowerment.
The analysis of the research paper on the topic –“Mob Lynching in India” is as follows:
According to the research there has been a sudden increase in the number of incidents on mob lynching happening in India in the last few years. The last five years have seen mob lynching across India. The main reason or the factors that are driving to violence includes cow protection movements and penetration of social media. The effects of these factors are significant with a near collapse of the rural cattle trade and worsening law and order. Other than this, there has been many other factors affecting. Regardless of the danger to peace, political response has either been quieted or has upheld vigilante activity. Other than the factors mentioned above, there can be many other reasons for the increasing number of incidents of mob lynching in the country: -
1. People are losing their faith on law and order machinery therefore they are taking laws in their hands for instant justice.
2. Police might find it difficult to register cases against big crowd, and due to this some people get the advantage of this and form big crowd to support this action.
3. In India people are very emotive on the sensitive issues. It is very easy to flare them up.
4. There has always been the problem of politics in India, so in the cases of mob lynching there can be the possibility of political pressure on the police that force them to go slow on some cases that ultimately leads to delaying justice to the innocent person.
‘The law, the mightiest sovereign in a civilized society’
India has seen various lynching and crowd assaults report from different pieces of the nation as of late, the majority of which is as a result of response to the beef ban order of the government in the nation. There is no uncertainty that the lynching exercises dependent on character discriminate against a whole community which abuses Article 14 and Article 15 of the Constitution of India. Given the circumstance of mob assaults in the nation by and by there is a need for separate legislation and strict implementation procedures to check the attacks and punish the wrongdoers.
Lynching and vigilante attacks have become the instrument of choice for violence against minorities – particularly Muslims. Vigilante attacks and lynchings are different to „communal riots‟. These are episodic acts of violence, of a localised kind, not mass; targeting individuals or groups of individuals, led mostly by decentralised groups, acting as vigilantes, affiliated to violent anti-minority groups, in some cases, acting with the authority of the state.
Lynchings have taken place with regularity recently, threatening to grow into a “national epidemic”. As a result, “Indian Muslims are learning to endure an intense sense of foreboding – a lurking, unnamed, unspoken fear - the persisting danger of imminent violence, of being vulnerable to attack anywhere - on a public road, in a bus or train, in a marketplace, even in their homes - only for looking and being Muslim”. (Kaarwan-e-Mohabbat). There is a political interference in India in almost every issue that happens in India. Every political leader wants to use the issue in their favor and due their interference they might force police to go slow on some cases or might even stop the investigation at all leading to delayed justice. As the expression goes- "JUSTICE DELAYED IS JUSTICE DENIED".
“Defeat should never be a source of discouragement but rather a fresh stimulus.”
The title is a little self-evident here. Does anyone want to argue that losing a Court case is a good feeling? As highly motivated, slightly egotistical, and generally well-informed people, lawyers hate losing a court case. It’s especially annoying when you felt you had a persuasive argument.
Defeat in a case can be classified as a professional defeat or a moral defeat. The difference between them is that professional defeat is due to relatively weakened performance of a person as compared to the other. Moral defeat is the one when you are defeated as a result of your internal conflict of values, when person as a lawyer fights for the wrong cause and fails in the case. The method to cope up with the professional defeat is relatively easy as it involves the analysis of the strength and weakness of an individual in the performance during the case taking the performance of the other party as the benchmark. The positive of both self and opponent can be conserved while the weaknesses of oneself can be worked upon and preserved as a valuable lesson for the future. Losing any case can be quite disheartening and it can be even more disheartening for those lawyers who handle matters on a contingent basis with no recovery, no fee and there can be a significant financial impact. The lawyer spends all that time and trouble, not to mention out-of-pocket costs, but comes up empty-handed.
The bitter truth in the life of a lawyer is that no matter how good lawyer you are but once in life you have to face the situation where you have to accept defeat and find a way to move on it. Losing is always hard. There is no way around it. As said that if you try cases, you are going to lose some and talking about human behaviour – A person truly learn more from losses than victories. Perspective is a key to dealing with adversity, including those times when you lose a case, be it large or small. It is very important to know that a lawyer either win or lose the motion; he either win or lose the trial; a lawyer either win or lose on appeal; snag or don’t snag the prospective client; they keep or lose the existing client. The client takes the chances, but a lawyer takes the lumps if the outcome is not what the client expected. The moral defeat requires immense effort and introspection. Moral defeat in walls conflict in individual values towards work, life and worldview. The moral defeat can arise as a result of individuals failure to understand correctly the ethical issues involved in the situation and wrongly taking up the case which was Immoral or unethical in character from the start. Moral defeat may also rise as a result of half-hearted efforts of the individual towards the case. It includes not only a professional crisis but the moral crisis in the form of individuals loyalty towards his work or conduct of the case. Moral defeat may also involve fighting for the wrong cause which is the generally believed by the society as wrong. For example, fighting a case in favour of a person accused of mob lynching with solid evidence against him any form of videotape already public. The wrong precedent chosen may not only jeopardise the individual current case but also future prospects of the career. The moral defeat is realised when individual faces guilt or regret after taking in action based on his judgement. Individual realises the decision he or she has taken are not consistent with what he believed to be true or what in general is, considered true by the society for example the value of compassion equality etc, the cure to handle moral defeat lies in the realisation and realignment of individuals values and behavioural actions. It requires deep introspection and ability to understand the minute differences in behaviour which are intangible in nature and difficult to understand. It can be done by reading about the Great personalities who mastered these values like Gandhi, Buddha, and Mahavira. It can also be made easier under the influence of a Guru who may be a friend philosopher guide parents anybody else. But above all it requires and individuals on realisation of his mistakes of choosing wrong over right and half-hearted effort in instead of full hard work and complacency in doing one's job. The key to handle a moral defeat is to go to the spiritual way with meditation and dedication and thereby eliminating the grief and crisis of conscience in one’s past behaviour and reorienting it, towards the conformist behaviour which will give happiness instead of guilt.
No lawyer can be successful if he doesn’t learn from the mistakes made in the cases that he lost and ignore them or if he did not make any efforts to overcome those problems in the cases that they lost. Many successful lawyers like Ram Jethmalani, Fali S. Nariman, Soli Sorabjee, Harish Salve and many others definitely have lost many cases in their lives and stood to them to make them right in their future and paved their way to become a successful lawyer by overcoming the mistakes. Talking about failure is learning what went wrong and how to do better next time. The primal fear of lawyer as a professional is the fear of losing that can lead to just less than best as lawyers and human beings should be. Many trial lawyers have such a deep-seated fear of losing that it becomes almost impossible to acknowledge that emotion. The fear of losing is really the fear of failure.
Some lawyers can’t handle their defeat in a case so sometimes they deal with the failures by drinking excessively, taking drugs, throwing themselves into load of work, taking feelings out on others or by withdrawing emotionally. A loss can sometimes make a lawyer feel their lives are failures. It is no secret that the high rates of depression and suicide among lawyers is caused in part by the terrific pressure put on us by our own fear of failure and our reaction to losing. It is impossible to be a lawyer and not experience losing. How we react to losing is important. Winston Churchill once stated, “Success is never final, failure is never fatal, courage is what counts.” This is not a cliché. The problem that many trial lawyers have is that the fear of losing becomes so pervasive that they lose the courage to litigate the difficult case. There are various ways and successful guidelines from the best lawyers that can help the trial lawyers or beginners to overcome the fear of losing the case.
To continue to grow and develop as lawyers, a lawyer must learn from his losses. An important lesson a lawyer should learn from losing is perseverance. He needs to prepare to fight the next battle. He cannot allow losing to become such a huge monster that it frightens him from trying the next tough case. Otherwise, his value as a lawyer and as a person is diminished. A lawyer must always be willing to take the next risk and try again. Another lesson he can learn from the losses is humility. Every time there is a win, a lawyer gets a little fuller of himself. He thinks he is the best. His ego grows, and he become more self-centred. Humility is not a term often used to describe trial lawyers. It is so easy to get involved in the cases that come to believe that the win achieved is his win and not his client’s. A lawyer love nothing better than to preen himself and talk about his big wins.
Acceptance of mistakes by an individual is considered as a virtue such as the great man like Gandhi but that's not where you stop. Accepting defeat without creating an emotion of improvement within self is the qualities of a loser. So, the big thing is to learn and improve your skills infighting the case or other areas which contributed. Also show step by step process analysis any form of examining the propositions before during and after the case like examination of the first party or the plaintiff, etc.
By accepting improving over the skills one can assure of better results in future. This will serve as an incentive to improve. Also, it will hold onto the great success stories which started or faced failures in between which depicts that life is full of ups and downs and failure is a part of both professional as well as personal life. Remove the and uneasiness after losing the case and try to spend time with my family and friends and regain my confidence by looking at the achievements and the great targets that have been set. Overtime the discomfort and dissonance caused by the defeat in a case will gradually fade away, and will be back to a professional life, reenergised, reinvented and improved person because as said that failures happen all the time. It happens every day in practice. What makes you better is how you react to it.
Therefore, it will be right to say the defeat is not an end but the beginning of the new process of learning and improving and not be disheartened and grief over the laws of the case but will add value to the skills to reach greater heights in future. Winners are not necessarily the people who win the case. Being a true winner has to do with values. Winners have integrity and courage. Winners sometimes lose cases. Losers, on the other hand, have arrogance when they win and bitterness when they lose. The only real mistake is the one from which we learn nothing.
Lord Cornwallis was the famous British General, who was sent to India in 1786 with the charge of the land settlement policy of the Government. The governor-general ship of Lord Cornwallis which extended from 1786 to 1793. The Governor Generalship of Lord Cornwallis which extended from 1786 to creative constitutes a very remarkable and a highly creative period in Indian Legal History.
He introduced for the first time the principle of administration according to law. The Adalat System left behind by him won praise and encomium from all quarters. The system introduced envisaged a division of revenue and judicial functions and their vesting in distinct functionaries. Cornwallis introduced changes in the judicial system thrice: first, in 1787; then in 1790 and, finally, in 1793. By the time he left India, he had thoroughly reorganized the judicial system, both civil and criminal, in Bengal, Bihar and Orissa and placed it on an entirely new basis. He introduced for the first time the principle of administration according to law. The Adalat system left behind by him won praise and encomium. It enjoyed such a high place in the esteem of the people as well as the administrators that it was adopted as the model for the judicial systems introduced later in the Provinces of Madras and Bombay.
After warren Hastings, Lord Cornwallis was another Governor-General who introduced various changes in judicial system of India. As a Governor-General he introduced changes in judicial system in 1787, 1790 1793 this are-
a) The Plan of 1787
b) The Plan of 1790
c) The Plan of 1793
INDIAN LEGAL SYSTEM
The Governor Generalship of Lord Cornwallis which extended from 1786 to creative constitutes a very remarkable and a highly creative period in Indian Legal History.
Cornwallis received critical assistance from others in his effort to introduce legal reforms. William Jones, an expert on languages, translated existing Hindu and Muslim penal codes into English so that they could be evaluated and applied by English-speaking judges.
Cornwallis began in 1787 by giving limited criminal judicial powers to the company's revenue collectors, who already also served as civil magistrates. He also required them to report regularly on detention times and sentences given.
In 1790 the company took over the administration of justice from the Nawab, and Cornwallis introduced a system of circuit courts with a superior Judges were drawn from the company's European employees. These reforms also included changes to the penal codes to begin harmonizing the different codes then in use.
Of the latter, he wrote "as on account of their colour& extraction they are considered in this country as inferior to Europeans, I am of opinion that those of them who possess the best abilities could not command that authority and respect which is necessary in the due discharge of the duty of an officer." In 1791 he issued an order that "No person, the son of a Native Indian, shall henceforward be appointed by this Court to Employment in the Civil, Military, or Marine Service of the Company."
JUDICIAL PLANS OF LORD CORNWALLIS
In the year 1786, Lord Cornwallis became the Governor-General of the Company at Calcutta. During his tenure he made several reforms in Judicial Administration. These reforms were made in 3 stages in 1787, 1790 and 1793.
Plan of 1787
✓ All revenue and judicial functions were vested with the Collector.
✓ The Collector would collect the revenue and decide all disputes relating to collection of land revenue in his district.
✓ The ‘Mal Adalat’ or ‘revenue court’ was his office for revenue matters.
✓ An appeal against the decisions of the Collector went to the Board of Revenue, and a second appeal lay with the Governor-General and Council.
✓ ‘Diwani Adalat’ was established for deciding civil disputes in each district, and the Collector was its sole judge.
✓ Appeals from the Diwani Adalat went to the Sadar Diwani Adalat in matters worth Rs.1000 or more, and a further second appeal was allowed to the King-in-Council in matters exceeding £5000 in value.
✓ A Registrar was appointed for the assistance of the Collector and heard cases up to Rs. 200 in value upon being referred to by the Collector.
The magistrate got power to hear the cases against the Englishmen who committed crimes against Indians, in this case magistrate made inquiry and he felt that there is ground for trial, he would send the Englishman accused to the Calcutta for trial and if Indian complainant was poor, the government paid all the expenses of travelling to Calcutta. As magistrate, the collector was to arrest criminals and try and punish petty offences by corporal punishment not exceeding 15 strokes, or imprisonment not exceeding 15 days.
PLAN OF 1790
✓ Three types of courts in decreasing order of hierarchy were established in the Mofussil area: the Sadar Nizamat Adalat, the Circuit Court and the Court of the District Magistrate.
✓ The District Magistrate could arrest criminals, took evidence against them and then committed them to the Circuit Court for trial.
✓ He could however punish the criminal upto 15 Rattans or 15 days of imprisonment in small crimes.
✓ He had to maintain all records and charts to be examined by the Circuit Courts about the work done and people awaiting trial.
✓ The court visited every district twice a year.
✓ It was assisted by a Kazi and a Mufti for expounding the law and proposing Fatwa.
✓ The court gave its punishment on these FatFatwas✓ Blood Money was abolished.
✓ Cruel punishments were abolished.
✓ Salaries and allowances of the judges and native officers was increased in order to check corruption.
In due course of time, Cornwallis came to realise that there was no class of men who the government should watch with greater care and vigilance, and on whom the Regulations should have stricter control than the collectors. With time the work load court of circuits increase. There was no provision as such to supervise the collectors, who got unlimited powers. Even the prosecution witness had to come twice, once when the magistrate held an inquiry at the time of arrest of the accused and once again when the trial was held by the Circuit Courts. This thus caused a lot of inconvenience on the poor people, and also increased load for the Circuit Courts.
Cornwallis understood the defects of the above schemes and He introduced the plan of 1793.
PLAN OF 1793
✓ The judicial powers of the Collector were divested, and he was left only with the power to collect land revenue.
✓ By Regulation III, section 10, all executive officers, including the Collector were made amenable to the jurisdiction of the courts personally.
✓ The liability of the government for the wrongs committed by itself and its officers during the course of their duties was for the first time recognised.
✓ The Court fee which had been imposed by Warren Hastings was abolished.
Cornwallis did everything on the structural and procedural side but he could not do much to reform the substantive law, particularly the criminal law which was based on the Muslim law and suffered from a number of defects. Also, Indians were excluded from the judiciary except at the level of Munsifs. This showed the distrust in Indians and led to dissatisfaction amongst them.
The judicial plans of Lord Cornwallis were the most logical, comprehensive, well planned and foresighted. Many of the defects that existed in earlier schemes disappeared and the courts functioned with greater efficiency, independence and judicious outlook as for the first time ‘Rule of Law’ was established in the Mofussil area. The plan was based on sound principles and the intention was to deliver justice to the people free from favour or fear.
Also though the entire period of the governor-general ship of Lord Cornwallis is a highly constructive period, yet his plan of 1793 “is a standing testimony to the maturity of judgment, the breadth of outlook and the liberty of vision and conception with which Cornwallis approached the task judicial reconstruction in the last year of his governor general ship in India.” Thus, the whole system under the regulation act of 1793 introduced many reforms Sir George bard low assisted lord Cornwallis in drafting a signal set of 48 regulations which was issued on 1st may 1793 known as Cornwallis court. His schemes formed the high water mark in the whole of the Indian Legal History.
Leglashala feels immense pleasure to announce our newest list of selected students as Legal Research Intern! We had a huge set with more than 3000 applications out of which few stood out of the crowd and with their fair presentation of writing skills and up to par thought process, Legalshala announces a list of 25 students that we find fit for the role:
Divya Samriti - @divyasamriti11
Sailasri Puligedda - @sailasripuligedda333
Deepsea Chakraborty - @deepsea654
Diana Carolyn Peters - @dianapeters59601
Ramya S R - @ramyaravichandran652001
Ashlin Joseph - Ashlin Joseph
Hritik Shekhar - Hritik
Shreya Upadhyay - @shreya2404upadhyay
Diksha Rastogi - @diksharastogi21
Jotham Cherian - Jotham
Vaishnavi Dandotikar - Vaishnavi Dandotikar
Amisha Chauhan - Amisha Chauhan
Mansi Rathi - @mansirathi2103
Pariyal Gupta - pariyalgupta_
Harshita Kothari - @harshita.kgckgc
Kshithija Prakashan - kshithiprax21
Shreya Yadav - Shreya5979
Abhay Pratap Singh
The selected interns will be informed of further proceedings via the registered email address at Legalshala. The interns will go through an intense yet exciting one-month virtual internships in a competitive environment.
Also for others, we keep posting new updates regarding internship opportunity on social media and also, best contest performers gets a direct entry for Internship opportunities at Legalshala.
One of the most controversial and talk of the nation which has created much hue and cry not only in India rather across the world - the CAA. So, before getting into constitutionality of the Act, NRC and NPR, let's first see what they are all about.
● CAA: The Citizenship (Amendment) Act, 2019 is an amendment in the Citizenship Act of 1955 which allows, Indian Citizenship, to Hindus, Sikhs, Buddhist, Jain, Parsi, Christian, and others who are exempted by central govt. under any other law for the time being in force, who entered India without any valid documents from neighboring countries of Pakistan, Afghanistan and Bangladesh on/before 31 Dec. 2014.This amendment has added a proviso to definition of term 'illegal migrants'. The amendment also relaxed standard period of residence for naturalization for these migrants from 11 to 5 years.
● NRC: It is a national register of citizenship which will contain official listings of all the citizens.Though no such mandate has yet been passed regarding NRC but, during the discussion on CAA, Union Home Minister Amit Shah announced that government would bring nationwide NRC.
● NPR: National Population Register is a list of usual residents of the country. It is being prepared at local, Sub-district, district, state and national level under provisions of Citizenship Act 1955 and the Citizenship Rules, 2003.
At the moment large no. of petitions are pending before apex court for India and the view of Supreme Court is still awaited on the constitutionality of the Act. Therefore, all the expressed opinion herein is my personal view, based on the available facts.
The confusion prevailing about CAA-NRC-NPR are creating serious ramifications across the nation along with the religion divide. In first place, controversy is regarding the amended term 'illegal migrants' of CAA, 2019 which is alleged to be the basis of discrimination on the particular religion and thereby is alleged that it violate Article 14 of the Constitution. Article 14 guarantees equality before law and State is bound to provide equal protection of laws within Indian territory. However, restriction under Article 14 has an exception which allows unequal treatment with unequal person. Having said this, the Constitution, acknowledges the inequalities in the society and understands giving equal treatment to unequal person leads to injustice and therefore, allows intelligible differentia. That is to say, a difference which is capable of being understood and which has a reasonable nexus with an objective to be achieved is allowed. (D.S. Nakara vs. Union of India)
The SC in the case of D.S. Nakara vs. UOI referred to the decision in Menaka Gandhi vs. UOI (1978 SC). An excerpt from the decision is as follows - Equality is a dynamic concept with many aspects & dimensions and it can't be imprisoned within traditional & doctrinaire limits......... The principle of reasonableness is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding Omnipreserve.
Hence, decision clearly lays down that Article 14 forbids class legislation, it doesn't forbids reasonable classification for purpose of legislation. However, to pass the test of permissible classification, two conditions must be fulfilled that -
i) classification must be founded on intelligible different which distinguishes person or things that are grouped together from those that are left out in group; and (D.S. Nakara vs. UOI)
ii) differentia must have a rational relation to the objects sought to be achieved by statute question. Thus, CAA, 2019 should pass the above twin test in order to survive the test of Article 14 (for Constitutionality).
1.Intelligible Differentia The amendment added a provision that any person belonging to the communities - Hindus, Sikhs, Buddhist, Jain, Parsi, Christian, and others who are exempted by central govt. under any other law for the time being in force, who entered India without any valid documents from neighboring countries of Pakistan, Afghanistan and Bangladesh on/before 31 Dec.2014 shall not be treated as illegal migrant. Though amendment has no mention of Muslim community. Such exclusion was perceived and made a debated issue just to create controversy and create fears in the mind of existing citizens of the Country. The language of the added provision (amendment) makes a reasonable distinction b/w the two groups. As the amendment is restricted to three Islamic Countries where Islam is the official religion and the said communities form minority groups in those countries, having fear of persecution on basis of religion, thus, differentiation becomes reasonable.
2. Rational relation with objective The statement of object and reasons of the CAA, 2019 amendment states that Islam being the state religion of Pakistan, Afghanistan and Bangladesh, minority communities have faced persecutions there and many such persons have fled to India to seek shelter and have continued to stay in India.The amendment seeks to provide protection to such individuals. The amendment simply provides relaxation to these minority by easing it and expedits the process for acquiring citizenship. Also, the amendment does not prohibit persons belonging to Muslim community from applying for citizenship of India and the position of foreign Muslims remains unchanged by the amended Act.
The debate surrounding the amendment also raises questions on inclusion of minorities from only three countries where Hindus are a minority. Other questions revolve around ignorance of the government to the fact that even certain groups within the Muslim community face persecution in these three countries.However, the answers to such questions fall under the sphere of policy decision and are not the subject of Article 14 of the Constitution. So far as the constitutionality of the Amendment is concerned, it, in my opinion, passes the twin test laid down in Article 14.
And as per Article 11 of the Constitution too, it is within powers of Parliament to make any provision w.r.t acquisition and termination of the citizenship and all other matters relating to citizenship.
At last, I would like to say, as the 'sentinel on the qui give of Fundamental Rights, it is the court who needs to restore peace in the country by giving its verdict on the issue, thus, we should wait and look for it.
“Man’s house is his castle”
The above well-known proverb is now getting legal recognition as Right to Privacy as man’s house is his castle which protects him from heat, cold and rain. Similarly, right to privacy as a fundamental right protects an individual to be free from unwanted or undue intrusion or disturbance in one's private life or affairs.
Human beings have a natural need to autonomy or control over confidential part of them. This need is inherent in human conduct and now this has been recognized as fundamental right to privacy. It is not a right against physical restrains but it is a right against psychological restrain or encroachment of right. USA, UK, India, and at International level UDHR, ECHR, ICCPR has perceived this privilege as major fundamental right.
Privacy per se is an undisputed right of an individual extensively fortified with his/her life. Privacy becomes a matter of discussion when it is misused or misguided by erroneous individuals. A Breach of privacy by oneself is less effective whereas when deployed by third party is heinous. The disclosure of private data by outsider brings disrespect and disgrace to casualties in spite of the fact that they are ignorant of. "Right to privacy is really important. You pull that brick out and another and pretty soon the house falls."
To ensure the protection of the people, there was an enthusiastic need of making privacy laws with the goal that every individual making most of his privileges and interests is protected under right to privacy and the individual who encroaches this right is rebuffed by the court. Yet, in India the street for protection to turn right to privacy into an essential right was not in any way simple since privacy was not referred as a Fundamental Right in any place in the Constitution of India.
Even though projected matter is of national interest primarily there is a right infringement complied with it. In the lights of judicial decisions right to privacy is protected as an intrinsic part of life and personal liberty enshrined under Article 21 of Indian Constitution.
A Recent Landmark Case in relation to Right to Privacy
Brief facts of the Case: In the case of Justice K. S. Puttaswamy (retd.) vs. Union of India 2017, a 91 year old retired Judge K.S. Puttaswamy filed a petition in the Supreme Court of India. Stating that Aadhar act violates the right to privacy. This case was actually concerned with an issue to challenge the government’s Aadhaar scheme (a form of uniform biometrics based identity card) in which the government made mandatory for availing the government services and benefits. The petition was made before the three judge bench of the supreme court on the basis that this violates the right to privacy.
For the issue of right to privacy, constitutional bench was set up and concluded that there was a need for nine-judge bench to determine whether right to privacy is covered under article 21 of constitution and whether the right to privacy can get the status of fundamental right.
The petitioner argued before the bench that ‘Right to Privacy’ is a Fundamental right and is covered under Article 21 of the Constitution that guarantees a person the right to life with dignity. Submissions made by the respondent were that the Constitution just perceived individual freedom which may incorporate Right to Privacy to a restricted degree.
Decision of the Supreme Court: The nine-judge bench of the Supreme Court held that the Constitution guarantees Right to Privacy as an inherent part of Article 21 of constitution i.e. the right to life and personal liberty. Thus, this gives the Right to Privacy as the status of fundamental right under article 21.
At this point, privacy have established in our major rights. It never confronted such a solid test of its reality as it looked under the watchful eye of the nine-judge seat on account of K.S. Puttaswamy v. Union of India in 2017 and overruled the decision of M.P. Sharma and Kharak Singh. After the death of the ongoing judgment in 2017 obviously right to privacy is a major right and it won't lose its status among the Golden Trinity of Article 14 (Right to Equality), Article 19 (Right to Freedom) and Article 21 (Right to Life and Personal Liberty).
Unanimous judgment by the Supreme Court of India (SCI) in Justice K.S. Puttaswamy (Retd.) vs Union of India is a resounding victory for privacy. The decision is the result of a request testing the protected legitimacy of the Indian biometric identity scheme Aadhaar. The judgment ringing endorsement of the right to privacy as a fundamental right marks a watershed moment in the constitutional history of India. The one-page request marked by each of the nine appointed judges proclaimed that the right to privacy is ensured as an inherent part of the right to life and individual freedom under Article 21 and as a part of the freedom guaranteed by Part III of the Constitution.
What matters is not just the outcome but its future far reaching implications. It is a big deal overruling the eight-judge bench order. Nine-judge bench is a rarity, it is even more rare when the nine-judge bench is speaking in one voice unequivocally stating that privacy is fundamental right.
The way that all the judges unanimously descended on this argument shows how much the government misjudged the protected underpinnings of privacy as a value in it and as an ineluctable facet of human dignity.
The government argued that privacy is “so amorphous as to defy description”, that it is unnecessary to consider it as a basic right as it is in common law, and that it has been given statutory protection in different forms. There was even a recommendation that privacy is an imported worth and that it is elitist. All these arguments fell by the wayside.
After perception of these entire cases one can say that Right to Privacy is identified with a person’s very own freedom, which prompts to be perceived as a Right to Life.
The right to privacy extensively incorporates physical privacy, informational privacy and decisional independence. The transaction of technological advances and the right to privacy in the digital age should be firmly investigated. But, regardless of any innovative changes, the regard of the right of people to settle on a decision of how and where they need to live, work and seek after their individual dreams must be ensured.
So, it can be concluded that, “Privacy is an inborn human right, and a prerequisite for keeping up the human condition with dignity and respect”.
Who tells the truth; who has lied
For a just society; it is the fight
To argue, and debate is everybody's right
The law itself says “Justice delayed is justice denied’’
Indian Judiciary- one of the three major organ as per the institutional arrangement of government of India seems to be a complicated machinery to a lay man with the woof and warp of its intricate nuances, however it can be understood, by the saying of Saint Kabira that “A child is like an earthen clay, it is in the hands of the potter to give it a shape that is to make it or to break it’’. Likewise, Indian judicial system is the potter of our nation and it is in their hands to give a shape to Indian democracy.
After independence, the ‘Golden Bird’ India was not only blessed with freedom but also with the power to govern the act of the people, i.e., through the Indian judiciary. And since then Judicial Branch has worked efficiently by acting as ICU of constitutional democracy. It was seen in Kesavananda Bharati v. State of Kerala. The case that saved Indian democracy. Justice Untwalia has compared the Judiciary to “a watching tower above all the big structures of the other limbs of the state” from which it keeps a watch like a sentinel on the functions of the other limbs of the state as to whether they are working in accordance with the law and the Constitution, the Constitution being supreme”.
The provision of an All-India judicial service (AIJS) on the lines of the Indian Administrative Service and the Indian Police Service was mooted soon after Independence. The provision of AIJS was included in Article 312 of the Constitution through the 42nd Amendment in 1976.
Now the question that arises is how to enter in this field of Indian judiciary. Do we only have to give exams? What is this field all about?
Talking of Indian judiciary as a field and discipline, it is the most transpicuous field in order to provide justice to people as “Law without justice is wound without cure”. However, some of the people who may desire to enter the field of judiciary only sees the virtual wounds of injustice and are of the mindset that those having Godfather in this field will be able to enter the field. Unfortunately, this is not the scenario!
As Indian judiciary is firstly, Accountable and Transparent- AIJS has made the judiciary more professional, accountable and equitable. Secondly, Recruitment of the best talent- AIJS has ensured that the method of recruitment is transparent and efficient, so that the best talent in the legal profession is attracted. Likewise, the chance of advancement of the district court judges to the High Courts at a beginning period would increase as they currently join the High Courts a much later than the judges from the Bar. Thirdly, it Checks pendency of cases- Streamlined and objective recruitment process would ensure a regular stream of high-quality judicial officers for vacant posts, which would reduce the case pendency. Lastly, Overall efficiency- A well-organized system of recruitment of the judicial officers will attract the young talent from the law schools and young, well-informed judicial officers at the level of additional district judge will make a difference and help in making the judicial system work more efficiently.
India, most states have their own State Judicial Service examination with different patterns and exam processes. Through these examination, desired ones can enter into this field with their hard work and determination. Each of these State Judicial Services performs their own training, usually by conducting examination and interviews.
Besides, it gives an opportunity to the selected candidates to serve the country. Around 50,000 to 60,000 candidates appear for Judicial Services Examination every year, but only those who studied with a purpose and according to a plan, succeed and achieves a rank which is required to enter into this field.
In order to crack the Judicial Services examination, a candidate may either adopt the mechanism of self-study or may take the assistance of a coaching institute.
Preliminary Examination - Mains Examination - Viva-Voce/Personal Interview
For the preliminary examination, the emphasis remains on the thorough study of the bare Act, while conceptual clarification about the different principles of law is required for the analysis of Mains examination.
As far as the interview is concerned, apart from the thorough knowledge of the current affairs and the basic general knowledge, the focus should be on various important concepts of law as prescribed under IPC, CPC, CRPC and Evidence Act.
In India, a total of 24 states conduct judicial service examination which is the best way for those who have an inclination towards public services to enter into this field. Not only it is a way to remain closely connected with the law and judiciary throughout their professional life, but also the one that offers the satisfaction of working for the welfare of society- an intellectually stimulating profession where you shall command the respect of the common citizen.
The Indian Judicial System occupies the highest place in people’s conscience and confidence. The judiciary is looked upon as the last Bastian of hope when other government machinery fails to do their jobs. The trust and faith of the people of India is a sine qua non for the judiciary to be running successfully.
There is always a scope of improvement in every field so as judicial accountability needs to be more efficient in working. Judicial accountability is asked and more over demanded because it is the most powerful branch to deliver justice as being the fundamental right of the people. The road to securing judicial accountability, therefore, is still long and hard but proper accountability for such a powerful and vital organ like the Indian judiciary is vital for the survival of the Rule of Law and constitutional democracy in the Country.
The judiciary has done itself proud and the people of India can rightly claim that the very independence of the judiciary is the sufficient proof of the success of democracy in our country. With taking a few steps towards a more transparent Judiciary with an efficient and accountable judicial system where Rule of Law prevails and in this context it is perhaps relevant to quote Abraham Lincoln, who said- “The best way to predict your future is to create it”. Indian judiciary is working hard to create an efficient Judicial future. As judiciary is like ‘salt in food’ of our nation, absence of which makes the food tasteless, similarly, absence of justice will make our country flavourless.
False Imprisonment may be defined as an act of the defendant which causes the unlawful confinement of the plaintiff. To constitute false imprisonment certain factors such as probable cause for imprisonment, knowledge of the plaintiff for imprisonment, intention of the defendant while causing imprisonment and period of confinement matters.
A private individual, a police officer or any public authority can falsely imprison a person as well. For imprisonment it is not necessary that the person should be put behind bars, but he should be confined in such an area from where there are no possible ways of escape except the will of the person who is confining the person within that area. It is not the degree of the imprisonment that matters but it is the absence of lawful authority to justify unlawful confinement which is of relevance.
Elements of a false imprisonment claim
All states have false imprisonment laws to protect against unlawful confinement. To prove a false imprisonment, claim as a tort in a civil lawsuit, the following elements must be present:
· There was a wilful detention;
· The detention was without consent
· The detention was unlawful.
False imprisonment can come in many forms; physical force is often used, but it isn't required. The restraint of a person may be imposed by physical barriers (such as being locked in a car) or by unreasonable duress for example, holding someone's valuables, with the intent to coerce them to remain at a location.
To claim false imprisonment, you must reasonably believe that you were confined; a court will determine whether the belief is reasonable by determining what a reasonable person would do or believe under similar circumstances. Additionally, the actor must have the intent to commit the confinement without the privilege to do so. For instance, shopkeepers investigating shoplifting or civilians who have witnessed a felony have necessary privilege to meet legal standards.
There are three remedies for false imprisonment. They are damages, habeas corpus and self-help. Being a tort, the basic remedy for false imprisonment is an action for damages which can be due to physical or mental suffering, loss of reputation or even malicious intent on behalf of the defendant. If a person is unlawfully confined than he can be released from such confinement by the writ of habeas corpus. A person can also use reasonable force in order to escape from the confinement.
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