meghna – Page 4 – Legal Drift

Will the quality of justice improve by the creation of National Judicial Service?

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National Judicial Service has been one of the most political-legal contentious issues in the judicial history of India. The debate has continued for years. On one hand the law ministry and the legislature intends to introduce the National Judicial Service in the country where as on the other hand the judiciary intends to postpone the same.

Why do judges oppose the commission of All India Judicial Service?

There are four basic ways of judicial appointments:-

1. By political institutions (Partially practiced in Italy and South Korea)

2. By judges themselves (Japan, Iraq and India)

3. By non-judge members (Brazil and Most American States)

4. Through Election (Some American States like Washington)

Presently in India, the appointment of district judges is done by the governor on consultation with High Court Judges by the purview Article 233(1) of the Indian Constitution. The Chief Justice of a High Court is consulted by the President before the appointment of any High Court Judge. These appointments are highly politicized and partial in many respects. The lower judiciary is under the dominance and control of the High Court. The district judges have to please the Chief Justice for their promotion as a High Court Judge. The commencement of Indian Judicial Service would surely decrease the power of High Court judges with reference to appointment and recruitment of judges.

When did it start?

The clause related to All India Judicial Service was incorporated in Article 312 (which deals with ALL INDIA SERVICES) by the 42nd Amendment, 1976. The clause specifically provides that Parliament in national interest may create judicial service for one or more states on request of the council of states. The provision clearly states that any post subordinate to district judge would not be included in the All India Judicial Service.

The creation of National Judicial Service is objected on three grounds:-

1. Impairment of Independence of Judiciary

2. Lack of regional language proficiency would affect the delivery of justice.

3. It would be deterrent to the interest of those who have already entered the service.

All the three contentions do not hold water. Appointments and recruitment would not affect the independence of judiciary rather it would ensure the autonomy of lower judiciary. Secondly, it is suggested that the issue of inadequate language knowledge can be easily addressed with proper allotment of states or study of multiple languages can be included as a part of judge-training. Lastly, since it is suggested that only 25% of judges in each state would be drawn from the All-India cadre; the same would not be detrimental to those already in service.

National Judicial System vis-a-vis Civil Services

The judiciary is not considered a lucrative career by most of the lawyers. The profession fails to attract a large number of competent lawyers. This adversely affects the quality of justice in the courts, which further results in delay of justice. In 2009 there were about 53,000 cases pending in SC, 40 lakh with High Courts and about 2.7 Crore in lower courts. The two main reasons for this high pendency of cases are High vacancy in courts and low judges-to-population ratio. In India the current judge-population ratio is 12.5 per million people where as in U.S. it is 114 per million. Presently 23% of sanctioned strength of the Supreme Court, 26% High Courts and 18% of Lower Courts is vacant.

Each year about 200,000 youngsters compete through an examination to enter services like I.A.S or I.P.S. The candidates are selected on merits and competency for a rigorous training of two years. If a similar system is also incorporated in the judicial services, well-qualified and competent lawyers could be attracted to the posts of judges. It would not only increase the judge-population ratio but would also improve the quality of justice.

Health Sports World

Performance Enhancers can be Reputation Damagers – Increasing Doping Scenario in Sports

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Today 13 out of the 29 probable Kabbadi players for the World Cup Kabbadi Punjab 2010 were tested positive of doping. The incidence once again proved that sports and drugs have a close nexus with one another. The issue of performance enhancing drugs has remained contentious throughout the globe. The primary rational behind prohibiting use of drugs is in sports was to prevent any deterioration of health. However the emphasis had later shifted to fair competition and professional ethics. The prohibition is mainly supported on two grounds i.e. moral and physical.

The doping test is conducted by detecting the presences of banned substance in the urine samples of the competitors. But it is argued that the dope test faces difficulties due to various reasons:

1. Substances like Human Growth Hormone (H.G.H) or erythropoetin (E.P.O) are also naturally produced by the Human Body. Hence even if the presence of these hormones is established it is very difficult to detect that the same were administered unnaturally.

2. The athletes usually switch drugs or consume unbanned drugs or even take help of masking agents to deceive doping tests.

3. Domestic Legislation and laws of various countries have proved contrary to the decisions of pioneer sports authorities like IOC, International Amateur Athletic Federation (I.A.A.F) and Federation of International Football Association (FIFA).

4. The credibility of testing agencies has been questioned time and again.

5. The inefficiency of developing countries to have expensive testing regimes.

Categorization of Drugs

There are two types of drugs: the prescribed and the proscribed. The former being legal whereas the latter being illegal. Prescribed Drugs are not considered bad as they are taken https://www.fertileheart.com/buy-prednisone-online/ under medical supervision and are less detrimental to health. On the other hand the banned drugs contain high health risks. However it is argued that many prescribed drugs may lead to cardiac problems, convulsions or even death in certain cases. They may have fatal consequences in the long term. It is observed that addiction may result if these drugs not carefully administered.

Criticism

It is contended worldwide that over dose of any drug (including caffeine) may cause hazardous health consequences. Thus there must be a clear distinction between “medical treatment” and “medical abuse”. If it is possible to enhance the performance of an athlete by controlled administration of certain harmless or less harmful drugs it would definitely not amount to abuse but medication. Studies have demonstrated that medically controlled drug program would create a balance between health and sports. It would not only decrease the side-effects of steroids but would also enhance the performance of players. Moreover many people argue that Performance Enabling Drugs must be legalized as Anabolic-androgenic steroids (AAS), which facilitates early healing in athletes.

Most of the athletes consume high dosages of highly refined dietary aids, vitamin and carbohydrate supplements which may cause substantial harm. The safe use of performance enabling drugs is essential. It must not be detrimental to the health of the competitor. As mentioned before the credibility of various testing laboratories still remain in question. Another concern in this regard is that status of legality of many drugs varies from one country to another. This definitely hinders the harmonization of rules related to drugs on a global level.

Health Social Issues World

I’m dating you doesn’t mean you can date rape me.

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Sara went to a bar to party with few of her friends. When she went to rest room one of her friends. Jacob carefully poured a colorless, odorless and tasteless powder in her drink. Coming back she consumed the drugged drink without knowing its consequences. Next morning she found herself in the bed of the accused. Under the effect of the drug she knew about nothing that had happened the previous night. The accused possessed some photographs of the previous night, which he used to threaten and blackmail the victim. The victim was victimized for months and due to the fear and guilt she remained silent and confided in nobody. Ultimately she committed suicide to get rid of this miserable condition. This story may become a reality in life of any woman. Date rape is something we feel would never happen to us but it is a dangerous mistake to believe so.

It is unfortunate that many victims of date rape or acquaintance rape commit suicide. Recently a 15 year old girl committed suicide when she was gang raped by her boy friend and his friends. Bijal Joshi rape case which formed the headlines in 2004 was no exception. The lower court has recently awarded the five accused (Sajal Jain, Sugam Jaiswal, Ashok Jaiswal, Chandan Jaiswal and Karan Jain with life imprisonment. Bijal Joshi (24 years) was allegedly raped by her boy friend Sajal Jain and his four friends on the New Year’s Eve in a room at Hotel Ashok Palace, Ahemdabad. When the police took no notice of her complaints, she committed suicide leaving a suicide letter which mentioned the names of all the accused.

It is estimated that around 70,000 college students in the United States are victims of drug rapes or sexual assault every year. Mostly drugs like Rohynol, Ketamine and GHB are administered to commit such crimes. They are also known as predator’s drugs or club drugs. Their effects are generally permanent and a woman may not be able to conceive ever if administered such drugs.

Rohynol:

1. Its effect starts within 10 minutes of ingestion which can continue up to eight hours.

2. It may cause difficulty in walking, nausea, confusion, dizziness, muscle relaxation, slurred speech and impaired judgement.

3. However it is banned in U.S., it is legal in almost 60 countries including U.K. and Mexico as it is used as a medicine for insomnia.

Ketamine:

1. It is administered through injections in veterinary practice .

2. Causes hallucinations, numbness, aggressive behaviour, vomiting and dream-like effects.

3. It is available in both liquid and powder form.

GHB:

1. It is available in powder or liquid form and is easily slipped into a drink.

2. It causes unconsciousness, dizziness, drowsiness,sweating, nausea and respiratory problems.

3. Although the drug is odorless and colorless, it is quite salty.

How to protect yourself?

Don’t accept or share drinks. Never leave your drink unattended, even if you are going to the washroom. If you find something suspicious in your drink pour it out immediately. Have a non-drinking friend with you at a party. Don’t hesitate to take help, if you feel you have been drugged. Choose taking drinks from a closed container and not from a pitcher.

What must be done by a date-rape victim?

1. If you believe that you are a victim of date rape take medical help. A urine test within 72 hours of the administration of the drug would reveal the presence of drug in your system.

2. Inform the police. To avoid any sort of harassment by police, consult and take help of a N.G.O .

3. Don’t hold yourself responsible for the tragedy. Counseling would definitely help you to get over your guilt.

4. Suicide is no option. It is not the victim but the perpetrator who deserves punishment.

Indian Penal Code

Although we don’t have any specific laws related to Date Rape or acquaintance rape, the section 375 of Indian Penal Code, clearly states that sexual intercourse without the consent of victim is considered to be rape. It further states that, if consent for sexual intercourse is obtained by intoxication; then also rape would be deemed to have occurred. The minimum punishment for rape as prescribed under Section 376 is seven years. Hence a victim may take the benefit of the above section.

Criticism

It is unfortunate that some people believe that rape was justified if a woman asks the male out. Some of the perpetrators claim that they had right to have sex with their victims. Both the arguments are highly flawed; a man does not own his date. It is not obligatory on a woman to have sex with her partner. A relationship does not necessarily mean sexual relationship.

To prevent date rape a woman must be vigilant and careful. “Betrayal occurs only where there is presence of trust.” Both young males and females must be taught about sexuality in educational institutions. The risk factors and legal consequences related to rape must be discussed with students. It is the moral responsibility of every individual to inform police, if he or she feels that a woman is administered a club drug.

Legal Mirror Politics Social Issues

Are we prepared to deal with another Bhopal Gas Tragedy? With Civil Nuclear Liabilities Bill its hard to imagine

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The victims of the Bhopal Gas Tragedy, one of the world’s worst disasters are still facing the consequences of the unfortunate incident. The legal framework in 1985 was inadequate to conduct a fair trial of Union Carbide and its CEO Warren Anderson. The U.C.C paid a settlement amount of 470 million dollars to the victims, considering it as its moral obligation. No criminal or civil proceedings were initiated against the notorious Multinational Union Carbide. The decision of Bhopal Gas Tragedy still considered a black chapter in the judicial history of India.

Instead of rectifying the flaws that were observed in the Bhopal Disaster Case, the United Progressive Alliance (U.P.A) government was planning to put forth the Civil Nuclear Liability Bill. However due to the mass opposition from all the sectors of the society, the government had to eventually withdraw its scheduled introduction in the Parliament.

The Nuclear Liability bill was highly criticized on its provisions related to compensation including capping of nuclear operator liability, fixing maximum liability amount and the absence of direct liability of supplier. It is also contended that the maximum liability mentioned in the bill is the minimum liability considered in United States.

The government is also planning to be a part of the Convention on Supplementary Compensation (CSC), which is funded by the International Atomic Energy Association. The convention which is yet to be operational is so far ratified by only four countries amongst which U.S.A is the only country with most of the nuclear installations. The parties to the convention contribute to an international fund which is then utilized to provide additional compensation beyond liability to the member states.

The bill clearly states that a three-tier compensation scheme would be instituted on occurrence of any nuclear accident. The maximum liability enumerated is 300 million Special Drawing Rights (i.e. Rs 2,100 crore). However Russia has fixed no maximum liability in such cases.

Unlike in countries like Germany and Finland, the bill fixes the liability of the operator to mere Rs 500 crores or 109 million dollars. When compared to the inadequate compensation granted in Bhopal gas tragedy (470 million dollars) the amount is found extremely low. It is also argued that capping liability is contrary to the judgment passed in the Oleum Gas Leak case. The Supreme Court in the judgment stated that the liability in such cases must be strict and absolute.

Further, the Clause 17-a of the bill has positioned an indirect and remote liability on the supplier. The right to recourse is only provided in cases of gross negligence or wilful act on the part of the supplier. However it does not include supply of defective articles. Any further appeal in a civil court is disallowed, if it is decided by Claims Commissioner or a Nuclear Damage Claims Commission, which deal with potential nuclear damage claims under the Clause 35.

It is unfortunate that the provisions of the bill are detrimental to the interests of its own citizens. The bill not only infringes upon the fundamental rights of the individuals by debarring their right to appeal and limiting right to recourse. It also enforces a heavy burden on the tax payers of the country. Relying on a convention which is yet to be operational, for supplementary compensation is highly flawed policy decision by the government. The consequences of a nuclear accident would be far more adverse than that of Bhopal Gas Tragedy. The government must reconsider its proposals for the betterment of the society at large.

Others

Indian Police – An Overview on Reforms Happening in the current system

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Introduction

Antarctica is a continent yet not a country. There is land but no citizens. It is the people who transform a piece of earth in to a motherland. Thus it is the citizens who can make a country worth living. There are many countries which have flourished in spite of antagonistic climatic conditions on the other hand countries which are self sufficient in themselves have faced numerous economic difficulties. I believe that citizens play an important role in the development of a country. They can build or destroy a nation’s future.

Why is it needed?

India’s population was about 1,129,866,154 in 2007. The statistics reveal that there is less than one i.e. 0.956207 police officer per 1,000 people whereas in Mauritius it is 7.28432 per 1,000 people. Therefore it is the responsibility of the citizens to help the country to prevent crime.

Recently I had a discussion about the image of police with an Inspector General of Police. He expressed his concerns about the corruption prevailing in the system. But he also mentioned that the morale of the police is highly affected by the reaction of public. “Even though both men in army and police are provided with uniform, former is given out most respect whereas the latter is belittled by all. It is a reality that many of our officers have tainted the image of the entire police force but some of them have also sacrificed their lives for the nation. Why is every police officer assumed to be corrupt or tyrant? Shouldn’t the public cooperate with the police to make India a better country?”

How can it be done?

The police of various states have initiated community policing programs in their areas. Most of them include:

1. Family Counselling Centres

2. Town/ Urban Defence Societies

3. Village Defence Societies

4. Child Friendly Police

5. Medical Relief to the Injured

6. De addiction Camps

7. Police help for Visually Challenged

Thus, police has been instrumental in protecting the interests of people by involving them. The Village Defence Societies have proved a great asset in combating menace of dacoity in villages. Due to V.D.S there has been an increase in rural education, plantation of trees and construction of roads. This has also reduced crime rates and communal tensions in the villages.

The police have been working for providing free immediate relief to an accident victim, a victim of domestic violence and a child in distress. With the commendable efforts of police visually challenged people were provide with talking books i.e. the notes of the class were recorded in a cassette and writers books consisting of hundreds of student volunteers including a large number of family members of policemen. These volunteers offered their services as writers for visually impaired students during examinations including Board of Secondary Education.

One of the major community policing initiative is the launch of De-addiction camps. These camps have provided treatments to the addicts. Camps are organized by the government and private doctors for about 45 days. The treatment includes medical, psychological and psychiatric treatment including sessions of Yoga. These camps are generally launched with active support of National Social Services, Red Cross Society and Doordarshan.

Conclusion

It is strange that the police are blamed for most of the crimes done in the society. We usually forget that most of the criminals sprout out amongst us. Most of us must have had a bad experience with them. But there are officers who are continuously working for the benefit of the society. It is essential that these officers are responded with faith by the public, otherwise their efforts would be ruined. It is even our duty to protect the people around us. On commission of any offense we must inform the nearest police station. It is a shame that we act as mere spectators on the site of an accident instead of helping the victim. We are as much accountable to the nation as any other politician or police man.

Legal Mirror

Is Public Interest Litigation the Pill for the ILLs?

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History of Public Interest Litigation:

The last two decades have witnessed the conceptualization of Public Interest Litigation in India. Through it the courts (High Court and Supreme Court) have acquired the power to grant justice to people on humanitarian grounds. It has ensured access to justice for the deprived, under-privileged and neglected segments of the society. Various public spirited persons and NGO’s have approached the court of law through this resort.

Section 32 of the Indian Constitution conferred a right upon every aggrieved individual to move to the Supreme Court or High Court directly on infringement of his fundamental right. However, Justice P.N. Bhagwati and Justice Krishna Ayyer , acknowledged that any individual or organization can approach the Supreme Court if any act is done contrary to the public interest.

Meaning of Public Interest Litigation

According to the Black law dictionary “Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.” Thus a PIL has following elements:

1. it is a legal action

2. Initiated in a court of law

3. for interest of people

Criticism

The PIL has given right to the under privileged to voice against the injustice done to them. In past the Supreme Court has considered complaints, newspaper reports and credible letters sufficient evidence for initiating proceedings. The court has empowered even third parties (who have no self interest in the matter) to file such litigation.

However the shield for public protection is misused by people as a sword for personal benefit. Organizations file cases under this ambit to evade heavy court fee. Sometimes people file such litigation to pursue their political ambitions. There have been instances of frivolous PIL like to rename India “Hindustan,” rename the Arabian Sea “Sindhu Sagar,” ban vastu, reiki, feng shui, tarot, palmistry, zodiac signs etc and replace the national anthem for one offered by the petitioner.

It has also infuriated the fight between the three organs of the state( executive, legislature and the judiciary). On one hand the judges like Justice S.B. Sinha advocates the importance of judge-made law on the other hand judges like Justice Markandeya Katju emphasis the importance of self restraint on judiciary. Some jurists have opined that judicial activism has now turned into judicial terrorism. It is alleged that about 20% of judges are corrupt. Thus Judicial Accountability is yet another concern in this regard.

The judiciary is also heavily condemned on absence of adversarial trial in PIL’s. Dr. Upendra Baxi has criticized that decisions in Bhopal Tragedy Case, WTO accession and Narmada Dame were dominated by the influence of the global economic elites on the Indian Judiciary. It is criticized that since there is no cross examination litigants may give inaccurate information to the court. The PIL’s are given predominance over the existing cases by the courts. Thus if there is a false or irrelevant allegation, it would be detrimental to the interests of many people. Recently a PIL was filed by a former MP M Narayana Reddy seeking direction to the Andhra Pradesh Speaker to decide on the resignation of over 139 legislators. The SC out rightly rejected his claim saying he had no locus standi on the issue.

Further it is a grave concern that there is no mechanism by which the court can check the effective implementation of its decision. In Vishaka v. State of Rajasthan, the SC had laid broad guidelines on sexual harassment but till date these guidelines have not been legislated.

Conclusion:

Judicial Activism has benefited a considerable number of people. In cases like Sunil Batra, Sheela Barse, Charles Shoobraj, DK Basu and Hussainara Khatoon, Supreme Court took a revolutionary step to safeguard the rights of the accused. Similarly in MC Mehta and Vishaka Case the court evolved directions to protect public interests. The objective of PIL was to over-reach every section of society sadly the same is not happening.

The Supreme Court records state that only 0.4% cases filed in the SC involve PIL. One hand the data reveals that PIL cases don’t hamper the normal working of the courts, on the other hand it shows that from the millions of letters send by ordinary people are neglected and only those through formal channel are entertained. Most of the cases relate environmental concerns, child labor and caste disabilities. There has been significant increase in cases filed by advantaged class ( 57.9% in 1961-1989 to 73.3% in 2000-2008) where as there is a decrease in that filed by the disadvantaged social class ( 71.4% in 1961 -1989 to 47.2 in 2000-2008).

I have personally met the victims of Bhopal Gas Tragedy. They write thousands of letters each day hoping that it would be entertained as a Public Interest Litigation. Their letters are till now unnoticed. It is disgrace that the benefits of P.I.L are not reaching the people for whom it was coined. Although the courts have been instrumental in protecting rights of people. There is a duty vested upon individuals too, lodging of frivolous complaints must be discouraged.

Bollywood Media Others

Emotional Atyachar – Can a Reality show really affect your beliefs in Relationships ?

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The Theme of the Show:

The television show “Emotional Atyachar” aired on UTV Bindass, examines the presence of fidelity in affine relationships. A person (referred to as lead) gives the information about a suspected cheater. The suspected cheater is the targeted by the crew of the show emotional atyachar. The sting operation is carried out for a period of three consecutive days. The suspect is usually introduced to a good looking undercover agent. The agent is only directed to be friendly with the suspect. After monitoring the conduct of the suspect, the footage of the hidden cameras is shown to the lead or his girl-friend/ boy friend.

Was Raja Chaudhari episode plotted?

A couple of days back I saw the Raja Chaudhari Episode being telecast UTV Bindas prime time show ” Emotional Atyachar”, although the show was quite entertaining I thought the whole thing was plotted. Raja’s girl friend (Shradha) had approached the channel for conducting a loyalty test on him. The two had been in a living relation for about 8 months.

Raja, a philanderer had become sexually comfortable with both the under-cover agents, that were investigating the lead on behalf of the team of Emotional Atyachar . Throughout the episode it was observed that the girl expected her partner to be a cheater. When she caught him red handed in a hotel room, he had no guilt or remorse whatsoever. He was quiet most of the time. Then he shamelessly went outside the hotel room.

Moreover the episode had two under-cover agents both of them were projected to be room-mates. Raja ignoring these facts openly flirted with both of them. As if he wanted both of them to know his open-mindedness.

May be my observation is flawed but I truly felt that the whole episode was plotted.

Was the Channel Involved?

In serials like “Raaz Pechle Janam Ka” or “Emotional Atyachar” the issues raised are very sensitive therefore it’s difficult to comment on the credibility of these shows. It is quite possible that the channel carries on its investigation in a bonafide manner. However it may be said that some people may manipulate this platform to gain publicity and public attention.

Is the serial affecting our society?

I had a talk with a number of people about the show. Most of them opined that Emotional Atyachar was very interesting and entertaining. Some people feel that the scenes telecast in the serial outrage the modesty of women. If proved may be tried under Section 354 of Indian Penal Code. Whereas others believe that the channel effectively conceals the vulgar scenes.

Another issue that is time and again raised is “the show cheating the suspects by alluring them”. If the above statement is taken into consideration the show and the channel would be prosecuted under Section 415 of Indian Penal Code. The punishment for cheating is prescribed in Section 417 of I.P.C. i.e. 1 year imprisonment/ fine/ both.

Another Controversy

Recently MNS had also objected on the show. Interestingly it was not on grounds of conduct of participants but on the use of word Bombay instead of Mumbai by one of the female participants spying on her boy friend. However the channel denied any threats from MNS. It has announced on the show that the city must be referred as Mumbai from now on.

Conclusion

The program is still on a nascent stage and to comment on the credibility of the same would be too early. The channel has the defence of showcasing the truth and therefore may not be tried for defamation. Moreover the undercover agents are directed by the organizers of the show not to induce the perpetrator in any sense. Till now the show is providing entertainment to the audience, relief to the innocent participants, punishment to the infidels and profits to the sponsors. In such circumstances even if the show is entirely plotted won’t it be a kin to other fiction serials showcased on television?

Announcements World

Legal Drift welcomes Wazhma Frogh

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Hillary Clinton And Michelle Obama Announce Int’l Women of Courage Award(Wazhma Frogh)

Wazhma Frogh needs no introduction. She has been awarded 2009 US State Department’s International Women of Courage Award by Michelle Obama and Hillary Clinton. Wazhma is presently pursuing her masters in international development law and human rights at Warwick University, U.K. She writes on her blog wazhmafrogh.blogspot.com – and has written for newspapers, including the Washington Post and The Guardian.

She has made difference in lives of many. Her work has been recognized worldwide. She has devoted the last decade of her life to mobilization for social change to benefit women’s rights in Afghanistan, focusing on such issues as women and security, legislative reform including the recent Elimination of Violence a participation.

She is a leading expert on the issues of gender-based violence and has worked tirelessly on the elimination of violence against women in Afghanistan. Frogh started her career at the age of 17, working with the most vulnerable women and children in refugee camps in Peshawar, Pakistan, bringing the voices of the camps to the national and international arenas though her media reporting.

Later on, she stepped into women empowerment through community-based approaches, and mobilized women’s development projects during the Taliban regime. While these efforts were organized in Peshawar, Pakistan, Frogh traveled frequently back to Afghanistan’s most insecure provinces to carry out her work.

She has also been associated with development projects with the UN and international organizations. She has also participated in the Women and Public Policy Program at Harvard University and the Law and Leadership Program at George Washington University, both in the United States.

A frequent representative and spokesperson to the regional and international arenas, Ms. Frogh is an outspoken advocate on improving women’s participation in the peace processes and conflict resolution mechanisms in Afghanistan and recently has been selected to participate in a series of regional peace dialogues between Afghan and Pakistan women to discuss common areas of concern and activism for regional security and stability.

It is an honor to be associated with Wazhma. She would contribute to legal drift whenever possible. Her posts would help our readers to understand the socio-legal situations in Afghanistan.

Legal Mirror Social Issues

Morality of Legal System in India – a Learning from My Recent Visit to BITS Pilani

meghna 7 Comments bits pilani paper presentation, economics and profit, indian legal system morals, law governors moral, lawyers moral values india, legal perspective morality, legal philosophy moral issues, legal value system india, legality and morality, morality of profilts, morals of society, morals philosophy, value driven organizations

I recently met Hayagriv Sridharan and Kushal Agarwal, two students from BITS, Pilani. They had presented a paper on “Morality of Profits”. One of them said “Do unto others what you would do unto yourself!” while making the presentation. This statement had a long lasting impression on me.

Bentham said that law is the greatest happiness to the greatest number. Thus the utilitarians believed that it is the morals of the society which determine the laws that govern an individual. Laws related to marital rape, abortion, incest and capital punishment often reflect the general will of the society.

Morals are usually regarded as a contextual and subjective notion that depends on the values of respective individuals. However, I think morals are the general notions that prevail in the society. Prohibiting Sati was an immoral act in 1830’s but proscribing sati in 2010 would be absurd and immoral now. Morality depends on the values shared by the society at large. Most of the morals like honesty, fidelity and helpfulness are propagated by all civilizations.

But are we losing these morals in the present scenario? Are we trading off success and morals? In many cases we are. A few months ago I met a lawyer who had successfully defended a case of a rapist who had raped 12 girls (some of them being minors). When I had discussed his approach with a leading doctor (who specialized in criminal investigation), he said morality has no relation with profession. It is a job and it has t be done that way. If that lawyer or doctor would have ever thought that this unfortunate incident could have happened to even to their families probably they would have not supported the perpetrator. Unfortunately these people support their claims by quoting Gita “Karam Kar Par Phal Ki Echa Mat Kar” (do your deeds without being worried about the consequences), but they forget that their deeds are leading to dangerous consequences for others.

I’m glad that if our previous generation feels that morals and success are alien to each other, there are a group of individuals who are determined to prove the contrary.

The legal system is definitely deprived of morals to a large extend, the victim is punished and the perpetrator is protected. Recently a gang rape victim was charged of perjury in the district court of Bhopal. She was threatened by the rapists to change her testimony, when she changed her statements in court. The court started proceedings against her. After the completion of the case probably she would undergo imprisonment for years.

The police, lawyers, judges and legislators have lost their values and compassion towards the victims. The legal system encounters hundreds of victims everyday, but the victim visits the courts once in a hundred days. He is not aware of the obligations of the court. Thus he is manipulated by the system at every stage. Most of times the police lodges the F.I.R on false or inadequate grounds. A substantial harm is done to the credibility of the case in the cross examination that is conducted in the district courts. The witnesses are bribed or threatened and most of them turn hostile. It is observed that the judges are often apathetic towards the rape victims.

Morality is a trait that comes from within and not from an external agency. Every individual is a responsible unit of society. Even an ardent reader of Gita must take into account the consequences of his actions on others. “Always perform your duty efficiently and without any selfish attachment to the results, because by doing work without attachment one attains Supreme.”- Gita

Legal Mirror Social Issues

Do you think you can Legalize your Second Marriage by Islam Conversion? Think Again!

meghna 3 Comments bigamy laws india, Christian Marriage Act 1872, Code of Criminal Procedure 1973, Hindu Marriage Act 1955, hindu marriage act india, IPC Sections 494-495, Lily Thomas v. UOI, muslim country bigamy laws, Muslim Marriages Act, Parsi Marriage and Divorce Act 1936, Sarla Mudgal v. UOI, section 494, Special Marriage Act 1954

Overview on Bigamy Laws and its Manipulations in India

Monogamy is an integral part of Christian Faith. In 1860 when Indian Penal Code was framed, Bigamy was declared an offence under Sections 494 and 495 is punishable with fine and imprisonment of seven years or both. Both man and woman can be punished under these sections.The Sections apply to all communities in the country apart from Muslim males. The tribal man and woman are also exempted from the same if their customary laws do not consider the plural marriages void.

The Hindu Marriage Act 1955 prescribes strict monogamy for Hindus. But the act is deficient in certain respects. The Muslim females can be punished for the said offence. Solmnization of marriage (performance of specific ceremonies) is given a lot of importance, which is contrary to the interests of the victim and helps the offender.

Existence of an existing valid marriage is an essential condition to prove the said offence. The accused must enter into a second marriage which must be valid. The subsequent marriage would be declared void under the section 17 of the Hindu Marriage Act.

Conversion to islam is often used as a shield to protect the conviction under section 494. Under the Muslim law an polygamy is allowed to a muslim male. He can thereby have four wives at a time. In Sarla Mudgal v. UOI , the Supreme Court held that if a marriage is solemnized under a particular personal law it cannot be dissolved by the application of another personal law. The parties have to be governed by the personal laws that governed them before the conversion took place. The courts must decide such cases on basis of equity, good conscience and justice.

In Lily Thomas v. UOI, the Supreme Court re-affirmed its decision. The court held that the the Sarla Mudgal Case did not violate the Article 20(1) and 25 of the Constitution. It does not hinder the right to freedom of conscience, religion or profession of an individual. Moreover the court said that conversion for purposes of commission of an offence of Bigamy has no sacred purpose and it only makes mockery of Islam.

Quran specifies that a Muslim male must treat all his wives equally. He should be able to maintain and satisfy them. If he is unable to do so he must remain a monogamist. Even the dissolution of Muslim Marriages Act,1939 treats unequal treatment between co-wives as a ground for divorce available to the aggrieved wife but no law can prosecute him for bigamy. In muslim countries like Pakistan, Bangladesh, Iraq, Syria, Jordan, Egypt, Yemen and Morocco bigamy has been subjected to administrative or judicial control while Tunisia and Turkey have legally banned bigamy.

“Since it is not the object of Islam nor is the intention of the enlightened Muslim community that the Hindu husbands should be encouraged to become Muslim merely for the purpose of evading their own personal law by marrying again, the courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law”.

The Law Commission Report suggests:

1. In the Hindu Marriage Act 1955, after Section 17 a new Section 17-A be inserted to the effect that a married person whose marriage is governed by this Act cannot marry again even after changing religion unless the first marriageis dissolved or declared null and void in accordance with law, and if such a marriage is contracted it will be null and void and shall attract application of Sections 494-495 of the Indian Penal Code 1860.

2. A similar provision be inserted at suitable places into the Christian Marriage Act 1872, the Parsi Marriage and Divorce Act 1936 and the Dissolution of Muslim Marriages Act 1939.

3. The Proviso to Section 4 of the Dissolution of Muslim Marriages Act 1939 – saying that this Section would not apply to a married woman who was originally a non-Muslim if she reverts to her original faith – be deleted.

4. In the Special Marriage Act 1954 a provision be inserted to the effect that if an existing marriage, by whatever law it is governed, becomes inter-religious due to change of religion by either party it will thenceforth be governed by the provisions of the Special Marriage Act including its anti-bigamy provisions.

5. The offences relating to bigamy under Sections 494-495 of the Indian Penal Code 1860 be made cognizable by necessary amendment in the Code of Criminal Procedure 1973.